{"id":79,"date":"2026-05-27T13:41:19","date_gmt":"2026-05-27T13:41:19","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=79"},"modified":"2026-05-27T13:41:19","modified_gmt":"2026-05-27T13:41:19","slug":"the-roberts-courts-record-on-the-first-amendment","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=79","title":{"rendered":"The Roberts court\u2019s record on the First Amendment"},"content":{"rendered":"
\n

The Roberts court is\u00a0often treated\u00a0as especially protective of the\u00a0First Amendment. It is true that the court has reshaped\u00a0free speech law\u00a0across such areas as campaign finance, student speech, government speech, and online platforms. It has also transformed religious doctrine through expanding the free exercise clause and the establishment clause, and in several religious-accommodation cases.<\/p>\n

Read more More redistricting drama<\/a><\/p>\n

But these two First Amendment stories are not the same. The court\u2019s speech cases are often favorable towards speakers, but speech claimants do not win uniformly. Religion is more consistent. Across the Roberts court, religious claimants have done unusually well. That pattern predates Justice Amy Coney Barrett, but it has become sharper since she joined the court. And when cases sit at the boundary between speech and religion, the claimant often fares especially well.<\/p>\n

The takeaway is that the Roberts court, particularly post-Barrett, is not simply pro\u2013First Amendment. It is more precise to say that the court is often pro-speech, strongly pro-religion, and most consistent when speech overlaps with religious identity or conscience. That distinction is fundamental for understanding the court\u2019s current direction, including its decision to hear the case of St. Mary Catholic Parish v. Roy<\/em>, which challenges long-standing religious precedent.\u00a0<\/p>\n

The basic pattern<\/strong><\/p>\n

In seeking to understand the Roberts court\u2019s First Amendment jurisprudence, I separated cases into three categories.<\/p>\n

First are formal religious cases, which include free exercise, establishment clause, Religious Freedom Restoration Act, Religious Land Use and Institutionalized Persons Act, ministerial-exception (a doctrine which bars ministers from suing churches and other religious institutions for employment discrimination), religious-accommodation, and religious public-benefit cases.<\/p>\n

Second are \u201cpure\u201d speech cases, which include campaign finance, retaliation, government speech, student speech, commercial speech, public-employee speech, donor disclosure, trademark, compelled-speech, and online platform cases.<\/p>\n

Finally are what I call religion-adjacent speech cases, or speech cases that involve religious speakers, religious institutions, conscience-based claims, or religiously inflected expression; that is, speech claims connected to religious identities or religious institutions.<\/p>\n

Religious claimants triumphant<\/strong><\/p>\n

The win-rate contrast is the article\u2019s cleanest empirical point. Before Barrett joined the court, from 2005-2019, religious claimants or parties won 10 of 12, or 83%, of formal religious cases \u2013 a very high, although not perfect, percentage of cases. (If one does not count Zubik v. Burwell<\/em> as a religious case, in which certain religious institutions challenged the Affordable Care Act\u2019s birth control provisions, this number rises to 10 of 11, or 91%.) In the Barrett era, formal religious claimants are six for six.<\/p>\n

The broader religion-related category is even stronger. When religion-adjacent speech cases are included, pre-Barrett claimants won 12 of 15, or 80%, of such cases. In the Barrett era, they have won 10 of 10 of these.<\/p>\n

By contrast, speech-primary claimants won 25 of 46, or 54%, pre-Barrett cases and 10 of 19, or 53%, Barrett-era cases. Pure speech cases, excluding religion-adjacent disputes, are even more mixed: 23 of 43, or 53%, pre-Barrett claimant wins, and 6 of 15, or 40%, Barrett-era claimant wins.<\/p>\n

These numbers show a court whose speech jurisprudence is thus a good deal more conditional than its religion jurisprudence.<\/p>\n

Religion as the more consistent track<\/strong><\/p>\n

As noted above, the majority\u2019s siding with religion-related claimants began before Barrett joined the court. In the 2006 case of\u00a0Gonzales v. O Centro<\/em>, the court protected sacramental religious practices, including the use of hallucinogens, under RFRA. In 2012\u2019s\u00a0Hosanna-Tabor v. EEOC<\/em>, it recognized the ministerial exception, protecting religious employers from employment discrimination suits. In the 2014 case of\u00a0Burwell v. Hobby Lobby<\/em>, it applied RFRA to closely held corporations objecting to the Affordable Care Act\u2019s contraceptive mandate. In 2015\u2019s\u00a0Holt v. Hobbs<\/em>, it protected prisoner religious exercise under RLUIPA. In the 2017 case of\u00a0Trinity Lutheran v. Comer<\/em>, the court held that a church could not be excluded from a public-benefit program because of its religious status. Espinoza<\/em>\u00a0v. Montana Department of Revenue<\/em> then extended that logic to religious schools, and\u00a0Our Lady of Guadalupe v. Morrisey-Berru<\/em> strengthened religious institutional autonomy.<\/p>\n

