The Volokh Conspiracy - How Religious Liberty Claimants Fare in the Courts—Responding to the Critics and Closing Thougths:

During this past week, I've offered a series of thoughts about why traditionalist Christian (specifically Catholic and Baptist) claimants in religious liberty cases now appear to be the disfavored parties in court. Several responses to my postings offered thoughtful questions about methodology or provocative arguments about religious liberty. Other comments, salted with pejorative labels ("pseudo-science," "cartoonish") or impugning the researcher's motives or competence ("whining," "right-winger," "unscholarly"), were less analysis than sneering. To quote Martin Marty quoting William Paley: "Who can refute a sneer?"

The subject that received the greatest attention of course was whether traditionalist (or social-conservative) Christians are being treated unfairly in religious liberty litigation or instead are just getting what's coming to them. Here there was more consensus than might appear. First, most accepted the baseline finding that Catholic and Baptist claimants were significantly more likely to fail. Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims. In sum, despite sound and fury, the principal findings of the study emerged undisturbed.

A few voices wisely warned not to extrapolate from these findings to construct a general model of religious freedom in American society. Given the larger number of lawsuits filed by minority religionists compared to their proportion in the general population, they further suggested that the average Muslim or Native American is more likely to experience religious hostility in society than the average Catholic or Baptist. That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data.

In any event, our study forthrightly focused on religious liberty claims in court. Trends in judicial reception of religious liberty claims flow back into society and influence societal attitudes. And impartial and even-handed treatment by judges of claimants regardless of religious affiliation is an important value in itself.

Most critics parted ways with me on how to characterize the finding that Catholics and Baptists were less likely to succeed in court. I suggest typical claims by Catholics and Baptists—seeking exemption from anti-discrimination rules, licensing and regulatory requirements, etc.—were a shot right across the bow of the liberal ship of state. Critics retort that these anti-discrimination or regulatory provisions advance compelling public interests that admit to no exception. I respond that they are conflating the merits—and thus the scope of religious liberty—with ideological or cultural preferences. And 'round we go.

Two weeks ago, in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 2006 WL 386374 (U.S. 2006), the Supreme Court unanimously held that the Religious Freedom Restoration Act (FRFA) demands a "focused" and not a "categorical approach": "[T]he compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." Thus, when a religious sect makes sacramental use of a hallucinogenic substance, "mere invocation" by the government of a general prohibition on non-medical use of narcotics is insufficient to override it.

My vision of religious liberty denies presumptive power to any political agenda, of left or right, over claims of religious conscience. I expect that religious liberty claims by people of all faiths should receive a particularized judicial consideration and not be submerged beneath political platitudes about either "law and order" or "the equal opportunity society." An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty.

This vision fits comfortably with today's Supreme Court under RFRA and with such liberal stalwarts for civil liberties as Justices Brennan and Marshall a generation ago under the Free Exercise Clause of the First Amendment. That many today characterize the case for a robust, vigorous, and broadly-applied judicial protection of religious liberty as but mere conservative special-pleading speaks volumes about the evolution within elite society of attitudes toward religious values and tolerance of dissenting religious perspectives.

In closing, whether you find my research and analysis to be commendable or damnable, I am transparent about what I'm doing. For anyone interested in digging into the dataset, it always has been publicly available.

	[Greg Sisk (guest-blogging), March 3, 2006 at 11:15am] Trackbacks How Religious Liberty Claimants Fare in the Courts—Responding to the Critics and Closing Thougths: During this past week, I've offered a series of thoughts about why traditionalist Christian (specifically Catholic and Baptist) claimants in religious liberty cases now appear to be the disfavored parties in court. Several responses to my postings offered thoughtful questions about methodology or provocative arguments about religious liberty. Other comments, salted with pejorative labels ("pseudo-science," "cartoonish") or impugning the researcher's motives or competence ("whining," "right-winger," "unscholarly"), were less analysis than sneering. To quote Martin Marty quoting William Paley: "Who can refute a sneer?" The subject that received the greatest attention of course was whether traditionalist (or social-conservative) Christians are being treated unfairly in religious liberty litigation or instead are just getting what's coming to them. Here there was more consensus than might appear. First, most accepted the baseline finding that Catholic and Baptist claimants were significantly more likely to fail. Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims. In sum, despite sound and fury, the principal findings of the study emerged undisturbed. A few voices wisely warned not to extrapolate from these findings to construct a general model of religious freedom in American society. Given the larger number of lawsuits filed by minority religionists compared to their proportion in the general population, they further suggested that the average Muslim or Native American is more likely to experience religious hostility in society than the average Catholic or Baptist. That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data. In any event, our study forthrightly focused on religious liberty claims in court. Trends in judicial reception of religious liberty claims flow back into society and influence societal attitudes. And impartial and even-handed treatment by judges of claimants regardless of religious affiliation is an important value in itself. Most critics parted ways with me on how to characterize the finding that Catholics and Baptists were less likely to succeed in court. I suggest typical claims by Catholics and Baptists—seeking exemption from anti-discrimination rules, licensing and regulatory requirements, etc.—were a shot right across the bow of the liberal ship of state. Critics retort that these anti-discrimination or regulatory provisions advance compelling public interests that admit to no exception. I respond that they are conflating the merits—and thus the scope of religious liberty—with ideological or cultural preferences. And 'round we go. Two weeks ago, in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 2006 WL 386374 (U.S. 2006), the Supreme Court unanimously held that the Religious Freedom Restoration Act (FRFA) demands a "focused" and not a "categorical approach": "[T]he compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." Thus, when a religious sect makes sacramental use of a hallucinogenic substance, "mere invocation" by the government of a general prohibition on non-medical use of narcotics is insufficient to override it. My vision of religious liberty denies presumptive power to any political agenda, of left or right, over claims of religious conscience. I expect that religious liberty claims by people of all faiths should receive a particularized judicial consideration and not be submerged beneath political platitudes about either "law and order" or "the equal opportunity society." An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty. This vision fits comfortably with today's Supreme Court under RFRA and with such liberal stalwarts for civil liberties as Justices Brennan and Marshall a generation ago under the Free Exercise Clause of the First Amendment. That many today characterize the case for a robust, vigorous, and broadly-applied judicial protection of religious liberty as but mere conservative special-pleading speaks volumes about the evolution within elite society of attitudes toward religious values and tolerance of dissenting religious perspectives. In closing, whether you find my research and analysis to be commendable or damnable, I am transparent about what I'm doing. For anyone interested in digging into the dataset, it always has been publicly available.