By Adam Liptak
The New York Times
“For many today, religious liberty is not a cherished freedom,” Justice Samuel Alito told the Federalist Society, the conservative legal group, in November. “It pains me to say this, but, in certain quarters, religious liberty is fast becoming a disfavored right.”
Those quarters do not include the Supreme Court, which has become far more likely to rule in favor of religious rights in recent years, according to a new study that considered 70 years of data.
The study, to be published in The Supreme Court Review, documented a 35-percentage-point increase in the rate of rulings in favor of religion in orally argued cases, culminating in an 81% success rate in the court led by Chief Justice John Roberts.
“Plainly, the Roberts court has ruled in favor of religious organizations, including mainstream Christian organizations, more frequently than its predecessors,” wrote the study’s authors, Lee Epstein of Washington University in St. Louis and Eric A. Posner of the University of Chicago. “With the replacement of Ruth Bader Ginsburg with Amy Coney Barrett, this trend will not end soon and may accelerate.”
The kinds of cases the court is hearing have changed, too. In the Warren court, all of the rulings in favor of religion benefited minority or dissenting practitioners. In the Roberts court, most of the religious claims were brought by mainstream Christians.
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