How Traditional and Minority Religions Fare in the Courts:

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?

Joel B. (mail):
In meaning no offense, let me just say "Duh!" I think if you talked to most evangelicals they don't think they come into courts with any "advantage." Most readily recognize the distorted anti-Christian positions that the courts in the US have taken.

I don't know when I have ever gotten the impression that the courts are even slightly hospitable towards traditionalist Christians. In fact, I theorize that the easiest way to 'harmonize' something like the last 20 years of Supreme Court jurisprudence (post-Bowers) has been (at least in issues of morality) consider the traditional Christian point of view on the issue. Holding will be against them. And you know what, as far as it goes, it sure seems to hold up better than any "originalism," "living Constitution," or whatever dreamed up theory of Constitutional law is out there. But hey I'm not bitter ;-).
2.27.2006 9:43am
It may have something to do with the relative ease Christians, vis a vis minority religious groups, have in achieving their group objectives through the political process.
2.27.2006 9:52am
Shantanu (mail):
Extending on the political process theme, it would be notable if the "uncoventional" religions succeed at a greater rate because their issue deals with the ability to express their faith as a form of religious expression and not political aspirations that reach into public life.
2.27.2006 9:58am
Shantanu (mail):
"unconventional" spelling...
2.27.2006 10:02am
Anderson (mail) (www):
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.

Off the cuff, and in line with previous commenters, I would strongly suspect that the traditional Christians are the more likely to be seeking to IMPOSE their beliefs rather than merely seeking "liberty" for them. For example, school prayer cases where the "liberty" is for all students to listen to a Christian prayer.

But perhaps Prof. Sisk's article addresses that issue, &I look forward to his postings at the VC.
2.27.2006 10:09am
If it can be shown that the courts are giving more latitude towards the minority religions than mainstream Christianity, then perhaps I could be persuaded.

Many of the cases I have read seem to be more about leveling the playing field than awarding minority religions more "rights" than Christianity.

I could be wrong though, this is just my perception.
2.27.2006 10:14am
Bob Bobstein (mail):
Is it possible that minority religious groups are more likely to be the target of govt impositions to begin with-- like the hallucinogenic tea drinkers? So their cases might have more of a claim to "freedom from" imposition rather than a "right to" govt funding or recognition?

This is related to, but slightly different from, Anderson's point-- I suspect, with no empirical justification whatsoever, that traditional religious groups are in the courts in pursuit of some benefit or subsidy from the government, rather than trying to impose their views on others.

I suppose my next step is to actually read the article...
2.27.2006 10:27am
Houston Lawyer:
I miss the prayers at football games. As student body president, it was my job to say the prayer until I could find someone else to do it for me. Since praying in public is not one of my skills, I was often complemented on the brevity of the prayers offered. Soon though, I found a good Southern Baptist student who gladly took over this role.

I have fond memories of some truly hysterical prayers given by overly earnest students during junior college football games in East Texas. I remember smiles all around.
2.27.2006 10:28am
Duncan Frissell (mail):
I'm assuming that the author will be comparing apples and apples and will concentrate on similar cases of individual plaintiffs seeking to sacrifice chickens vs. individual plaintiffs seeking to not rent to lewd cohabitants. In both cases the imposition comes from the regulations since the individuals are private citizens and not governments.

I llok forward to the series.
2.27.2006 10:36am
David M. (mail):
I think that part of the disadvantage, assuming that there is one, comes from most juries having a majority of Christians but of different beliefs. It may be difficult for Christians to sympathize with one another over a point where their beliefs conflict.

Sort of a "Wait, I'm a Christian, and X doesn't affront my faith. Why should it bother you?" approach. For example, I was Catholic as a child, and had friends of other Christian denominations. For the most part, our beliefs were similar, but some of the differences seemed, well, we'll say 'easy to criticize'. Maybe not understanding the bulk of another's faith makes it easier to allow for differences.
2.27.2006 10:43am
MikeWDC (mail):
Hopefully Prof. Sisk will provide some evidence for "the enduring myth," "conventional wisdom," and "the popular narrative." He must have lots of examples of people stating this.
2.27.2006 11:06am
Bob Bobstein (mail):
Duncan Frissell: "concentrate on similar cases of individual plaintiffs seeking to sacrifice chickens vs. individual plaintiffs seeking to not rent to lewd cohabitants."

Frankly, I didn't realize that anyone here at the VC was a PETA person who thinks that the rights of a chicken deserve equal consideration with the rights of a renter. It's not a popular view, but I'm glad to see there's someone here willing to defend it-- should make for interesting discussion.
2.27.2006 11:06am
What about the very definition of religion? Scientology claims to be a religion, but seems to be mostly about taking people's money and telling them psychiatrists are evil CIA dupes. What if a defendant refuses psychiatric evaluation on "religious" grounds and claims the only way he can become fit for trial is through lots of government-sponsored Scientology auditing?
2.27.2006 11:15am
Dave Hardy (mail) (www):
If the major component of the establishment clause's purpose is to prevent one religion from, well, taking over, then it would stand to reason that a court looking at a case would (consciously or subconsciously) cut more slack to a religion with a handful of adherents than it would to one with many.

