Last October, the United States Supreme Court began its term with the largest Conservative majority in nearly a century. And with several hot cases on the agenda – including abortion, gun rights and religious freedom – it’s clear the stakes are at an all time high.
Looking at the makeup of the court and the cases it examines, it’s no surprise that believers in America expect this to be a crucial term for religious freedom.
However, religious and conservative Americans have been disappointed in recent weeks with some of the court’s responses and its handling of several cases. For example, after a plea on an abortion case in Texas, there was panic about members of the conservative majority on the court who have become “lenient” on this crucial issue. The Court’s opinion has not yet been published but many are already asking:
Can we still count on the Supreme Court to defend our freedom?
While some have called these “setbacks,” believers should not lose sight of the big picture. Religious freedom has seen an incredible winning streak in the Supreme Court in recent years, and there are many reasons to hope for victory in future cases.
Recent Supreme Court rulings are no reason to panic
On November 1, the Court heard United States v. Texas. The Biden administration is suing to stop the Texas Heartbeat Act, a state law prohibiting abortions after a heartbeat is detected, typically at six weeks pregnant. In addition, instead of having the government enforce this abortion restriction, the law allows private citizens to prosecute those who perform abortions.
During oral argument, Justices Amy Coney Barrett and Brett Kavanaugh raised questions and concerns about how the law was drafted, worrying many conservative Americans about how these judges might vote on this case.
But keep this in mind: the court did not focus on the merits of the Texas abortion ban itself, but on a procedural issue of whether the Justice Department can prosecute and obtain a court order that would effectively prevent the law from being enforced.
Also, watch the Supreme Court’s response in Roman Catholic Diocese of Albany c. Emami, which he published the same day he heard argument in the Texas abortion case.
Court ordered New York’s highest court to reconsider its ruling against a coalition of religious charities that challenged the state’s mandate that employers must cover abortions in employee health insurance plans . This case was remitted to the lower courts for reconsideration in light of the Court’s decision in Fulton v. Philadelphia (2021), a ruling saying the government cannot discriminate against faith-based social service providers because it violates the Constitution. This response was very favorable to religious freedom.
The United States v. Texas is not the only case of abortion that the Court has accepted to hear this term. On December 1, the Court will hear oral argument in Dobbs vs. Jackson, involving a Mississippi law that prohibits abortions when a heartbeat is detected. The latter case is presented as offering the Court a historic opportunity to consider and perhaps set aside Roe vs. Wade.
More generally, keep in mind how important it is for the Supreme Court to review gun control and abortion cases. This suggests that the conservative majority in the court, instead of shying away, is ready to address these critical issues.
Big gains could be ahead for religious freedom
With several religious freedom cases pending for this mandate, the court’s conservative majority could also set a revolutionary precedent to protect Americans’ first freedom.
A recent study from the University of Washington in St. Louis and the University of Chicago noted that religious freedom is on an extraordinary winning streak in the nation’s highest court. Since 1953, the court has ruled in favor of religion 58% of the time. Almost three in five cases involving a religion have had a favorable outcome for religious freedom.
When examining this data, it is almost impossible to ignore the influence that conservative judges have had on religious freedom cases over the past decades.
Conservative judges from 1953 to 2005 (in the Warren, Burger and Rehnquist courts) ruled in favor of religion about 56% of the time. Compare that to Conservative justices during Chief Justice Roberts (2005-present), who have ruled in favor of religion 84% of the time. Perhaps the most important thing to take away from these data is this: The five most pro-religious freedom judges all sit on the Supreme Court right now.
Also, consider that First Liberty has won four religious freedom cases in the United States Supreme Court in the past four years. These victories include our victories in the name of:
Below is an overview of three key First Liberty cases pending before the Court this quarter:
- In our Maine School Choice case, the Institute for Justice and First Liberty will present oral argument on December 8. We ask the judges to affirm that no state should discriminate against parents who choose to send their children to a religious school.
- In our Coach Kennedy case, First Liberty is asking the court to overturn a lower court ruling that allowed a school district to fire Kennedy for silent prayer after football games. This could be a historic case. It presents an opportunity for the Court to review and set aside Employment Division v. Smith, a precedent that hampered the power of the First Amendment free exercise clause.
- In our New Life in Christ Church case, we are asking the United States Supreme Court to overturn a city court decision that denied a property tax exemption to a church in Virginia. Our lawyers argue that the government cannot tell places of worship who a minister is.
A conservative majority does not necessarily guarantee a favorable outcome in these cases. But Americans should have a sense of optimism when the highest court in the land is made up of judges who understand that their constitutional duty is to interpret the law, not to legislate on the bench.
In addition, the incredible streak of consecutive victories for religious freedom should give people of all faiths great hope that the Supreme Court remains – and will continue to be – a reliable protector of our constitutional rights and freedoms.
Originally published First Liberty.
Jorge Gomez is a content strategist and senior writer for the First Liberty Institute. He previously worked as a communications and messaging strategist for faith-based nonprofits and conservative political organizations. He holds a degree in political science from the University of Central Florida and a master’s degree in public policy from Liberty University.