pageok
pageok
pageok
[Greg Sisk (guest-blogging), March 1, 2006 at 10:15am] Trackbacks
Explaining the Disadvantage in Court for Traditionalist Christians Making Religious Liberty Claims (Part Two):

In yesterday's post, when exploring the reasons why traditionalist Christians are significantly less likely to succeed with religious liberty claims, compared to other religious groupings including members of minority religions, I turned aside the possibility of old-fashioned bigotry and questioned the assertion that supposedly mainstream believers do not need or deserve judicial protection for religious conscience.

In today's post, I suggest that because Catholic and Baptist claimants tend to assert controversial claims of conscience that conflict directly with the social policy-initiatives of liberal secular governments, judges that are disproportionately drawn from the cultural elite may (at the margin) react more skeptically or hostilely to such claims, even aside from the legal merits (and there'll be much more on the merits issue tomorrow).

During the course of American history, both the political left and the right at different times and in different ways have posed threats to our most cherished liberties, whether freedom of speech, procedural protections against government action, or free exercise of religion. In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right. Today, the greater threat may come from the left through imposition of anti-discrimination and social welfare requirements even against private associational groups, such as religious believers and communities.

What Catholics and evangelical Protestants tend to hold in common today is a general adherence to traditional or conservative social values that may conflict with the commands of liberal governments. Thus, when traditionalist Catholics and Baptists resist governmental regulation by seeking exemptions from, for example, anti-discrimination or licensing laws, they run against the grain of mainstream secular society in certain regions of the country.

William Marshall has argued that "[a] court is more likely to find against a claimant ... when the religion is bizarre, relative to the cultural norm." I submit that the opposite may be more common, given the natural human tendency to respond more vigorously to the perceived threat next door than to the peculiarity on the far side of town.

Thus, when we hear stories of strange (to us) religious beliefs and practices, our reaction tends to be one not of antipathy or disagreement, but of detached curiosity. Because such unconventional thinking or conduct is so distant from our own, we are less likely to compare those attitudes and actions against our own beliefs and practices.

By contrast, the typical American may be more threatened by that which is familiar and close at hand, but regarded as morally reprehensible, than by that which is foreign and remote (culturally if not geographically). We may react more defensively to the neighbor who is in almost all aspects similar to ourselves but who departs markedly on some essential point that is crucial to our own sense of values or identity. Consider our response toward someone who looks much like us, grew up in similar ways, lives in the same neighborhoods, attended the same schools, holds the same kinds of jobs, but who then holds what we see as peculiar and abhorrent views on human sexuality or abortion and reproduction or relations between the genders or responsibility for the community and social welfare.

Accordingly, when a judge encounters a religious practice that departs so radically from the conventional as to appear wholly other, the judge may be more willing to tolerate it as harmless for that very reason. However, when the follower of a traditional religious group presses a claim of conscience that folds into one of the conventional, if controversial, perspectives within American public life, a judge may pass the religious claim across the metric of his or her own worldview.

Thus, for example, when an evangelical Christian school challenges the application of employment discrimination laws when discharging an unmarried pregnant school teacher or a Catholic hospital resists accreditation requirements for providing abortion-related training or services, a judge may find it more difficult not to think of how those claims stand against the judge's own religious or political viewpoints. Accordingly, orthodox Christians who seek accommodations that reflect traditional religious values may not be at all well-positioned for litigative success in the modern era—especially before a judiciary that is drawn largely from the cultural elite.

Anonymous Comment:
Thus far, you have failed to address the very real endogeneity and sample selection bias issues so casually dismissed in the article itself. Do you intend to do that at any point or do you instead intend to continue pasting in your pre-written arguments?
3.1.2006 11:24am
Matt K. (mail):
This is an interesting theory, though I am not sure I believe it. Would it be way out of line to say that main stream religion and legal decisions concerning those religious groups affect more people within the society? If that is the case, more people are affected by the decision and greater weight might be given to policy concerns in determining the rationale behind judges' decisions.
3.1.2006 11:38am
Goober (mail):
Hi,

I briefly read your comments so far and while I don't think this has been addressed I very well could be wrong. But how do you control for the underlying number of legitimate religious claims that could be made by members of the religious majority vis a vis the minority? That is, not only (as you note) might judges think that majority Christians are able to protect their religious interests through the political process, but they might in fact be able to protect those interests. I recall briefly that sacramental wine was exempted from Prohibition, but minority religions do not always receive such protection (see the case of the Santerians in Hiyaleah (sp)).
3.1.2006 11:45am
J..:
In the future, it may be best to simply have someone write an informal article and post it here. Afterwards, the author can respond in some way to all the comments in some followup or otherwise.

This way, no one will expect that article to bear any relation to posts on earlier sections. This method we see here seems doesn't really seem to be blogging as much as it is posting parts of an already written article in bite sizes. Fine, I suppose, but not really a conversation, and not what I think posters expected.
3.1.2006 11:46am
byomtov (mail):
These explanations are wholly conjectural. On what evidence do you reject alternative explanations of your results?
3.1.2006 11:48am
Defending the Indefensible:
Greg Sisk,

If you are going to be posting here all week, rather than just submitting prepared essays which you could simply publish together at one time, perhaps you might engage with some of the comments and commenters. As AC above notes, you haven't addressed the endogeneity and sample selection bias issues, but further I think you haven't actually addressed any other arguments either.

