After a few decades of relative quiet, the Supreme Court has in recent years focused once again on the religion clauses and related statutes. Beginning with its unanimous opinion recognizing the ministerial exception in Hosanna-Tabor v. EEOC (2012), the Court has issued a series of high-profile decisions: Town of Greece v. Galloway (2014), Burwell v. Hobby Lobby (2014), Holt v. Hobbs (2015), Trinity Lutheran v. Comer (2017), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Trump v. Hawaii (2018), and just last term, American Legion v. American Humanist Association (2019). This term (after the articles for this symposium had been written), the Court decided three cases involving religion: one striking down a no-aid provision relating to the use of tax credits for religious schools, one clarifying the scope of the ministerial exception, and one holding that the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.
A number of recent cases formally resolved under free speech doctrine also touch on important dimensions of religious freedom and religious expression: Pleasant Grove City v. Summum (2009), Christian Legal Society v. Martinez (2010), McCullen v. Coakley (2014), and Reed v. Town of Gilbert (2015). And, in its next term, the Court will hear a case at the intersection of religious freedom and gay rights that could reshape its approach to free exercise claims over the past thirty years.
Changes in our understanding of law and religion also extend beyond legal doctrine. The past few years have seen significant demographic and political shifts. For the first time in American history, nonbelievers and religiously unaffiliated citizens comprise a significant demographic of the country’s population, which has emerged alongside a declining Protestant influence on white middle-class culture. The role of American Muslims has taken on increased visibility. Voters are sorting themselves relationally, informationally, and even geographically. And growing divides over the election of Donald Trump to the White House have heightened tensions within and between various religious demographics. These and other changes reveal less consensus and greater tension within the American experiment of pluralism.
The doctrinal and cultural changes of the past few years suggest the time is right to assess the landscape of free exercise and establishment law: where it is and where it might be headed. To that end, Washington University in St. Louis assembled some of the nation’s leading law and religion scholars to reflect on these and other developments.