Updated at 12:45 p.m. ET on December 3, 2020
The Supreme Court’s decision last week overturning New York State’s limits on religious gatherings during the COVID-19 outbreak previewed what will likely become one of the coming decade’s defining collisions between law and demography.
The ruling continued the conservative majority’s sustained drive to provide religious organizations more leeway to claim exemptions from civil laws on the grounds of protecting “religious liberty.” These cases have become a top priority for conservative religious groups, usually led by white Christians and sometimes joined by other religiously traditional denominations. In this case, Orthodox Jewish synagogues allied with the Roman Catholic Diocese of Brooklyn to oppose New York’s restrictions on religious services.
But this legal offensive to elevate “religious liberty” over other civic goals is coming even as the share of Americans who ascribe to no religious faith is steadily rising, and as white Christians have fallen to a minority share of the population.
That contrast increases the likelihood of a GOP-appointed Court majority sympathetic to the most conservative religious denominations colliding with the priorities of a society growing both more secular and more religiously diverse, especially among younger generations.
While most conservative analysts have cheered the Court’s moves in this area, centrist and liberal critics see the ingredients for a political explosion as the Court backs religious-liberty exemptions to laws on employee rights, health care, education, and equal treatment for the LGBTQ community.
“What we are seeing today is this effort to turn religious freedom into religious privilege,” Rachel Laser, the president and CEO of Americans United for Separation of Church and State, told me. Religious institutions and individuals are being given “the right to wield religious freedom as a sword to harm others, and frankly to dial back social progress in light of our changing demographics and progress toward greater equality.”
Indeed, the succession of recent religious-liberty rulings by the conservative Court majority may represent another manifestation of the fear of cultural and religious displacement that helped Donald Trump amass huge margins among white Christian voters in both of his campaigns. “We are dealing with a majority-conservative Court that suffers from the same Christian-fragility disease as we are seeing in Trump’s base—as though Christianity is what’s under attack when others are asking for equal treatment,” Laser said.
In all these ways, “religious liberty” seems certain to become an even more crucial battlefield as the political cold war grinds on between a Republican coalition that mostly reflects what America has been and a Democratic coalition centered on what it is becoming.
The Supreme Court’s recent religious-liberty rulings include a 2014 decision allowing the Hobby Lobby company to claim an exemption from the Affordable Care Act’s mandate to provide birth control to employees and a 2018 decision in which the Court sided with a Colorado baker who refused to provide a wedding cake for a same-sex couple. In oral arguments on a case heard early last month, the Court’s conservative majority signaled that it is highly likely to rule that the city of Philadelphia cannot deny contracts to a Catholic social-service agency that refuses to certify same-sex or unmarried couples as prospective foster parents.
Ira Lupu, a George Washington University Law School professor who studies religion and the law, notes that the Supreme Court has great leeway in choosing which cases to accept—and that this Court majority has chosen to accept very specific ones. “They have taken in the last five, six, seven years many, many religious-liberty cases,” he told me. “I’ve been teaching about this stuff and writing it about for the past 35 years. I have never seen such a spurt of religious-liberty cases in such a short time, especially where over and over again there is a victory for religious-liberty claims.”
The pace of these cases has increased precisely as social and demographic changes have reduced white Christians to a minority and created the most pluralistic religious landscape in American history.
White Americans who identified as Christians made up a majority of the nation’s population for most of its history—about two-thirds of the adult population as recently as the late 1990s. But sometime between 2010 and 2012, white Christians, for the first time, fell below majority status, according to the National Opinion Research Center’s annual General Social Survey. Their ranks have continued to shrink since: The latest data from the Pew Research Center puts white Christians at just above 40 percent of the population, with nonwhite Christians accounting for another 25 percent, people who practice a non-Christian faith representing a little less than 10 percent, and Americans who don’t identify with any religious tradition rising to 25 percent (up from 17 percent only a decade ago).
Given younger generations’ religious preferences, the unmistakable trend line is that Christians—particularly white Christians—will continue to shrink as a share of society, while the share of Americans who don’t ascribe to any religious faith will grow. According to the nonpartisan Public Religion Research Institute’s latest findings, among adults younger than 30, fully 36 percent don’t ascribe to any religious faith, and another 6 percent belong to a non-Christian religion; white Christians account for less than three in 10 of this group, only slightly more than the share of nonwhite Christians (just over one in four).
As white Christians have receded in the population, political and religious conservatives are consolidating behind the claim that believers face widespread discrimination. In the latest PRRI American Values Survey, more Republicans said that Christians face “a lot of” discrimination (62 percent) than believed the same about black people (52 percent) or any other group. White evangelical Christians, the religious foundation of the GOP’s electoral coalition, were even more likely to say that Christians face significant discrimination (66 percent). As with Republicans, more white evangelicals identified Christians as facing bias than said the same about any other group.