This is not in itself intended to insult or diminish your own thinking on these issues, but without engagement we are just talking past one another and you will not persuade anyone who doesn't already agree with you.
3.1.2006 11:49am
Public_Defender:
Again, why do you say that politically conservative Christians are any more "orthodox" than politically liberal Christians?

I also question the value of these posts. They seem like little more than digests of his law review articles, which have already been linked to. Instead of inviting Professor Sisk to "guest blog," why not just print excerpts from his articles?

I looked at three of the cases that supposedly show anti-Catholic bias. One was a complicated medicare or medicaid reimbursement case in which a for-profit Catholic hospital sought an increase in reimbursements because of its Catholic status. Another was a Catholic FBI agent who claimed discrimination because he was fired for refusing to investigate a Catholic group that he acknowledged was destroying government property. The Third involved prison inmates wanting to have rosaries and other Catholic religious items.

Only the last one seems even arguable. And to claim that case as evidence of bias, you'd have to look at similar claims of inmates demanding to have religious jewelry.

There were only 76 Catholic claimant cases in the data base. That's a small enough number that he should go case by case if he wants to show that the claimants should have won.
3.1.2006 11:53am
Justin (mail):
I'm not sure I'm comfortable with anything that follows from this:

"In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right. Today, the greater threat may come from the left through imposition of anti-discrimination and social welfare requirements even against private associational groups, such as religious believers and communities."

For instance, in this:

Thus, for example, when an evangelical Christian school challenges the application of employment discrimination laws when discharging an unmarried pregnant school teacher or a Catholic hospital resists accreditation requirements for providing abortion-related training or services, a judge may find it more difficult not to think of how those claims stand against the judge's own religious or political viewpoints.

Well, when religious organizations decide to act as players in nonreligious fields (such as primary education or health care), they need to realize that they join as equals. Just like you can use a Pell Grant to attend Georgetown University, the government does not/should not treat these institutions differently just because of the establishment clause. Thus, as follows, voucher programs can be used even when realistically only religious schools will accept the vouchers. Likewise, religion cannot hide behind the free exercise clause to engage in discrimination just because it doesn't like the rules of competition in the field it wishes to join.

If Sisk is equating "requiring a Catholic hospital to provide birth control" with "requiring a Native American church to use nonhallucagenic drugs", then I don't think we should be worried at all about his findings of a "biased" judiciary. They're biased exactly in the way one would hope - in favor of the correct legal outcome.
3.1.2006 11:55am
Bob Bobstein (mail):
A peripheral point. Sisk writes: "In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right."

I wonder which timeframes in the past Sisk has in mind, and why, empirically, the greater threat comes now from the left.

Does the present leftist threat consist of more than "anti-discrimination and social welfare requirements"? One might expect that if Sisk sees greater threats in our past coming from the "law and order patriotism" right, he would be much more concerned today about warrantless wiretaps and indefinite detention of an American citizen without charge and the like, rather than evangelical Christian schools not being allowed to discharge unmarried pregnant school teachers.

Maybe he believes that anti-discrimination law affects more people than the other matters do.

Also, I think I agree with most of the earlier comments. J &Anonymous Comment, I don't think Sisk is interested in give-and-take with the posters, as is his right.
3.1.2006 11:57am
AF:
Well, there you have it. The reason that Catholics and Baptists lose more often than they win is that they "tend to assert controversial claims of conscience that conflict directly with the social policy-initiatives of liberal secular governments." But this is in no sense "aside from the legal merits." The question is whether claims for religious freedom that directly conflict with liberal social policy initiatives have equal merit as claims that don't. I really don't see how an empirical study of which religions win and which lose helps to shed light on that question.
3.1.2006 12:05pm
frankcross (mail):
I just don't think the data support this theory. If it were true that the traditional religions were running up against the mainstream of secular government, you would expect to see lots of challenges from these religions. Because they are very populous and have a huge "mainstream" of government regulation threatening them. Instead, you see many fewer challenges from the traditional religions. That suggests that the mainstream government is relatively solicitous to and not likely to interfere with religious freedom of the traditional religions.
3.1.2006 12:06pm
bob montgomery:
I know that every person thinks that his comments are brilliant and deserve to be dealt with immediately but, seriously, which part of this don't you understand?
On Friday, I'll offer some concluding thoughts, some caveats, and as space permits respond to some of the comments received.
3.1.2006 12:13pm
Proud to be a liberal :
I agree that Sisk has not addressed the comments. For example, he includes cases in which the courts have held that age discrimination laws apply to Catholic institutions (colleges, hospitals, etc.), but he has not identified any religous basis for age discrimination in Catholic theology. Similarly, he has not identified any religious basis for opposition to health and safety laws, workers' compensation, Social Security, etc. He may dislike or disapprove of the New Deal and the Great Society, but simply disagreeing with legislation is not sufficient to create a "free exercise of religion" claim.

