From marginal religious groups to mainstream Christians, there's a shift in Supreme Court cases
The court's first case involving a Rastafarian highlights the role smaller religious groups have played in the court's history, even as more cases come from mainstream Christian groups.
WASHINGTON – There has been no shortage of religious groups seeking help from the Supreme Court in recent years, including three cases last term that involved the Catholic Church.
But the religion at the center of a case set for after the summer is not nearly as well represented in the population − or in the courtroom.
In fact, it appears to be the first time the Supreme Court will hear an appeal from a Rastafarian.
Damon Landor said his religious rights were violated when his dreadlocks were forcibly shaved by Louisiana prison guards.
Handcuffed to a chair while his dreadlocks were shaved off
Landor had shown prison officials a copy of a court ruling that dreadlocks grown for religious reasons should be accommodated. But an intake guard threw the ruling in the trash, and Landor was handcuffed to a chair while his knee-length locks were shaved off, he says.
The justices will decide whether Landor can sue the guards for compensation under the Religious Land Use and Institutionalized Persons Act. Landor – whose appeal was backed by more than 30 religious groups and the Justice Department − argues that monetary damages are often the only way to hold prison officials accountable when religious rights are violated.
Legal experts on religion cases expect the court will side with the Rastafarian.
That would be consistent not just with the high success rate of appeals the court agrees to hear from religious people but also with the role smaller religious groups have played in the court’s history.
Jehovah's Witnesses and Seventh-day Adventists
Most of the religious cases Richard Garnett teaches in his classes at the University of Notre Dame Law School involve smaller religious communities, including Jehovah’s Witnesses and Seventh-day Adventists.
“The story of religious freedom in America has developed through cases involving members of minority religions,” Garnett said.
Other court watchers, however, say that was more true in the past than it is now.
“That’s kind of a legacy view,” said Carl Esbeck, an expert on religious liberty at the University of Missouri School of Law.
In fact, a 2022 study found that since 2005, the winning religion in most Supreme Court religious cases was a mainstream Christian organization. In the past, by contrast, pro-religion outcomes more frequently favored minority or marginal religious organizations, according to the analysis by Lee Epstein at Washington University in St. Louis and Eric Posner of the University of Chicago Law School.
“The religion clauses of the First Amendment were once understood to provide modest but meaningful protection for non-mainstream religions from discrimination by governments that favored mainstream Christian organizations, practices, or values,” they wrote.
Similarly, traditionalist Christians – such as orthodox Catholics and Baptists – had been significantly less successful than other religious groups in getting accommodations from lower federal courts from 1986 to 1995, according to a study by Michael Heise of Cornell Law School and Gregory Sisk of the University of St. Thomas School of Law.
But from 2006 to 2015, their disadvantage “appeared to fade into statistical insignificance,” they wrote in 2022.
The Supreme Court, they said, “appears to be setting the stage for a more equitable and expansive protection of religious liberty.”
Colorado and the gay wedding cake debate
Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, agrees that the court has taken an expansive view of religious liberty protections. But he says it hasn’t always been equitable.
In 2018, the court said Colorado had shown "religious hostility" to a baker who didn’t want to make a custom wedding cake for a same-sex couple.
But that same month, Mach said, the court upheld President Donald Trump’s travel ban “even in the face of Trump’s repeated unambiguous statements condemning Islam and Muslims.”
More broadly, he said, the court’s “general hostility to the separation of church and state” erodes protections for minority groups promised by the First Amendment’s prohibition against the government favoring a specific religion or favoring religion in general.
“Built into that structure is necessarily a protection against the imposition by the majority of its favored religious doctrine,” he said.
In February, Trump signed an executive order aimed at “Eradicating anti-Christian Bias” and calling on agencies to eliminate the "anti-Christian weaponization of government."
The administration cited that order when telling federal employees in a July 28 memo that they may discuss and promote their religious beliefs in the workplace.
Ruling for Amish built on to benefit other religions
In June, the Supreme Court built upon a 1972 ruling for the Amish as it affirmed the religious rights of parents to remove their elementary school children from class when storybooks with LGBTQ+ characters are being used.
When deciding more than 50 years ago that Amish parents did not have to keep their children in school until age 16 as Wisconsin required, the court said those parents had an argument “that probably few other religious groups or sects could make.”
But Justice Samuel Alito left no doubt about the broader significance of Wisconsin v. Yoder in the 6-3 opinion he wrote in June that sided with parents from a variety of religious backgrounds − including Roman Catholic but also Muslim, the Ukrainian Orthodox Church and other faiths − who objected to the LGBTQ+ storybooks used in a school district in Maryland.
“Yoder is an important precedent of this Court, and it cannot be breezily dismissed as a special exception granted to one particular religious minority,” Alito wrote.
In a speech in 2020 to the conservative Federalist Society, Alito had warned that “religious liberty is in danger of becoming a second-class right.”
He listed examples of cases he had judged about religious minorities, including the rights of Muslim police officers to have beards, of a Jewish prisoner to organize a Torah study group, and whether a Native American could keep a bear for religious services.
The baker who didn’t want to make a cake for a same-sex wedding and Catholic nuns who objected to insurance coverage for contraceptives “deserve no less protection,” Alito said, referring to more recent cases.
`Clear pattern of preference for religious groups'
Cornell Law School professor Nelson Tebbe said more of the claims about religious freedom started to come from mainstream majority Christian groups as political polarization increased and as the gay rights movement picked up speed.
“Suddenly, civil libertarian groups who had been on the side of minority religions … started to realize that civil rights laws could be vulnerable to religious attacks by conservative Christians, and they started to get worried,” Tebbe said.
As the court has shifted its approach, he said, the justices have both granted exemptions from regulations that burden religion as well as said government must treat religious groups no differently from secular organizations when providing public benefits − such as school vouchers.
“While both of those could be seen as understandable on their own terms, when you put them together, there’s a clear pattern of preference for religious groups,” he said. “It’s a pretty dramatic moment in constitutional law in this area.”
Garnett, the religious freedom expert at the University of Notre Dame Law School, said the court’s decisions are a reflection of the ongoing debate over how much accommodation should be given in a country with diverse religious views.
“So the fact that those cases are coming up isn’t because the court sort of shifted to protecting majority groups,” he said. “It’s because events on the ground shifted. And the nature of the controversies that are served up are different.”