Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases

49 Pages Posted: 10 Nov 2017 Last revised: 4 Mar 2018

Luke W. Goodrich

The Becket Fund for Religious Liberty; University of Utah - S.J. Quinney College of Law

Rachel N. Busick

Americans United for Life

Date Written: February 18, 2018

Abstract

This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.

Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. And while there was an uptick of litigation over the Affordable Care Act’s contraception mandate — culminating in Hobby Lobby and Little Sisters of the Poor — those cases have subsided, and no similar cases have materialized. Courts continue to weed out weak or insincere religious freedom claims; if anything, religious freedom protections are underenforced.

Our study also highlights three important doctrinal developments in religious freedom jurisprudence. The first is a new circuit split over the Religious Freedom Restoration Act. The second is confusion over the relationship between the Free Exercise and Establishment Clauses that is currently plaguing litigation over President Trump’s travel ban. The third is a new path forward for the Supreme Court’s muddled Establishment Clause jurisprudence.

Keywords: Religious Freedom, First Amendment, RFRA, Hobby Lobby, Little Sisters of the Poor, RLUIPA, Free Exercise Clause, Establishment Clause, Contraception Mandate

Suggested Citation

Goodrich, Luke W. and Busick, Rachel N., Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases (February 18, 2018). 48 Seton Hall Law Review 353 (2018); University of Utah College of Law Research Paper No. 239. Available at SSRN: https://ssrn.com/abstract=3067053

Luke W. Goodrich (Contact Author)

The Becket Fund for Religious Liberty ( email )

1200 New Hampshire Ave. NW
Suite 700
Washington, DC 20036
United States

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Rachel Busick

Americans United for Life ( email )

Washington, DC
United States

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