Bench Memos

Law & the Courts

Flipping the Liberal Script on Religious Liberty

Once upon a time, religious freedom was mostly about protecting religious minorities such as Jews, Native Americans, and Muslims. Nowadays, religious freedom is mostly about Christians who supposedly want to impose their views about abortion, contraception, and gay rights. Cases such as Hobby Lobby have opened the door to a host of novel claims, and the courts are now flooded with cases involving Christians who, we are told, want a license to “discriminate.” Exhibit A is this week’s Supreme Court oral arguments in the Masterpiece Cakeshop case.

This is a very common narrative from the left about religious freedom. But is it accurate?

Not by a long shot. A groundbreaking new study that I co-authored — the first of its kind since Hobby Lobby — upends this narrative in multiple ways. The study finds that religious-freedom cases are scarce — accounting for only 0.4 percent to 0.6 percent of the federal docket. Successful cases are even scarcer — with only a handful of successful cases in a large data set over a five-year period.

Even more importantly, religious-freedom cases disproportionately involve small religious minorities, like Hindus, Native Americans, and Muslims. These groups are involved in five to 17 times as many religious-freedom cases as their small share of the population would suggest. Christians, by contrast, are significantly underrepresented in religious-freedom cases — appearing in only one-fourth as many cases as their population would suggest.

The bottom line is that the common liberal narrative about religious freedom is false. Religious freedom remains disproportionately important for small religious minorities, not Christians.

But the mere fact that we are having this debate reveals a deeper problem: The Left’s commitment to religious freedom (or lack thereof) often depends on what religious group is making the claim. Claims by small religious minorities, like Muslims, Jews, or Native Americans, are met with sympathy. Claims by Christians are met with antipathy — especially when they clash with liberal commitments to abortion or gay rights.

But supporting religious freedom only when it protects favored groups is no support for religious freedom at all. At its core, religious freedom protects everyone’s ability to live according to religious truth as they understand it — even when most of society thinks they’re wrong. As Seamus Hasson, founder of Becket Fund for Religious Liberty law firm, put it, religious freedom is The Right to Be Wrong. It protects not only Jews who can’t work on the Sabbath, but also Christians who can’t endorse a same-sex wedding.

Thankfully, the courts have repeatedly vindicated this principle, even when left-wing groups such as the ACLU miss it. For example, Becket’s Christian clients in Hobby Lobby, the Little Sisters of the Poor, and Hosanna-Tabor won major Supreme Court victories over the ACLU’s opposition. And Becket’s Muslim, Native American, and Jewish clients won major victories with the ACLU’s support. Here’s hoping the Christian plaintiff in Masterpiece Cakeshop wins a major victory, too — and that the ACLU and others on the left start supporting religious freedom for all.

— Luke Goodrich is Deputy General Counsel at Becket and co-author of the new study Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases.

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