Abortion, birth control, and sexual preference do raise issues of religious conscience. It would be helpful if Sisk had identified the specific cases that involve such claims. One legal issue may well be the entanglement of religion with government-funding - that if religious institutions take money from Caesar, they then must comply with Caesar's regulations.
3.1.2006 12:20pm
Freder Frederson (mail):
The hospital example you cite is entirely missing the point--and I think is not even factual as no hospital is required to provide abortion services. Catholic hospitals run into problems when they try to impose their religious doctrine on their employees and operations while still collecting public dollars. If they are going to provide secular services and serve the general public with public funds, then they should not be imposing their beliefs on the general public or their employees who might not be Catholic. For instance, providing birth control pills to employees as part of prescription drug coverage.

Granted the line between religious and secular services may be fuzzy, but it must be drawn. On one side the government has no business dictating policy and the religious order is free to discriminate based on its beliefs. But on the other side of the line, where public, secular funds are being spent and the general public is being served, the government must ensure that public funds are used in a non-discriminatory way.
3.1.2006 12:21pm
Michael McCulley:
"Thus, when traditionalist Catholics and Baptists resist governmental regulation by seeking exemptions from, for example, anti-discrimination or licensing laws, they run against the grain of mainstream secular society in certain regions of the country."

I don't agree that either anti-discrimination or licensing laws are any more or less "secular" than any other health, welfare, or morals legislation. I'm sure that the majority of all Catholics and Baptists approve of the majority of all anti-discrimination and licensing laws currently on the books.

Nor am I (nor probably anyone who practcies labor law, for that matter) surprised that courts are more reluctant to entertain First Amendment challenges to anti-discrimination or licensing laws than to criminal statutes. It is very difficult to determine (especially in the employment context) when an anti-discrimination law or licensing law actually "burdens" a religious belief. It is also very difficult to balance the competing rights and interests of individuals and society in such questions.
3.1.2006 12:21pm
Dan28 (mail):
Sisk has moved from saying something blatantly untrue ("Federal courts tend to practice de facto discrimination against Cat/Bapt claims") to something that is self-evident ("Federal courts tend to reject religious challenges to employment discrimination and social welfare laws"). If you disagree with the merits of Cat/Bapt claims, Sisk has no argument. This is just one long whine about how Catholic groups are not allowed to perform a semi-public function that receives public money without adhering to laws enacted to preserve the equal rights of others in our society.

If Cat/Bapts want to preserve their principled integrity, then they need to retreat from serving in public functions. If they want to participate in the public sphere (by receiving Federal money for their schools or hospitals, by retaining Federal liscences to prescribe medication or arrange adoptions, etc.) they need to recognize that their religious beliefs are secondary to the rule of law in that public sphere. That's a difficult choice for any religious tradition, to decide between sticking to religious principle at the risk of social isolation versus participating in secular society at the risk of comprimising principles. See Christ and Culture by H. Richard Niebuhr for a mature analysis of this paradox. Cat/Bapts are refusing to make this choice and insisting that it is their right to have it both ways. Fortunately, the first amendment prohibits them from doing that.
3.1.2006 12:26pm
Public_Defender:
Professor Sisk may be onto something here, but I don't think it's quite what he intended.

The professor's definition of "traditionalist" religion really just means "politically conservative" religion. Since he defines religion in modern political terms rather than in theological terms, he is really comparing the politics, not the faith, of the claimants.

So if we could show that the judiciary was more liberal than conservative in 1990 (the midpoint of his study), then we would be left with the astonishing point that political liberals tend to support more liberal political positions, so conservatives lose more often.

That would be as shocking as if politically conservative judges tended to reject politically liberal claims.

Professor's Sisk's study appears to be about politics, not religion.
3.1.2006 12:30pm
Preferred Customer:

Thus, for example, when an evangelical Christian school challenges the application of employment discrimination laws when discharging an unmarried pregnant school teacher or a Catholic hospital resists accreditation requirements for providing abortion-related training or services, a judge may find it more difficult not to think of how those claims stand against the judge's own religious or political viewpoints.


Why would this be true only for Catholics and Baptists?
3.1.2006 12:40pm
Justin (mail):
So if we could show that the judiciary was more liberal than conservative in 1990 (the midpoint of his study),

From 1972-1990, there were only four years of Democratic Presidents on the federal bench. Jimmy Carter used nonpartisan committees to determine his appointments to the federal bench. It would shock me if the above statement was true.
3.1.2006 12:43pm
dick thompson (mail):
Proud to be Liberal,

Given your argument about how the recipient of federal funds needs to render unto Caesar, how do you stand on the banning of military recruiters at college campuses? Seems to me that if you really believe what you say, then you must be against Harvard and Yale banning military recruiters from showing up to offer positions to graduates while at the same time standing there with their hot little hands out for research funding. If they ban the recruiters, then they should also not get any funding to follow your argument.
3.1.2006 12:44pm
Dan28 (mail):

then we would be left with the astonishing point that political liberals tend to support more liberal political positions, so conservatives lose more often.