The Barrett-era cases make the pattern more categorical.\u00a02020\u2019s Tanzin v. Tanvir<\/em>\u00a0allowed damages under RFRA against federal officials for violating persons\u2019 free exercise rights. Ramirez v. Collier<\/em>, decided in 2021,\u00a0protected religious touch and prayer in the execution chamber.\u00a02022\u2019s\u00a0Carson v. Makin<\/em>\u00a0protected religious schools from exclusion when it came to state tuition assistance.\u00a0That same term, Kennedy v. Bremerton\u00a0School District<\/em> protected a coach\u2019s ability to pray at a public school event.\u00a0Catholic Charities Bureau<\/em>\u00a0v. Wisconsin Labor and Industry Review Commission<\/em>, decided last term, rejected a state\u2019s narrow definition of when an entity operates for \u201creligious purposes.\u201d\u00a0And Mahmoud v. Taylor<\/em>, also decided last term,\u00a0sided with religious parents challenging a school policy that denied opt-outs for readings of \u201cLGBT+-inclusive storybooks.\u201d<\/p>\n

This shift may be described as a move from \u201caccommodation\u201d to \u201cpriority.\u201d Accommodation implies limited carve-outs from general rules; that is, drawing narrow lines to protect religious institutions but not reconsidering the rules themselves. Priority better captures the current pattern: when religious identity, religious institutional autonomy, or religious participation in public programs is at stake, the court increasingly supports the legal framework of the religious claimant\u2019s position, questioning the rules themselves rather than simply how they have been applied.<\/p>\n

Read more Court sides with Trump administration in dispute over immigration judges, declines to hear Florida suit against other states over immigrant driver\u2019s licenses<\/a><\/p>\n

One important feature of these cases is that the Roberts court\u2019s First Amendment shift has not always (or even often) occurred through formally overruling precedent. In the case coding (by the\u00a0Supreme Court Database) relatively few decisions are marked as openly altering existing case law. The court has more often changed First Amendment law by invalidating statutes, narrowing old tests, or reclassifying the dispute. The result is a court that transforms the field by deciding anew what counts as religious accommodation or exercise that is to be protected from state interference.<\/p>\n

Speech is protective but context-dependent<\/strong><\/p>\n

Speech is the larger set of cases, but it has been less uniformly protected. The Roberts court has issued major pro-speech rulings in campaign finance and political spending cases, such as (most famously) Citizens United v. FEC<\/em> and McCutheon v. FEC<\/em>. It has also protected donor privacy in\u00a0Americans for Prosperity Foundation v. Bonta<\/em>; offensive or controversial expression in\u00a0Snyder v. United States<\/em>,\u00a0Matal v. Tam<\/em>, and\u00a0Ianca v. Brunetti<\/em>; claimants that claimed they were retaliated against for their speech in\u00a0Heffernan v. City of Paterson<\/em>,\u00a0Lozman v. City of Riviera Beach<\/em>,\u00a0NRA v. Vullo<\/em>, and\u00a0Gonzalez v. Trevino<\/em>; and student off-campus speech in\u00a0Mahanoy Area School District v. B.L.<\/em> <\/p>\n

But the court has also rejected many speech claims in a range of areas.\u00a0Garcetti v. Ceballos<\/em> limited public-employee speech.\u00a0Morse v. Frederick<\/em> upheld discipline for student speech.\u00a0Beard v. Banks<\/em> upheld prison restrictions.\u00a0Pleasant Grove v. Summum<\/em> and\u00a0Walker v. Texas Division<\/em> treated contested expression as government speech, allowing this to be regulated.\u00a0Williams-Yulee v. The Florida Bar<\/em> upheld a judicial-campaign solicitation rule.\u00a0Houston Community College v. Wilson<\/em> rejected a First Amendment claim based on official censure.\u00a0City of Austin v. Reagan National Advertising<\/em> upheld a sign regulation.\u00a0United States v. Hansen<\/em> kept an immigration-related statute in place criminalizing “encourag[ing] or induc[ing]” illegal immigration (after narrowing it).\u00a0Vidal v. Elster<\/em> upheld a trademark-registration limit.\u00a0Free Speech Coalition v. Paxton<\/em> upheld Texas\u2019 adult-content age-verification law. And\u00a0TikTok v. Garland<\/em> upheld the federal TikTok divestiture statute against a First Amendment challenge.<\/p>\n

