The justices of the U.S. Supreme Court. (Reuters)

I’ve long been skeptical of claims that justices in religious freedom cases — and especially devoutly Christian justices, such as Justice Antonin Scalia — are biased in favor of Christians in religious exemption cases. To be sure, justices are people, and people have biases, usually in favor of their own groups. But justices also know quite well that their opinions will affect many more cases, including cases brought by other religious groups.

I’m also skeptical of trying to prove such biases simply by counting cases. Different cases involve different legal issues, and — especially when you have only a few cases in your sample — it may well be that any differential success rates stem from something other than religion.

But, for those who disagree with me on this methodological question, here are the results of all the cases dealing with the Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the two main sources of religious exemptions from generally applicable laws:

1.) City of Boerne v. Flores (1993): 6-3 defeat (Justices Sandra Day O’Connor, Stephen Breyer and David Souter dissenting) for the Catholic claimants who sought an exemption from historic landmark preservation laws for a church building that they wanted to alter. Of course, the case involved the broader question of whether the statute, as applied to state and local governments, was within Congress’s power; the majority said “no.” But that reinforces my point that many cases include different legal issues that can explain the result, and that the outcome in one case will affect many other cases, including ones involving very different religions.

2.) Cutter v. Wilkinson (2005): Unanimous victory for the three prisoner claimants, who were (a) a Christian Identity / Aryan Nation racist, (b) an Asatru / Odinist, and (c) a Wiccan. Their claims under RLUIPA were allowed to go forward because the court rejected an Establishment Clause challenge to RLUIPA (again, a broader question than just whether these particular exemptions should be granted).

3.) Gonzales v. O Centro (2006): Unanimous victory for the União do Vegetal (literally, “Union of the Plants”), who sought an exemption from the drug laws so they could perform rituals involving the hallucinogen hoasca. The UDV is technically described as a “Christian Spiritist” sect, but it’s safe to say, I think, that (a) the specific practice of the UDV is not at all a traditional Christian practice, (b) the UDV itself is culturally and theologically fairly far from the Christianity that the justices know (and, for some of them, love). I thus think that any in-group biases that justices might possibly have are not likely to come into play in cases such as this (or in the Santeria Free Exercise Clause case, Church of the Lukumi Babalu Aye v. Hialeah (1993), in which the religion also had some Christian components). I therefore categorize this as a case involving a non-Christian claimant.

4.) Sossamon v. Texas (2011): 6-2 defeat (Justices Sonia Sotomayor and Breyer dissenting, Justice Elena Kagan not participating) for the Christian prisoner claimant, on the question whether RLUIPA waived sovereign immunity for monetary damages.

5.) Burwell v. Hobby Lobby Stores (2013): 5-4 victory (Justices Ruth Bader Ginsburg, Breyer, Kagan and Sotomayor dissenting) for the Christian claimants.

6.) Holt v. Hobbs (2015): Unanimous victory for the Muslim claimant.

So, if we look at all the cases, we see that Christians had a 1.33-2 record, while non-Christians had a 2.67-0 record.

If we omit Boerne, Cutter and Sossamon, on the grounds that they dealt with cross-cutting issues that would affect many religious groups — and in which the particular claimant’s religious was just fortuitous (which is true of Employment Division v. Smith, as well, where a Native American Church member happened to be the losing claimant) — then we see that Christians had a 1-0 record and non-Christians had a 2-0 record.

Again, I stress that I do not think that counting cases this way, when there’s such a small sample and so many other issues involved (both in the cross-cutting cases and the cases that on their face resolve only a specific exemption question), is helpful. As we see from Holt, the Christian claimants’ victory in Hobby Lobby helped the Muslim claimant in Holt; and I’m sure Holt will help future Christian claimants (as well as non-Christian claimants), too.

But if you do believe in such counts, this is the count for RFRA and RLUIPA under the fairly conservative Supreme Court we have had since 1997.

* * *

Since we’re on this topic, let me mention a related claim that I’ve heard from some academics: that, at least in the 1960s to 1980s, “only Christians ever [won] free exercise cases” in the U.S. Supreme Court, with the implication that this reflected bias in favor of Christians.

I think this is wrong on its own terms. Cruz v. Beto (1972) — a free exercise case, though one involving a right to equal treatment rather than a right to accommodation — upheld a Buddhist prison inmate’s right to sue based on a prison’s refusing to give him the same opportunity for religious worship as that given to Christian and Jewish inmates. Likewise, Torcaso v. Watkins (1961) struck down a law that discriminated against atheists on the grounds that it violated the claimant’s “freedom of belief and religion” and “religious freedom”; though the case talks both about the Establishment Clause and the Free Exercise Clause, it was largely a free exercise case, and has been cited as such in other leading free exercise cases.

But even if we look just at the exemptions-from-general-laws cases, the argument that the court was somehow biased in favor of Christians is mistaken. First, the sample is very small: only five Supreme Court mandatory accommodation claims have been won by the claimants, and these cases have involved only three different kinds of claims:

  1. entitlement to unemployment benefits when a person was fired for observing his Sabbath (three of the five cases, with two involving Saturday observers and one involving a Sunday observer),
  2. entitlement to unemployment benefits when a person was fired for a religiously motivated refusal to work in arms manufacturing, and
  3. entitlement to an exemption from a compulsory education law.

Second, if we ask not who raised the claims in the five cases, but rather who practically — and obviously — benefited from those cases, we see that the holding of two of the five cases substantially (and perhaps primarily) benefited Jews, not just Christians. In 1963, when the first of these cases was decided, there were apparently under 350,000 American Christians who belonged to the prominent Saturday-observer denominations, but over 500,000 Orthodox Jews — the Jews most likely to observe the Sabbath — and 5 million more non-Orthodox Jews, some of whom may also have observed the Sabbath.

The exact numbers of likely claimants are unclear, but many Jews doubtless benefited. And the justices must have realized this: One of the justices who heard the first case was Jewish (Justice Arthur Goldberg), and just a few years earlier, the court had dealt with a different kind of claim brought by Jewish Sabbatarians.

So again this claim strikes me as unsound, for the same reasons I discussed above. But, hey, if you really think that head-counts of winners in Supreme Court religious exemption cases are the way to evaluate biases, then I take it you should conclude that the more liberal court of the 1960s to 1980s was biased in favor of Christians and the more conservative court of the 1990s to 2010s hasn’t been.