Yeah, what a surprise. Of course, if a liberal has legal opinions, he is expected to keep them to himself. If a conservative has legal opinions, those are neutral and apolitical, and therefore can be enforced at will.

Actually, along those lines, doing a little searching online about abortion picketing cases, I came accross a pretty interesting one. Frisby v. Schultz dealt with a Wisconsin statute that prohibited picketing in residential neighborhoods. The statute was enacted to deal with a month long protest that pro-life groups held outside the house of one particular doctor who performed abortions. The statute was upheld as a reasonable limitation on the free speech rights of the pro-life group. Voting in favor of the statute were O'Connor, Blackmun, Scalia, Kennedy and White. The dissenters were Brennan, Marshall and Stevens (and Stevens' dissent was particularly scathing). Amazingly enough, liberals don't actually base their decisions on the identity of the parties, but on the legal principles involved that apply equally to all parties. Yes, a conservative is more likely to state a claim that a liberal will see as invalid, because the conservative is likely to base that claim on a conservative legal theory that the liberal disagrees with. But that's hardly bias in the judicial system, and the reverse is equally true.

3.1.2006 12:51pm
X (mail):

The professor's definition of "traditionalist" religion really just means "politically conservative" religion. Since he defines religion in modern political terms rather than in theological terms, he is really comparing the politics, not the faith, of the claimants.


Wasn't the above point, made several times in different ways by the same poster, refuted, among other places, at http://volokh.com/posts/1141056907.shtml#69402?
3.1.2006 12:56pm
AK (mail):
Sisk is spot-on when he argues that religions out of the mainstream are at an advantage in court over mainstream religions. The same thing works for speech.

We allow all sorts of time, space, and manner restrictions on poltical speech, through campaign finance and election laws. But when the speech is upsetting to the moral sensibilities of many, it stands a strong chance of being protected. I cannot give more than $2,000 to a candidate, but I can buy as many lap dances as I want.
3.1.2006 1:03pm
Marcus1 (mail) (www):
So basically, you're suggesting that culturally elite judges are hostile to all religion, but since they see Christianity as more of a threat, they tend to treat Christian claims with more unabashed hostility that they restrain in regard to other fringe religions.

I'm just not sure I see any evidence that this actually occurs or that this is the correct explanation, when there are other explanations that are much more direct.

One additional question: why then is it just Catholics, Baptists and Muslims, that are supposedly treated worse, and not simply Christians? I don't see how these specific groups support your theory.
3.1.2006 1:04pm
Anon1ms (mail):
"In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right. Today, the greater threat may come from the left through imposition of anti-discrimination and social welfare requirements even against private associational groups, such as religious believers and communities."

As Johnny Carson used to say, "If you buy the premise, you buy the bit."

I'm not buying.
3.1.2006 1:07pm
Proud to be a liberal :
I love the spending clause. I have no problem with the federal government tying federal funds to allowing military recruiters on campuses.

But restrictions on the use of government funds presents a different issue than a "pure" free exercise of religion case.

Also, much legislation involving abortion does have "conscience" clauses which allow doctors &hospitals not to perform abortions if doing so conflicts with their religious beliefs.
3.1.2006 1:16pm
Bob Bobstein (mail):
Is AK the only person who's defended Prof. Sisk in this thread? Is anyone else willing to defend his conclusions?

Reaction seems to be negative, with many different reasons among posters.
3.1.2006 1:45pm
eponymous coward (mail):
Accordingly, orthodox Christians who seek accommodations that reflect traditional religious values may not be at all well-positioned for litigative success in the modern era—especially before a judiciary that is drawn largely from the cultural elite.

I like the part where Professor Sisk glosses over the fact that Republicans will have held the Presidency 28 years out of 40 from the years 1968-2008 (as well as the Presidency for all but 4 years from 1968-1992, the time most crucial to his studies).

Or does he consider a party that quite clearly spends a lot of time adopting Catholic/Baptist positions on major issues (abortion, sex education, etc.) the "cultural elite"?
3.1.2006 2:20pm
Bob Van Burkleo (mail):
Well if were correct for religiously affiliated businesses to be free to treat employees that don't follow that faith as if they did, wouldn't every business want to be affiliated with the Christian Scientists? Imagine the savings of not having to pay any health coverage at all!
3.1.2006 2:31pm
Preferred Customer:

Or does he consider a party that quite clearly spends a lot of time adopting Catholic/Baptist positions on major issues (abortion, sex education, etc.) the "cultural elite"?


More than that--I think the implicit assumption that "cultural elite" equals "liberal" is just ridiculous. Perhaps (and that is a big perhaps) that is true in some parts of the country, but in other parts of the country, the "cultural elite" is just as likely (perhaps even more likely) to be socially conservative as anyone else.

Of course, that's assuming that the judiciary, in fact, is "largely drawn" from the cultural elite, whatever that is.
3.1.2006 2:33pm
Sydney Carton (www):
Public Defender: "why do you say that politically conservative Christians are any more "orthodox" than politically liberal Christians? .... The professor's definition of "traditionalist" religion really just means "politically conservative" religion. Since he defines religion in modern political terms rather than in theological terms, he is really comparing the politics, not the faith, of the claimants."