These decisions make sense given the court\u2019s current trajectory. The majority of justices are especially skeptical of viewpoint discrimination (that is, bans on a particular opinion or perspective), campaign-finance restrictions, compelled speech, donor-disclosure burdens, and retaliation based on one\u2019s speech. But it is more deferential when the government is an employer, educator, prison administrator, program manager, regulator, or acting on the basis of national security.<\/p>\n

That is the key contrast with religion. Speech claimants win often, but their success depends heavily on context. Religious claimants, by contrast, have prevailed across a much wider range of institutional settings.<\/p>\n

Barrett, religion-adjacent speech, and the new priority<\/strong><\/p>\n

Of course, Barrett did not create the Roberts court\u2019s religion trajectory. As described, the pre-Barrett court had already decided many major cases for religious claimants. But Barrett\u2019s arrival gave the court a stable six-justice conservative majority, making religion-protective outcomes even more secure in contested cases. Indeed, per term, formal religion cases rose from about 0.80 before Barrett to about 1.00 after Barrett. Religion-adjacent speech cases rose from about 0.20 per term to about 0.67 after Barrett. And the combined religion and religion-adjacent category rose from about 1.00 case per term to about 1.67 after Barrett.<\/p>\n

The new majority obviously matters in cases like\u00a0Carson<\/em>,\u00a0Kennedy<\/em>, and Mahmoud<\/em>, where the court divided 6-3. But the story extends beyond bloc-based voting. Some religion or religion-adjacent wins have been unanimous or near-unanimous. The result is a court whose religion-protective direction is sometimes ideologically divided and sometimes broadly shared.<\/p>\n

St. Mary<\/em>\u00a0and the future of\u00a0Smith<\/em><\/strong><\/p>\n

That brings the story to\u00a0St. Mary Catholic Parish v. Roy<\/em>. That case concerns Catholic preschools excluded from Colorado\u2019s universal preschool program because they follow Catholic teachings in admissions and related policies. The grant is important because it gives the court another opportunity to address the reach of 1990\u2019s\u00a0Employment Division v. Smith<\/em>, a much-debated decision that held the First Amendment\u2019s free exercise clause is not generally violated when a challenged law is not generally applicable; that is, it does not target a specific faith group or religious practice.<\/p>\n

The court\u00a0did not grant review on the broadest question: whether\u00a0Smith<\/em>\u00a0should be overruled. That might seem like restraint. But, as explained, in the Roberts court\u2019s religion jurisprudence, formal restraint often coexists with practical transformation.<\/p>\n

That is why\u00a0St. Mary<\/em>\u00a0matters even if\u00a0Smith<\/em>\u00a0survives. For example, the court could rule that Colorado\u2019s program is not generally applicable because it contains exemptions or discretionary features. It could treat the exclusion as discrimination against religious participation involving a public benefit. Or it could blend those approaches. But any of those paths would leave\u00a0Smith<\/em>\u00a0formally standing while making it less important in practice.<\/p>\n

And that outcome would fit the Roberts court\u2019s broader First Amendment jurisprudence. Its protection of speech remains significant, but uneven. Religion has become more consistent, more prioritized, and increasingly central to the court\u2019s constitutional identity. Since Barrett joined the court, formal religion claimants and religion-adjacent speakers have prevailed with remarkable regularity. The court may not describe this as a religious-liberty revolution. But the data points only in that direction.<\/p>\n

The future of the First Amendment is therefore likely to remain bifurcated. Speech claimants will continue to win in important areas, especially where the court sees censorship, retaliation, compelled speech, or viewpoint discrimination. Yet religious claimants will remain among the most favored litigants before the court, particularly when public benefits, religious schools, parental rights, religious conscience, and institutional autonomy are involved. St. Mary<\/em>\u00a0may not kill\u00a0Smith<\/em>. But it will likely further demonstrate why the court no longer needs to.<\/p>\n

Read more How Callais broke the Voting Rights Act and weaponized the equal protection clause: part 1<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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