[Greg Sisk (guest-blogging), February 27, 2006 at 10:15am] Trackbacks
Religious Liberty in the Courts: Are Traditionalist Christians Now the Disfavored Group?

The enduring legal myth is that members of minority religious groups face a decidedly uphill battle in securing accommodation for unconventional religious practices, expression, or values from the courts. According to the conventional wisdom, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. However based upon our empirical study of religious liberty decisions in the federal courts, the proposition that minority religions are less successful with their claims was found to be without support, at least in the modern era and in the lower federal courts. In fact, counter to popular belief, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, appear to be the ones that today enter the courthouse doors at a disadvantage.

At Eugene Volokh's kind invitation, I will be guest blogging once daily this week, drawing upon our empirical study of religious liberty cases. In today's posting, I provide a brief synopsis of this empirical study and of the findings relating to the religious background of claimants. Beginning tomorrow, I will address possible reasons for or ways of understanding these findings. On Friday, I'll offer some concluding thoughts, some caveats, and as space permits respond to some of the comments received.

Together with Michael Heise (Cornell) and Andrew Morriss (Case Western), I have been engaged for several years in the empirical study of influences upon decisionmaking in the lower federal courts. Most recently, we have been exploring religious liberty decisions. Our focus has been upon published decisions (1986-1995) that involved constitutional rights, and parallel federal statutory civil rights (such as the Religious Freedom Restoration Act and the Equal Access Act), asserted by religiously affiliated organizations or individuals to challenge the formal actions of government.

With respect to free exercise of religion (and related) claims where the religious affiliation of claimants could be identified, our study included 969 judicial participations (that is, judge votes), from both the District Courts and the Courts of Appeals, in which claimants succeeded in obtaining a positive response from the judges in 37.9% of the observations. An exhaustive description of the study, data, variables, methodology, and findings may be found in Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004), available at this link in pdf format. The empirical success or failure by religious background of claimants is further developed in How Traditional and Minority Religions Fare in the Courts: Empirical Evidence from Religious Liberty Cases, 76 U. Colo. L. Rev. 1021 (2005) available at this link in pdf format.

Based upon our study, the vitality of religious variables to a more complete understanding of judicial decisionmaking in this area of law seems abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking in our study was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.

Let me cut to the chase and set out the pertinent findings for this week's discussion:

First, those religious groupings that both today and historically have been regarded as outsiders or minorities, such as Jews, Muslims, Native Americans, and various others (including Jehovah's Witnesses and Christian Scientists), did not succeed or fail in making religious liberty claims at a rate (controlling for all other variables) that was significantly different than for other religious classifications. In sum, with the potential exception of Muslim claimants in certain claim subcategories, religious minorities did not experience disproportionately unfavorable treatments in the federal courts of the 1980s and 1990s.

Second, two categories of religious affiliation by claimants emerged as consistently and significantly associated with a negative outcome—Catholic (at the 99% probability level) and Baptist (at the 95% probability level).

The question remains why those whose religious views are within the mainstream of American society would be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices. I'll examine several possible answers to that question, beginning tomorrow.