I'm not sure I follow your complaint. Are you complaing that a connection between "orthodox" Christianity is being made with political conservatives, or are you complaining that "orthodox" Christianity is connected to "traditionalists"? Or that there should be a distinction between the two and that none is being made?

I think you're saying that "orthodox" Christianity is not the same as "traditional" Christianity. Or not. Can you clarify?
3.1.2006 3:09pm
Sydney Carton (www):
Preferred Customer: "More than that--I think the implicit assumption that "cultural elite" equals "liberal" is just ridiculous. Perhaps (and that is a big perhaps) that is true in some parts of the country..."

Only in places like New York City, Washington DC, LA &Hollywood, Chicago, Boston, San Francisco, Baltimore, Denver, Seattle, and every other major city in America. I'd be hard pressed to find a large city that was "culturally conservative," in which, for example, large swaths of the voters in those large cities were explicitly pro-life. New York, Washington DC, and Hollywood set the cultural tone for the country. Elites aren't taking cues from Salt Lake City, that's for sure. And apart from Salt Late, maybe in places like rural Tennessee or Mississippi, or perhaps South Dakota, will you find a "cultural elite" of social conservatives. But give me a break: Most of America's elites are liberal through and through.
3.1.2006 3:15pm
Justin (mail):
Sydney, you're confusing "elites" from the attitudes of the cities that "elites" arise from. Manhattan may be heavily Democratic, but the majority of CEOs of Fortune 500 Companys in NY are not. Fox may be in Hollywood, which votes Democratic, but its CEO is most decidedly a supporter of the GOP. The major lobbyists all live in the beltway but are mostly Republican. Bill Gates and Paul Allen both have donated significant amounts of money to Republicans (Allen is a registered Democrat, and Gates a registered Independant, I believe). Stanford, Chicago, Michigan, Kellogg, and Columbia business schools all have disproportionate amounts of Republicans in their halls. Boston sucks.
3.1.2006 3:33pm
Preferred Customer:

But give me a break: Most of America's elites are liberal through and through.



This is a hard assertion to counter, because I don't know what you mean by "elite." Do you mean political leaders? It may be the case that the political leadership in large urban areas is largely liberal, but the political leadership in large *suburban* areas near those large urban areas certainly may not be. Large swaths of voters in these areas are explicitly pro-life, to take one example. Hell, given the Republican domination of all three branches of government, and the widespread election of Republican governors, *someone* out there must be conservative.

Or maybe you mean social leaders (like, e.g., priests)? Important members of the community (like, e.g., James Dobson)? Law professors (like many on this blog)? Who are we talking about that are "liberal through and through"?

My sense is that "cultural elite" is generally used as a stand in for "liberal intelligentsia," "actors living in Hollywood," or "staff of the New York Times." If that's how we are defining the phrase, then of course the "cultural elites" are liberal. But it is not obvious to me that most of the judiciary is drawn from these groups.
3.1.2006 3:33pm
Sydney Carton (www):
"If that's how we are defining the phrase, then of course the "cultural elites" are liberal."

That's how I was defining it, which would include the law schools and bar associations (included in "liberal intelligentsia"). As for who is picked for the judiciary: I suspect it's probably people in positions to recommend them to the President for their appointment. Patronage probably plays a large role, or at least used to, I'm sure. It might not mean that these people are not wholly part of the cultural elite, but it'd probably mean a lot of them are.

In general, I'd love for this survey data to be wrong, or flawed. But I have no love for the Judiciary, and I think that the conventional wisdom of them as hostile to religion and Christianity in particular is true. If the evidence is wrong, then fine. But maybe it isn't. Or maybe this sort of thing can't really be judged scientifically, unless one were to poll the judges and they answered honestly. Anyway, there's a reason why the left for the most part furthers its social agendas using the judiciary instead of the ballot-box. Maybe I'm wrong, but I think that among cultural conservatives, there is a widespread acceptance of the belief that the judiciary is an ossified bunch of unrepentant leftists who make up the law as they go in order to attack traditional Christians and even socially conservative organizations (like the Boy Scouts). It's why marriage protection statutes or amendments passed in so many states: because social conservatives FEAR the judiciary's power. Those voters probably don't view the judiciary as an impartial system, with blind justice, and a fair weighing of merits, with certain cases left to the political branch. They view it instead as entirely hostile and drunk with power.

Blame the legal realists, I suppose, who first proposed the idea of law as merely another chessboard for power plays. Now everyone has to either play by those rules or lose. But since this genie is out of the bottle, I don't think it'll be put back anytime soon. That's why, even if the Judiciary is stock-full of conservatives, I've reluctantly decided the better course of action is to limit the Jucidiary's power in most instances (term limits, stripping it of jurisdiction, impeachment of judges, etc). I plead guilty to being cynical. Sue me.
3.1.2006 4:03pm
BobN (mail):
The only example of a society that was not run by its "cultural elite" that comes to mind is the People's Republic of China in the first years of the Cultural Revolution, and wasn't that a fine idea???

