For a generation or more, the lines of debate around religious liberty and religion in the public square were relatively clear. As with other culture war issues, religious conservatives tended to be majoritarians and small-d democrats, supporting the rights of legislatures and town councils and school boards to make decisions about issues ranging from creches on greens to school prayer to the disbursement of education dollars to religious schools without interference from the judicial branch. And there was an assumption among many observers — and not only on the religious right — that on matters related to believers’ involvement in civic life, the courts were a kind of vanguard force for secularism, whose efforts would tend to collide with public sentiment and lead to conflict with the democratic branches of government.
The reality was always a little more complicated than this, but the basic binary of secular jurists versus religion-friendly legislators had a lot of explanatory power. Now, though, it pretty clearly no longer obtains: Today’s decision in Burwell v. Hobby Lobby, in which the Supreme Court ruled 5-4 that the Obama White House’s mandate requiring employers to pay for the morning-after pill, sterilization and contraception unduly burdened the religious liberty of Hobby Lobby’s Christian owners, is the latest evidence that we inhabit a very different political and jurisprudential landscape on these issues than we did from the 1960s (or 1940s, even) through the 1990s.
On other culture-war fronts — same-sex marriage, most notably — the old dynamic still sort of shows up, with judges repeatedly overturning democratically-enacted (though, in many cases, no longer majority-supported) laws that religious conservatives tended to support. But on religious liberty, the old order is increasingly reversed, with conservative believers looking to the courts rather than the vox populi for protection against moves made by the elected branches, and especially the current national executive.
In this shift, we can see the legacy of conservatism’s political success in the 1980s and 1990s, which changed the ideological composition of the judicial branch, intersecting both with recent leftward and secular-ward trends in public opinion and with the even sharper shift among liberal partisans on issues where there used to be a limited consensus. And the overall change has really come into focus in the last few years. Across a range of recent decisions, from the 2012 Hosanna-Tabor case through the recent town prayer and abortion-clinic buffer zone (not technically a religious-liberty case, but in the same ballpark) rulings and now in today’s Hobby Lobby judgment, the high court has consistently delivered religious conservatives something like the verdict they were seeking. In some of those decisions, it has taken what’s most likely a countermajoritarian position (I’m cautious about the polling in today’s case, since the framing of the question matters so much, but at the very least there’s no reason to think that public opinion was squarely on Hobby Lobby’s side); in others, most notably Hosanna-Tabor, it has swatted down arguments from a liberal White House that even the more liberal justices found too restrictive of religious liberty. In almost all of them, whether unanimously or narrowly, it’s endorsed a more expansive view of religious liberty than the view preferred by many on the left.
As always with the contemporary court, the persistence of this pattern depends in part on the choices of Anthony Kennedy. His concurrence in today’s decision held open the possibility that he might rule for the Obama administration in the other contraceptive-mandate debate (over the alleged accommodation the White House is providing to religious non-profits), and in the most recent case where religious liberty collided with gay rights he provided the fifth vote for the liberal side. And then it depends, of course, on presidential politics: Two terms of President Hillary Clinton would no doubt leave the landscape dramatically altered on these issues (as well as many others).
But right now, at least, the old culture-war categories have been shaken up, and the Supreme Court, instead of being religious conservatives’ worst enemy, suddenly looms in at least some cases as their last best hope.