Conversion of the Court: Ideological Reversal on Religious Liberty Cases

Abstract

Over time, the United States Supreme Court has vacillated between an accommodationist and separationist approach to religious liberty cases. Under the Burger Court, liberal justices largely supported religious exemptions and strict scrutiny analysis of government actions limiting religious exercise. The ideological division was further heightened by the 1990 Employment Division v. Smith case, in which the conservative wing of the Court rejected a religious exemption to neutral laws of general applicability. Since then, however, the ideological lines have flipped, such that conservative movements and justices generally favor religious exemptions in cases involving contraception healthcare coverage, school choice, and public accommodation for LGBTQIA+ individuals, while liberal justices are more likely to uphold government actions. The literature has yet to explain this ideological reversal, which occurred over just a few decades. We introduce a new quantitative dataset of justices’ Free Exercise decisions and then use a qualitative historical approach to examine this reversal. We find that the two ideological camps shifted asymmetrically: conservatives in the mid-1990s and liberals thereafter. Our analysis suggests that this is due primarily to the effect of intensive lobbying by new legal organizations, shifting partisan coalitions, and the policy response of the elected branches of government.