Goodrich & Busick, “Sex, Drugs, and Eagle Feathers”

Here is an interesting-looking article by Luke Goodrich and Rachel Busick, both of the Becket Fund, on religious freedom cases since the Hobby Lobby case, Sex, Drugs, and Eagle Feathers: An Empirical Study of Religious Freedom Cases, forthcoming in the Seton Hall Law Review. Goodrich and Busick argue that, notwithstanding predictions that the Hobby Lobby case would open the proverbial floodgates, religious liberty cases actually remain rare. Here’s the 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.

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