Friday, November 17, 2017
New Empirical Study on Religious Freedom Cases Post-Hobby Lobby (by Luke Goodrich and Rachel Busick)
Two attorneys at the Becket Fund for Religious Liberty — Luke Goodrich and Rachel Busick — have just posted one of the first empirical studies of federal religious freedom cases since Hobby Lobby.
Some critics of Hobby Lobby predicted that the decision 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 majoritarian values. But this study finds those dire predictions to be unsupported. Instead, it finds that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. The study also highlights several interesting doctrinal developments in recent litigation over RFRA, Trump’s travel ban, and the Establishment Clause.
The most intriguing empirical research tells us something new, such as that the conventional wisdom is mistaken or overstated. That is true here, as Goodrich and Busick reach this conclusion:
[Hobby Lobby] has not prompted a flood of new litigation by Christians or for-profit corporations. If anything, its main effect has been to provide more protection for religious minorities like the Native Americans who won the right to use eagle feathers in McAllen, or the Muslim prisoner who won the right to grow a beard in Holt. These religious minorities were the main religious liberty claimants before Hobby Lobby, and they remain the main religious liberty claimants afterwards. Ironically, then, the main beneficiaries of the win for Christian claimants in Hobby Lobby may be non-Christian religious minorities.
You can find the full article here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3067053. I highly recommend it! I’m see that it has already drawn more than 150 downloads. Add to the statistics by downloading it yourself today.