I'm no lawyer, but Fisk's arguments sure seem chockful of political jargon (of a particular stripe) for a legal argument.
3.1.2006 4:10pm
J..:

Boston sucks.

:rant:
3.1.2006 4:11pm
Preferred Customer:

That's how I was defining it, which would include the law schools and bar associations (included in "liberal intelligentsia"). As for who is picked for the judiciary: I suspect it's probably people in positions to recommend them to the President for their appointment. Patronage probably plays a large role, or at least used to, I'm sure. It might not mean that these people are not wholly part of the cultural elite, but it'd probably mean a lot of them are.


As others have noted, the majority of Presidents over the past 20 30 40 50 years have been Republicans. Why would the (presumably conservative) people in positions to recommend judicial candidates to Republican Presidents recommend liberals? What evidence is there that the majority of the judiciary is "liberal"?


Maybe I'm wrong, but I think that among cultural conservatives, there is a widespread acceptance of the belief that the judiciary is an ossified bunch of unrepentant leftists who make up the law as they go in order to attack traditional Christians and even socially conservative organizations (like the Boy Scouts).


Or (maybe) the judiciary is simply enforcing laws that "attack" traditional Christians and even socially conservative organizations, because those organizations operate in ways that violate the law.

It's certainly another possibility. Until we see the post that addresses the relative merits of the cases studied (something that I would have led with, I think) we won't know Sisk's answer to that question.
3.1.2006 4:24pm
Montpellier (Guest):
I think Prof. Sisk isn't engaging or addressing the criticisms because he's getting a free murder board for his arguments.

Dan28 &Public_Defender - you're right - this is a political, not legal, argument.
3.1.2006 4:26pm
Sydney Carton (www):

"Why would the (presumably conservative) people in positions to recommend judicial candidates to Republican Presidents recommend liberals?"


Don't forget, 50 years ago, the Republican party was not as conservative (and the Democratic party was not as liberal). The trend has been towards increasing partisanship, but it's not until recently that Republicans began demanding conservative judges, and liberals began demanding liberal judges. Eisenhower, Nixon, Ford, and even Reagan appointed judges who were probably all very politically connected, but might not have been conservative.


Or (maybe) the judiciary is simply enforcing laws that "attack" traditional Christians and even socially conservative organizations, because those organizations operate in ways that violate the law.


You misunderstand me. I said there's a BELIEF among social conservatives that the judiciary is hostile towards them. I think that BELIEF is true. Whether, in fact, the judiciary is ACTUALLY hostile to them is another matter (I also happen to think that they are, and hence, I am extremly cynical, but I have no way of actually knowing).

The point I tried to make is that a large segment of the population entirely distrusts the judiciary, and as a result, we're seeing things like Constitutional Amendments protecting marriage. I submit that even if the judiciary isn't, in fact, hostile towards social conseratives or Christians, it is a bad thing if large numbers of those people believe it to be the case. They have written off one-third of the government (not to mention, naturally, the 4th branch of the media). To that end, I at least applaud the attempt to see if the judiciary is hostile. If this survey is flawed, I hope that the comments being made are done with the idea to improve it. After all, wouldn't all of us want to know if, in fact, the judiciary is biased or hostile to a particular people?

Or have the legal realists so won the debate that, if they're biased against Christians, that's ok?
3.1.2006 4:47pm
Justin (mail):
You misunderstand me. I said there's a BELIEF among social conservatives that the judiciary is hostile towards them. I think that BELIEF is true. Whether, in fact, the judiciary is ACTUALLY hostile to them is another matter (I also happen to think that they are, and hence, I am extremly cynical, but I have no way of actually knowing).

TRUTHINESS!!!!!
3.1.2006 4:51pm
byomtov (mail):
My thanks to Professor Sisk for making his data available. A preliminary look suggests that the cases brought by Catholics and Baptists have a different distribution of issues than those of the entire population. For example, 8 of the 36 "free exercise" cases brought by Baptists were tax cases. Only 48 of the 1198 FE cases were tax-related, and 32 of those were brought by members of "other" or "undetermined or none" religions. Does anyone else smell "crackpot" here?

Catholic cases tend to fall disproportionately into the area of education. Before concluding that Catholics face discrimination in the courts it is worth examining these claims as distinct from other categories.

This suggests to me that there is evidence in the data that in fact there are substantial differences in the types of claims brought by members of different groups, and that this accounts for Sisk's results.
3.1.2006 4:51pm
frankcross (mail):
We know some things from empirical evidence on judicial decisions. The Eisenhower judges were not particularly conservative. The Nixon judges were pretty conservative. The Reagan judges were quite conservative, as were those of the first Bush Administration. The Carter judges, though, were not very liberal, though this depended on the issue.

We also know that judges are influenced by their religious beliefs on some issues. E.g., Catholic judges are much less likely to look favorably upon a gay rights claim than are Jewish judges.
3.1.2006 4:54pm
Sydney Carton (www):
"TRUTHINESS!!!!!"

