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?