The Roberts Court is frequently perceived as a defender of the First Amendment, particularly concerning free speech. However, its jurisprudence reveals a more nuanced landscape, particularly with the intersection of free speech and religion. Over recent years, the Court has not only redefined aspects of free speech law, covering areas like campaign finance and online platforms, but has also extensively shaped religious doctrine by expanding the free exercise and establishment clauses.
This dynamic is especially evident in religious cases, where the Court has consistently favored religious claimants. The pattern predates Justice Amy Coney Barrett’s tenure, although it has intensified since her appointment. This inclination is particularly pronounced when cases straddle the line between speech and religion, leaving claimants in such matters with favorable outcomes.
To understand the Roberts Court’s First Amendment stance, cases can be divided into three categories: religious cases, “pure” speech cases, and religion-adjacent speech cases. The Court’s decisions in formal religious cases consistently favor religious claimants. For example, from 2005 to 2019, religious claimants secured victories in 83% of the cases. With Barrett on the bench, this trend has significantly strengthened.
On the other hand, pure speech cases yield less uniform outcomes. Despite some significant pro-speech rulings, like in Citizens United v. FEC, the win rate for speech-primary claimants remains less predictable. The Court tends towards skepticism regarding viewpoint discrimination, campaign finance, and retaliation based on speech. However, it tends to be more deferential in contexts like government as an employer, education, and national security.
The Court’s religious jurisprudence, notably through cases like Gonzales v. O Centro and Burwell v. Hobby Lobby, underscores religious accommodation. This trend continues under Barrett, as seen in Ramirez v. Collier and Kennedy v. Bremerton School District.
The upcoming consideration of St. Mary Catholic Parish v. Roy can further highlight the Court’s direction concerning religious claimants. As it navigates the boundary of the free exercise clause as set by Employment Division v. Smith, the decision could continue reshaping the Court’s stance on religion within the First Amendment framework.
This ongoing jurisprudential journey suggests that while the Roberts Court actively shapes the First Amendment landscape, it does so with particular emphasis on religious accommodation, carving out a distinct path compared to general speech rights.
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