??? Um, thanks? Why the excitement?
3.1.2006 4:59pm
Justin (mail):
It was the 2005 Word of the Year.

http://en.wikipedia.org/wiki/Truthiness
3.1.2006 5:16pm
Preferred Customer:

The point I tried to make is that a large segment of the population entirely distrusts the judiciary, and as a result, we're seeing things like Constitutional Amendments protecting marriage. I submit that even if the judiciary isn't, in fact, hostile towards social conseratives or Christians, it is a bad thing if large numbers of those people believe it to be the case. They have written off one-third of the government (not to mention, naturally, the 4th branch of the media). To that end, I at least applaud the attempt to see if the judiciary is hostile. If this survey is flawed, I hope that the comments being made are done with the idea to improve it. After all, wouldn't all of us want to know if, in fact, the judiciary is biased or hostile to a particular people?

Or have the legal realists so won the debate that, if they're biased against Christians, that's ok?


I agree that this belief exists. I am extremely dubious about its validity. I agree that (if I am right, and the belief is incorrect) it is a Very Bad Thing for people to hold that erroneous belief, because (as you point out) it leads to all sorts of flailing around that is not only unnecessary, it is affirmatively harmful.

Unfortunately, it seems that there is a lot of political gold to be mined in convincing people that the judiciary hates conservatives. The most effective way to avoid creating and sustaining what (in my mind) is a largely erroneous impression of hostility is not to undertake "research" that seems to have political overtones, but rather to have "conservative elites" (e.g., O'Reilly) stop pounding the table about this supposed bias.
3.1.2006 5:22pm
Public_Defender:
Sydney,

I'm saying that Sisk is not clear on what makes one religious sect "orthodox" or "traditional" and another not. Without an intelligent distinction, the rest of his data is meaningless. Further, Sisk calls "traditional" sects like the Southern Baptists that have (at least arguably) strayed far from the traditional positions of their faith. He therefore takes sides in what should be intrafaith disputes.

Although it's not a perfect correlation, his definition of "traditional" appears to mean "politically conservative".

It's too bad Sisk is just dumping digests of his law review articles into this blog instead of defending his arguments.
3.1.2006 5:32pm
Clayton E. Cramer (mail) (www):

As others have noted, the majority of Presidents over the past 20 30 40 50 years have been Republicans. Why would the (presumably conservative) people in positions to recommend judicial candidates to Republican Presidents recommend liberals? What evidence is there that the majority of the judiciary is "liberal"?
As Sydney Carton has pointed out, "conservative" was a lot more liberal some years ago than it is now. Under which "conservative Republican" President was the EPA established, and wage and price controls adopted? Oh yeah, he also pushed for a national speed limit.

The population of the U.S. has moved markedly to the right in a number of areas since Nixon. Ideas that were considered lunatic fringe when I was young (that inflation was largely driven by changes in the money supply, that welfare programs tended to encourage dependency, Christianity, that homosexuality was a sickness) have become mainstream.

Judges, on the other hand, being lawyers, have not moved to the right. If anything, they have moved to the left. Look at who voted for Lawrence!
3.1.2006 6:32pm
Clayton E. Cramer (mail) (www):

Unfortunately, it seems that there is a lot of political gold to be mined in convincing people that the judiciary hates conservatives. The most effective way to avoid creating and sustaining what (in my mind) is a largely erroneous impression of hostility is not to undertake "research" that seems to have political overtones, but rather to have "conservative elites" (e.g., O'Reilly) stop pounding the table about this supposed bias.
One of the things that tends to create this "erroneous impression of hostility" is the way that judges keep changing the rules to suit liberal sensibilities. Creating a system where the County of Los Angeles immediately rolls over and agrees to remove an historic cross from a mission in their county seal because the prospect of losing is strong. Judges who sentence rapists to 60 days in jail for raping a child, or in one recent case, to no jail time at all for raping a 15 year old boy. And since some of you are going to immediately call me to account for suggesting that a judge who does that is a liberal--well, she was the keynote speaker at the 2000 Massachusetts Lesbian and Gay Bar Association dinner.
Judges who issue temporary injunctions to require states to pay for sex-change operations for prisoners. You tell me: is this perception of judges as liberals the doing of big bad Fox News? Or the doing of judges like these?
3.1.2006 6:42pm
CaDan (mail):
I'm glad to see the trend of content-free posts by our guest blogger continues.
3.1.2006 6:42pm
Dan28 (mail):

One of the things that tends to create this "erroneous impression of hostility" is the way that judges keep changing the rules to suit liberal sensibilities.


Thesis: Judges keep changing the rules to suit liberals.

Evidence: Los Angeles taking a cross off their county seal.
A guy in Massachusetts didn't get jail time for statutory rape with a 15 year old.
A judge grants an injunction pending evaluation of a claim by the ACLU.

