In an in-depth analysis published on May 27, 2026, Adam Feldman of SCOTUSblog examines the Roberts Court’s First Amendment jurisprudence, revealing a marked distinction between its treatment of free speech and religious claims. While speech protections remain context-dependent and uneven, religious claimants have achieved remarkably consistent victories. This pattern, which predates Justice Amy Coney Barrett but has intensified since her arrival, reflects a shift toward prioritizing religious liberty, institutional autonomy, and participation in public programs.
Feldman categorizes cases into formal religious disputes (involving the Free Exercise Clause, Establishment Clause, the Religious Freedom Restoration Act of 1993 (RFRA), Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), ministerial exceptions, and religious accommodations) and religious-adjacent speech cases tied to religious speakers or conscience. Pre-Barrett (2005-2019), religious claimants won about 83% of formal cases and 80% when including adjacent speech. In the Barrett era, these figures rise to perfect or near-perfect records: 6-for-6 in formal religious cases and 10-for-10 in the broader category. By contrast, pure speech claimants hover around 50% success, highlighting religion’s privileged status.
Key decisions illustrate this trajectory. Early wins likeHosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) and Burwell v. Hobby Lobby (2014) expanded institutional autonomy and RFRA protections. Post-Barrett rulings such as Kennedy v. Bremerton School District (2022), protecting a coach’s public prayer, Carson v. Makin (2022), ensuring religious schools’ access to tuition aid, and Mahmoud v. Taylor, siding with parents seeking opt-outs from certain curricula, demonstrate a move from mere “accommodation” to “priority”. The Court increasingly questions underlying rules rather than granting narrow carve-outs, transforming how religious exercise intersects with government programs and public life.
This emphasis on religion extends to broader doctrinal shifts, including narrowed Establishment Clause barriers and strengthened free exercise claims across settings like prisons, schools, and benefits programs. Feldman notes that while the Court rarely overrules precedent outright, it achieves transformation by reclassifying disputes and invalidating statutes or policies that burden religion. Upcoming cases likeSt. Mary Catholic Parish v. Roy could further erode limitations from Employment Division v. Smith, prioritizing religious participation even without formally overturning prior frameworks.
In the final paragraph, Feldman wrote:
“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 may not kill Smith. But it will likely further demonstrate why the Court no longer needs to.”
Summary based on Adam Feldman, “The Roberts court’s record on the First Amendment,” SCOTUSblog (May 27, 2026), https://www.scotusblog.com/2026/05/the-roberts-courts-record-on-the-first-amendment/.
