Which U.S. Supreme Court Justice Has the Most “Pro-Religion” Record?

April 23, 2021
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by Jorge Gomez • 5 min read

After facing unprecedented attacks on their religious liberty and a year-long battle to reclaim their constitutional rights, houses of worship across America are finally reopening and getting back to normal—that is, the real normal of freely living out their faith and not the “new normal” where they were told by government officials to shut their doors.

The recent celebration of Easter and Passover in early April gave us a very positive indication that religious freedom is thriving in our country, as millions of Americans were able to get back to one of the most essential ways of living out their faith: attending a religious service in-person.

But if reclaiming the freedom to go back to church wasn’t enough good news…consider the recent study published by scholars at the Washington University in St. Louis and the University of Chicago, which found that religious liberty is on an extraordinary winning streak at the nation’s highest court.

In this feature, we’ll break down some of the study’s key findings and what they could mean for future religious liberty cases that are presented before the U.S. Supreme Court.

Top 10: Which Supreme Court Justices Voted Most Frequently in Favor of Religion?

Some may be curious as to which Supreme Court justices are the most pro-religion. Here’s a ranking of the top ten (10) justices from 1953 to 2019 who most frequently (measured by percentage) voted in favor of religion. Listed next to the percentage is the raw number of pro-religion votes cast by each justice.

(Note that Justice Coney Barret is excluded, likely due to how recently she was confirmed to the Court).

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Highest Winning Percentage for Religious Organizations in 70 Years

The study found that the Supreme Court ruled in favor of religious organizations more frequently in recent years than at any point since 1953.

In particular, since John Roberts became Chief Justice in 2005, the percentage of the Court’s pro-religion decisions has seen a sharp increase compared to the tenure of the last four Chief Justices (Rehnquist, Burger and Warren).

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Recent Conservative-Appointed Justices: ~ 28% More Likely to Rule in Favor of Religion

Another revealing point of data shows that Republican-appointed Supreme Court justices are, on average, more likely to issue a pro-religion ruling or opinion than their Democratic-appointed peers.

For many who closely follow the Court and its decisions, this might appear obvious and not at all groundbreaking. However, a deeper dive into the data demonstrates the impact of conservative justices on religious liberty over the past decade and a half.

Republican-appointed justices from 1953 to 2005 (during the Warren, Burger, and Rehnquist courts) ruled in favor of religion approximately 56% of the time. Compare that to Republican-appointed justices during Chief Justice Roberts’ tenure (2005 – present), who ruled in favor of religion 84% of the time.

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Vast Majority of Supreme Court Rulings are Favorable to Religious Freedom

Over the span of the last seventy (70) years, the study documents the Supreme Court producing a total of ninety-three (93) decisions relating to religious freedom (Free Exercise or Establishment Clause cases).

And in that same time period, the court ruled in favor of religion fifty-eight percent (58%) of the time. That’s nearly three (3) in every five (5) cases involving religion that had a pro-religious freedom outcome!

The research also notes that pro-religious freedom win rates are equally strong for Free Exercise clause cases (59%) and Establishment clause cases (57%).

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Hope for Future Victories

When discussing the constitutional battle for religious freedom in America, perhaps the biggest takeaway from the study is that the five most pro-religion justices all sit on the Supreme Court right now. This is the first conservative majority on the Court since the 1930s, a composition that could be critical as First Liberty continues fighting several legal battles:

  • In our Maine School Choice case, First Liberty and the Institute for Justice asked the Court to reverse an appellate court ruling and affirm that no state should discriminate against families that choose to send their children to a religious school.
  • In our North American Mission Board case, we’ve petitioned the Court to protect the constitutional right of religious institutions— not judges or government officials—to choose how and who will fulfill their religious missions.

There’s also a possibility that Coach Joe Kennedy’s case could soon be headed to the Supreme Court. His case would present an opportunity for the justices to review Employment Division v. Smith, a thirty-year old precedent that lowered the bar of judicial scrutiny on government action impacting religious freedom to the point that the Free Exercise clause has been practically dormant for decades.

Statistics and data can’t offer us a complete guarantee of more victories. But the incredible winning streak for religious freedom that’s taken place at the Supreme Court in recent years should give people of all faiths great hope—a sense of optimism that we can still look to the nation’s highest court as a protector of our First Freedom and God-given rights.

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