None of those examples in any way supports your thesis. I see rules there, but no examples of changing rules to fit liberal sensibilities. I certainly don't see anything there that suggests unequal treatment based on the religious identification of parties, which is of course that this thread is supposed to be about. Did Los Angeles keep a star and crescent on their county seal when they eliminated the cross?
3.1.2006 10:34pm
Defending the Indefensible:
Reading this thread and then seeing this story just made me think they ought to go together like, I dunno, peanut butter and bananas. Well, I think they make a pretty good sandwich, personally.

http://www.abcnews.go.com/Nightline/story?id=1635472
Abdala finally answered, "Bla bla bla."
3.2.2006 1:15am
JohnEMack (mail):
Surely one reason for the poor success rate of main stream religions is the nature of the cases in which they tend to be involved. The Catholic Church's followers are not going to be passing out inflammatory literature at inconvenient locations, nor are Baptists going to be conducting animal sacrifices or using peyote in religious ceremonies. They have sufficient adherents in municipal boards and state legislatures that they are not going to be the object of discriminatory laws or laws which prohibit their practices. By contrast, Moonies, Hari Khrishnas, et., are going to collide with ordinary public sensibilities and are going to invoke the attention of legislative bodies. Often law enforcement and state and local legislatures, who have no great love for them, are likely to go overboard in ways which restrict their rights under, e.g., the first amendment. When they go overboard, law enforcement &legislative acts are likely to be overturned. So when "marginal" religions get into court, they are likely to do so on issues which invoke judicial sympathy. By contrast, mainstream religions usually get into court on the type of issue that traditional, establishment institutions tend to bring into court, because few people or institutions are likely to impinge on their rights blatantly. Hence, the cases in which they are likely to be involved, like cases between established businesses, are likely to be "close," and litigants tend to lose close cases about half the time.
3.2.2006 9:45am
frankcross (mail):

You tell me: is this perception of judges as liberals the doing of big bad Fox News? Or the doing of judges like these?


I think it's the doing of people who take isolated and unrepresentative anecdotes and spread them as if they were representative of the judiciary.
3.2.2006 10:34am
Anon1ms (mail):
Mr. Cramer cites as evidence of changing the rules to suit "liberal sensibilities",

Judges who issue temporary injunctions to require states to pay for sex-change operations for prisoners.
The reference he directs us to, however, does not deal with sex change operations, but rather whether or not Wisconsin should force inmates to discontinue hormonal treatment that they were already on when incarcerated.

In other words, this is a question of what drugs the state should be required to provide inmates in its care.

In this particular case, maybe the state should, maybe it shouldn't, but the question is hardly way out there. Mr. Cramer's assertion, however, is. As usual.
3.2.2006 10:35am
Clayton E. Cramer (mail) (www):

The reference he directs us to, however, does not deal with sex change operations, but rather whether or not Wisconsin should force inmates to discontinue hormonal treatment that they were already on when incarcerated.
Nope. The suit was started because the Wisconsin legislature prohibited government funding of sex changes for inmates, including pre-surgical hormonal treatment. Nothing in the article I referenced says that they were receiving hormonal treatment when they were incarcerated. But you are a lawyer, so why bother to tell the truth?

E

vidence: Los Angeles taking a cross off their county seal.
A guy in Massachusetts didn't get jail time for statutory rape with a 15 year old.
A judge grants an injunction pending evaluation of a claim by the ACLU.

None of those examples in any way supports your thesis. I see rules there, but no examples of changing rules to fit liberal sensibilities.
No jail time for raping a 15 year old? Sixty days for molesting a 9 year old (later revised after a firestorm of negative publicity)? These sure sound like liberalism at work to me--child molestation isn't a serious crime.

As for taking the cross off the county seal: a similar threat of suit in Rohnert Park caused them to remove both a cross and a Star of David from their city seal. This is not a position required by the establishment clause; it is a position that is required by the ACLU's misreading of history.
3.2.2006 10:48am
rick:
Yes, because liberals support rape.

I love argument by anecdote because nobody is ever wrong, they just go to their next story.
3.2.2006 1:55pm
rick:
Actually, sometimes people are wrong in arguments by anecdote, since Cramer says this:


Nothing in the article I referenced says that they were receiving hormonal treatment when they were incarcerated.



And the article he referenced says this:


The lawsuit came in response to the complaints of four Wisconsin prisoners currently undergoing hormonal sex changes, who were temporarily forced to discontinue hormonal therapy after the passage of Assembly Bill 184.
3.2.2006 2:23pm
Lior:
I have not looked at the data, but on first sight a simple theory might be able to account for it: I'd expect majority groups to lose more often since they are less likely to be discriminated against.

Claims of discrimination seem to span a spectrum from direct (Jews need not apply; must be white to vote) to indirect (applicants must be willing to work on Saturdays; employers may not discriminate based on marital status; must have voting grandfather to avoid voting test). The more the discrimination is an as-applied outcome, the less likely the court is to find impermissible (unconstitutional/illegal) discrimination. Due to the way laws and regulations are enacted, it is highly unlikely that majority groups will be directly and expressly dicriminated against. The indirect cases call upon the court to go close to policy decisions (what are the relative costs and public/governmental interests affected, etc), and the less certain is the outcome.
3.2.2006 5:22pm