Religious Freedom Is for Christians, Too
Can the government in America force a Christian baker to design a cake celebrating a same-sex wedding? That’s the question before the U.S. Supreme Court Tuesday. The dispute in Masterpiece Cakeshop v. Colorado Civil Rights Commission comes on the heels of two other high-profile religious-freedom cases involving Christians— Burwell v. Hobby Lobby (2014), in which the court said a business couldn’t be forced to pay for contraception in violation of its owners’ religious beliefs, and Zubik v. Burwell, which effectively said the same thing about religious nonprofits, including the Roman Catholic order Little Sisters of the Poor.
This cluster of Christian cases has prompted critics on the left to claim we’ve entered a new phase in the pursuit of “religious freedom”—scare quotes required. Gone are the days when religious freedom was primarily a shield for protecting Jews, Hindus, Muslims, Native Americans and other religious minorities. Now, these critics claim, “religious freedom” is a sword for imposing Christian values, particularly on matters of sex.
A new study that Rachel Busick and I conducted demonstrates that the truth is precisely the opposite. We examine a comprehensive database of more than 10,000 federal cases decided in the past five years. We look at how many religious freedom cases are in court, who is bringing them, and how often they win. The results are striking.
First, religious-freedom cases are rare, only 1% of all cases in federal court. Half of those involve inmates challenging prison policies or asylum seekers claiming religious persecution at home. Religious-freedom cases involving nonincarcerated citizens are less than 0.5% of federal cases.
Successful religious freedom claims are even rarer. Many claims are dismissed on procedural grounds before a ruling on the merits of the claim. Of those that remain, the majority still lose.
The 10th U.S. Circuit Court of Appeals decided both the Hobby Lobby and Little Sisters of the Poor cases before the justices took them up. The 10th Circuit decided more than 10,000 cases in the past five years. Aside from those regarding the contraception-mandate, there were only four victorious claims of religious freedom.
None of them involved Christian issues. The four victories were for Muslims challenging an anti-Shariah law, Native Americans challenging a ban on killing eagles, reality TV stars challenging a ban on polygamy and atheists challenging a Ten Commandments monument.
Most strikingly, a disproportionate share of religious freedom cases are brought by non-Christian minorities. The proportion of religious-freedom cases brought by Hindus was five times their share of the population in the six states under 10th Circuit jurisdiction. The factor was 10 for Native Americans and 17 for Muslims. The most underrepresented group? Christians, who were involved in only one-fourth as many cases as their share of the population.
That means that religious freedom protections remain especially important for non-Christian minorities. But it also raises a question: Why is there so much hand-wringing about a handful of religious-liberty cases brought by Christians?
This is because the political left applies a double standard. If religious liberty is invoked by a favored minority, it is legitimate. But if it is invoked by a Christian with traditional moral views, it is seen as an excuse for hate. Progressives engage in culture-war bullying when religious liberty would stand in the way of their social views. One of the Colorado state commissioners in Masterpiece Cakeshop called the Christian baker’s religious-freedom claim “one of the most despicable pieces of rhetoric that people can use—to use their religion to hurt others.”
But if religious liberty means anything, it means the right to live according to your beliefs when most people think you are wrong.
So when Jack Phillips, the owner of Masterpiece Cakeshop, stands before the Supreme Court Tuesday, he may have some unlikely allies rooting for him: non-Christian religious minorities. Those groups know better than anyone that religious liberty protects the “right to be wrong.” They have been the main beneficiaries of religious liberty victories in the past, and they will be in the future. You might say a victory for Masterpiece Cakeshop would be a victory for everyone.
Mr. Goodrich is deputy general counsel at the Becket Fund and represented Hobby Lobby and the Little Sisters of the Poor. He is a co-author of a new study, “Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases.”