I much enjoyed Prof. Greg Sisk's law review article on this subject, and I invited him to guest-blog about it this week. Greg teaches law at the University of St. Thomas School of Law in Minneapolis, and has written extensively on the law of government and religion, on the empirical study of federal court decisionmaking, and many other topics. Here's the article abstract, though Greg will be posting a good deal more on the subject in the days to come:
When the call of religious conscience and the demand of public expectations meet at the crossroad of the public square, the enduring myth is that members of minority religious groups face a decidedly uphill battle in securing accommodation for or even tolerance of unconventional religious practices, expression, or values from the courts. By contrast, so the conventional wisdom has it, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. Based upon a recent empirical study of religious liberty decisions in the federal courts, the proposition that minority religions experience a significantly lower success rate was found to be without empirical support, at least in the modern era and in the lower federal courts. Just as importantly, the myth that members of outsider faiths fail at a disproportionate rate proves to be only half of the story. In fact, counter to the popular narrative, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, proved to be the ones who enter the courthouse doors at a distinct disadvantage.
The thesis of this essay is as follows: when compared with other religious claimants, when examined within the particular venue of the federal courts, when evaluated in the context of other potentially influential variables, and when evaluated through data drawn from recent litigation controversies, the hypothesis that minority religious adherents are more likely to lose and that the Christian faithful are more likely to win religious liberty claims is of doubtful continuing validity. Accordingly, as the new century unfolds, the more interesting inquiry may be why those whose religious practices and values fit most comfortably within the mainstream Christian tradition find themselves with a higher hill to climb than people of unconventional beliefs when seeking judicial exemption from secular regulation or judicial recognition of expression and equality rights. Is our nation's concept of religious liberty sufficient robust to encompass those whose claims of conscience may directly challenge the cherished orthodoxies of modern secular liberalism?
I don't know when I have ever gotten the impression that the courts are even slightly hospitable towards traditionalist Christians. In fact, I theorize that the easiest way to 'harmonize' something like the last 20 years of Supreme Court jurisprudence (post-Bowers) has been (at least in issues of morality) consider the traditional Christian point of view on the issue. Holding will be against them. And you know what, as far as it goes, it sure seems to hold up better than any "originalism," "living Constitution," or whatever dreamed up theory of Constitutional law is out there. But hey I'm not bitter ;-).
Off the cuff, and in line with previous commenters, I would strongly suspect that the traditional Christians are the more likely to be seeking to IMPOSE their beliefs rather than merely seeking "liberty" for them. For example, school prayer cases where the "liberty" is for all students to listen to a Christian prayer.
But perhaps Prof. Sisk's article addresses that issue, &I look forward to his postings at the VC.
Many of the cases I have read seem to be more about leveling the playing field than awarding minority religions more "rights" than Christianity.
I could be wrong though, this is just my perception.
This is related to, but slightly different from, Anderson's point-- I suspect, with no empirical justification whatsoever, that traditional religious groups are in the courts in pursuit of some benefit or subsidy from the government, rather than trying to impose their views on others.
I suppose my next step is to actually read the article...
I have fond memories of some truly hysterical prayers given by overly earnest students during junior college football games in East Texas. I remember smiles all around.
I llok forward to the series.
Sort of a "Wait, I'm a Christian, and X doesn't affront my faith. Why should it bother you?" approach. For example, I was Catholic as a child, and had friends of other Christian denominations. For the most part, our beliefs were similar, but some of the differences seemed, well, we'll say 'easy to criticize'. Maybe not understanding the bulk of another's faith makes it easier to allow for differences.
Frankly, I didn't realize that anyone here at the VC was a PETA person who thinks that the rights of a chicken deserve equal consideration with the rights of a renter. It's not a popular view, but I'm glad to see there's someone here willing to defend it-- should make for interesting discussion.
Hmm--the est. clause might be an interesting study in terms of originalism or originalism plus. That is to say, it's an area where (excuse use of so general a term, on a "you know what I mean" basis) liberals fully approve an originalist understanding (or want to push it to its limits) despite the fact that its purposes are really not in play in the modern world. That is -- Americans are so pluralist in a religious sense, with probably a majority being rather indifferent in a practical sense, that there would be absolutely zero chance of any religion taking over even if there were no establishment clause. So the fights tend to be over periphral, and often purely symbolic, issues -- is it OK to have "in God we trust" on the currency, or a reference in the pledge to the flag, or school vouchers that can be (at the recipients' free choice) in a religious school?
If you compare the issues here to those arising under, say, freedom of speech and press (campaign issues, libel suits, etc.) or fourth amendment, well -- they're rather nit-picky things.
Furthermore, Prof. Sisk misquotes these individuals in reference to his thesis, one of them seriously. Sisk's abstract mentions "traditional Christian believers" and "traditionalist Christian faiths (my emphasis). Yet the three quotes in the body of the article only mention "Christians." One author quoted in a footnote, Stephen Feldman, explicitly draws a distinction between "members of small Christian sects [who] sometimes win and sometimes lose such free exercise claims, [while] non-Christian religious outsiders never win." You could evaluate that statement, but not with an empirical study of "traditional Christian faiths."
Again, I take no issue with his findings. In fact, my gut feeling is he is correct that "traditional Chrsitans" face greater obstacles in the courts. That's why take issue with his sweeping assertions.
At least some religious cases might not be relevant to Sisk's analysis. Consider Duncan Frissell's example of refusing to rent to "lewd cohabitants." Christianity is far from the only religion that proscribes "lewd cohabitation." The population of landlords who would prefer not to rent to such a couple on religious grounds is not uniformly Christian. That such a case is brought by a Christian is a consequence of the fact that Christians are a large majority in the US, not of this being a uniquely Christian position.
There are plenty of people here who think that domitae naturae have no rights at all and that prospective renters have no rights vis-a-vis prospective landlords until their mutual undertakings have been reduced to an agreement.
After stating his finding of a lower success rate for Catholics and Baptists (and Muslims, which he dismisses with an "interesting, but I'll move on"), he concludes that secular liberal elites are the reason because Catholics and Baptists are most likely to challenge fundamental or otherwise widely accepted government activities, and lists social security and workers comp as examples.
I don't know much about this area of law, but generally speaking I would think challenges to wide-ranging and widely accepted government programs are less likely to succeed than other challenges. I wouldn't think losing such challenges is evidence of a secular liberal elitism so much as a general judicial unease with making such a ruling.
Wow, that sounds like it wasn't at all the answer he was expecting when he went in, doesn't it?