In yesterday’s guest post, based upon our empirical study of a religious liberty cases in the federal courts, I reported that the conventional wisdom that members of minority religions are significantly less likely to secure a favorable hearing from judges in the modern era was found to be without support. 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, adherents to traditionalist Christian faiths, specifically Roman Catholics and Baptists, are the ones who enter the courthouse doors at a distinct disadvantage.
So why would those whose religious views are within the mainstream of American society be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices? That question provoked a plethora of vigorous comments yesterday, many of which suggested preferred answers or registered objections to the study. I am much comforted that these comments raised little that I had not already anticipated and planned to address in the coming days. Please be patient as the discussion unfolds a little more each day, eventually addressing most of these points in turn.
The simplest, if the most disturbing, explanation for the impaired litigation success of Catholics and Baptists would be that old-fashioned religious bigotry remains at work. To be sure, as several scholars have documented in recent years (Philip Hamburger, Thomas Berg, John Jeffries, James Ryan, Richard Garnett), the evolution of church-state doctrine in the courts historically was substantially influenced by cultural prejudices against the Catholic Church as an institution and Catholics as religious minorities in American society. At earlier points in American history, Baptists too suffered persecution in certain regions for their enthusiastic and evangelical religious practices.
However, despite the sobering lessons of history, the skeptical judicial audience encountered by Catholic and Baptist claimants in our study need not be understood in terms of ordinary bias. As common as it may be these days to assume malice on the part of others, I regard a charge of unthinking prejudice here as unfair and too simplistic.
A second and quite plausible explanation for the results in our study may be that the very fact of near-mainstream status works against a successful request for accommodation. Judges may consciously or subconsciously conclude that followers of those religious traditions are capable of effectively participating in the political process and thus are neither in need nor deserving of protection through judicial intervention from the results of that political process. Indeed, confirming that such assumptions are widespread, some of yesterday’s comments insisted upon this explanation.
Similarly, because Catholics and Baptists are perceived by judges as having been fully acculturated into American society, individuals from such religious traditions may not be taken as seriously when asserting a conflict between their religious values and a government directive. As Michael McConnell has argued, judges may be unwilling to believe that “ordinary Americans” from mainstream religious groups “might entertain religious convictions that are out of the ordinary.” Thus, judges may assume that no mainstream religious believer need seriously fear meaningful repression by majoritarian government or serious burdens on religious conscience.
If this indeed explains the results in part, I submit this would be unfortunate and unjust. Presuming to treat a purportedly mainstream religion with less solicitude because of its supposed political strengths ignores the fact in our pluralist society that what constitutes the conventional in one region of the country may fall well outside of the norm in another. Tom Berg writes (link) that “in many places and institutions in the nation, evangelical Christians dominate culturally and politically and non-Christians constitute minorities,” while “in many other places and institutions, and on certain issues, traditionalist Christians join traditionalist Orthodox Jews as the outsiders.” (And, as suggested by some comments, yes, we specifically controlled in our study for religious demographic factors in the deciding judge’s locality.)
Tomorrow I’ll explore an additional explanation, considering whether the impaired success of traditionalist believers in the court might best be understood as turning on fundamental conflicts about social values. On Thursday, I’ll respond to several comments by addressing the suggestion that Catholics and Baptists lose in court because they should lose, that is, because their legal arguments simply are weaker.