Robert P. Jones, PRRI’s founder and CEO and the author of several books on the changing status of white Christians in America, sees a firm link between the ongoing demographic decline and the rising sense among white Christians that they face inequities. “When you can’t even say demographically we’re a majority-white, Christian country—much less culturally or politically—that’s a really different milestone,” he told me. “I do think the sense that something is sunsetting, something is ending … has set off the kind of feeling of vulnerability, feeling of persecution, feeling of grief, all these things. Trump didn’t create them, but he has stoked those worries and concerns.”
Most troubling for progressive legal activists is evidence that those sentiments are seeping from the political arena into the arguments of the Supreme Court’s conservative majority.
In his concurring opinion in the New York case, Neil Gorsuch, Trump’s first Court appointee, denounced the state’s limits in unusually confrontational and barbed language.* Ignoring public-health arguments that indoor religious gatherings pose unique COVID-19 risks—because they involve large numbers of congregants in close proximity singing or speaking—Gorsuch portrayed New York’s rules as reflecting a singular disdain for religious devotion.
“At least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”
Gorsuch’s language in the New York case echoed an unusually antagonistic recent speech from Justice Samuel Alito to the conservative Federalist Society. In that address, Alito also portrayed religious believers as under siege from an increasingly secular society. “Religious liberty,” Alito insisted, “is fast becoming a disfavored right.” Brett Kavanaugh, another Trump appointee, expressed similar deference to religious-liberty arguments at his confirmation hearings. Jenny Pizer, senior counsel for Lambda Legal, which focuses on cases involving gay rights, spoke for many critics when she told me the justices’ rhetoric was tinged with “a white-Christian religious-victim narrative that we’ve been hearing amplified for one decade, two decades now.”
Still, Tim Schultz, the president of the First Amendment Partnership, argues that despite the heated rhetoric, the Court has been relatively cautious in practice. Justices have generally avoided big leaps that would radically expand the ability of religious groups to opt out of secular laws. “I think the Court will likely continue to act in an incremental way rather than in the way that some conservative triumphalists would like them to act,” Schultz told me. “But I do think the direction will be … consistent in rulings for the free exercise of religion.”
The partisan re-sorting of the nation’s religious landscape seems certain to generate more cases that heighten the tension. In PRRI polling, almost exactly two-thirds of Republicans identify as white Christians, a level last reached in American society overall in the late 1990s; Democrats, by contrast, divide about in thirds between white Christians, nonwhite Christians, and nonreligious or non-Christian people. Similarly, the network election exit polls this year found that while white Christians still provided fully two-thirds of Trump’s votes, Joe Biden garnered a bigger bloc of support from nonreligious and non-Christian Americans (about 40 percent of his voters) than from either white or nonwhite Christians.
With this electoral realignment as the backdrop, the Democratic Party has grown more assertive in challenging religious-liberty defenses against other civic rights—even as Republicans have grown more adamant in embracing them.
In 1993, the Democratic-controlled Congress passed—and Democratic President Bill Clinton signed—the Religious Freedom Restoration Act, which provided religious institutions more leeway to resist governmental mandates. (It followed a landmark 1990 Supreme Court decision, Employment Division vs. Smith, written by the conservative icon Antonin Scalia, that restricted religious-liberty defenses.) The Court majority has relied on the RFRA law in some of its recent decisions, and Gorsuch in the New York coronavirus case referred to it “as a kind of super statute, displacing the normal operation of other federal laws.”
But Democrats appear eager to retrench the statute. When House Democrats passed their sweeping 2019 Equality Act, which would ban discrimination because of sexual orientation or gender identity in employment, housing, and other arenas, they specifically barred the use of RFRA as a defense against its requirements. During the campaign, Biden pledged to roll back the use of religious defenses against equal treatment for LGBTQ Americans, and Senator Kamala Harris, now the vice president-elect, has introduced legislation to more comprehensively curb the law’s impact.
Simultaneously, the movement from the Supreme Court’s Republican appointees is in exactly the opposite direction—toward widening religious protections and exemptions in decisions that rely on the RFRA law or the First Amendment’s protection of religion, or both. Some conservatives are hopeful that the Court eventually will undo even the 1990 Scalia decision, and vastly widen the opportunities for groups to claim religious exemptions from civil laws.
Laser says it’s impossible to predict how far the Court may take its religious-liberty drive, given that at least some of the justices appear influenced by the same anxiety about the eroding social position of Christians, especially white Christians, that helped power Trump’s political movement.
“How is the Court going to feel about being so outnumbered by the trend in the country?” Laser asked. “The reaction … could well be to double down.”
* This article previously misstated the type of opinion Justice Neil Gorsuch’s wrote in a recent Supreme Court case. It was a concurring opinion, not a majority opinion.