Hmm--the est. clause might be an interesting study in terms of originalism or originalism plus. That is to say, it's an area where (excuse use of so general a term, on a "you know what I mean" basis) liberals fully approve an originalist understanding (or want to push it to its limits) despite the fact that its purposes are really not in play in the modern world. That is -- Americans are so pluralist in a religious sense, with probably a majority being rather indifferent in a practical sense, that there would be absolutely zero chance of any religion taking over even if there were no establishment clause. So the fights tend to be over periphral, and often purely symbolic, issues -- is it OK to have "in God we trust" on the currency, or a reference in the pledge to the flag, or school vouchers that can be (at the recipients' free choice) in a religious school?

If you compare the issues here to those arising under, say, freedom of speech and press (campaign issues, libel suits, etc.) or fourth amendment, well -- they're rather nit-picky things.
2.27.2006 11:17am
M.E.Butler (mail):
A preliminary note (before reading Prof. Sisk's article)--a line of inquiry that may examine a more practical effect of government action on religious practice may be land use decisions. Zoning boards may well have a more significant effect on believers' ability to worship communally than the police arresting those using hallucinogens or sacrificing goats or chickens. I have heard that in those cases the data show a decided bias against non-mainline religions. Is that true?
2.27.2006 11:18am
Interesting. A cursory overview of the article doesn't reveal any gaping flaws in Professor Sisk's approach other than the fact that there's no really good way to control for the differences between the cases brought by Christians and those brought by non-Christians, which isn't his fault. I am concerned about his objectivity, since "traditional religions" vs. "minority religions" is a highly biased way of phrasing the distinction he's getting at. I understand that he's not saying "Christians" and "non-Christians" so he doesn't have to take a stand on whether Mormons, Jehovah's Witnesses, Quakers, etc. are Christians, but aren't there some thousands of years of tradition behind Judaism and 1400 years of tradition behind Islam? Haven't there been Jews in this country since it was founded? How much more traditional can you get?
2.27.2006 11:23am
MikeWDC (mail):
Looking at the article, he does cite several persons writing in scholarly articles regarding "conventional wisdom." However, I still don't think he provides enough context for his sweeping generalizations. Only four individuals are cited. Are these influential scholars? A handful of individuals illustrate a hypothesis, but do not argue this is a sweeping, widely held belief.

Furthermore, Prof. Sisk misquotes these individuals in reference to his thesis, one of them seriously. Sisk's abstract mentions "traditional Christian believers" and "traditionalist Christian faiths (my emphasis). Yet the three quotes in the body of the article only mention "Christians." One author quoted in a footnote, Stephen Feldman, explicitly draws a distinction between "members of small Christian sects [who] sometimes win and sometimes lose such free exercise claims, [while] non-Christian religious outsiders never win." You could evaluate that statement, but not with an empirical study of "traditional Christian faiths."

Again, I take no issue with his findings. In fact, my gut feeling is he is correct that "traditional Chrsitans" face greater obstacles in the courts. That's why take issue with his sweeping assertions.
2.27.2006 11:33am
byomtov (mail):
Without a clearer explanation of the cases Sisk examined it is impossible to understand whether his conclusion has any validity whatsoever. He provides some categories, but no examples.

At least some religious cases might not be relevant to Sisk's analysis. Consider Duncan Frissell's example of refusing to rent to "lewd cohabitants." Christianity is far from the only religion that proscribes "lewd cohabitation." The population of landlords who would prefer not to rent to such a couple on religious grounds is not uniformly Christian. That such a case is brought by a Christian is a consequence of the fact that Christians are a large majority in the US, not of this being a uniquely Christian position.
2.27.2006 11:43am
Duncan Frissell (mail):

There are plenty of people here who think that domitae naturae have no rights at all and that prospective renters have no rights vis-a-vis prospective landlords until their mutual undertakings have been reduced to an agreement.
2.27.2006 11:52am
His paper finds that non-Catholic, non-Baptist Christians have the same success rate as minority religions (except Muslims, which were less likely to succeed than the other groups).

After stating his finding of a lower success rate for Catholics and Baptists (and Muslims, which he dismisses with an "interesting, but I'll move on"), he concludes that secular liberal elites are the reason because Catholics and Baptists are most likely to challenge fundamental or otherwise widely accepted government activities, and lists social security and workers comp as examples.

I don't know much about this area of law, but generally speaking I would think challenges to wide-ranging and widely accepted government programs are less likely to succeed than other challenges. I wouldn't think losing such challenges is evidence of a secular liberal elitism so much as a general judicial unease with making such a ruling.
2.27.2006 11:55am
Anonymous Comment:
The "empirical" part of this article seems inadequate. I admire their coding and data collection efforts. But no discussion of error structure, endogeneity, misspecification, etc. in a 120+ page article? How 1990s.
2.27.2006 12:20pm
Anderson (mail) (www):
he concludes that secular liberal elites are the reason because Catholics and Baptists are most likely to challenge fundamental or otherwise widely accepted government activities, and lists social security and workers comp as examples.

Wow, that sounds like it wasn't at all the answer he was expecting when he went in, doesn't it?
2.27.2006 12:36pm
Anderson - thanks for chuckle.
2.27.2006 2:20pm
Ben Goff (mail):
A high failure rate at trial indicates the attorneys made a mistake as to the existing law. This could mean that the clients are more aggressive in seeking to impose their views and can afford failure. The three religions mentioned Catholics, Baptists, and Muslims have in common a reputation of being intolerant or what some people have described as a holier than thou attitude. This blog topic should be a great place to examine religious prejudice something most people don't talk about or perhaps that was the purpose.
2.28.2006 5:00pm