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[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.

Richard Bellamy (mail):

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.


Isn't the obvious answer here that anyone who, by definition, is mainstream don't need as many "weird" accomodations?

If my religion requires me to take the week off between Christmas and New Years -- no problem. I'd probably have been the only one at school or in the office anyway.

If my religious sect requires me to miss an entire week in late September every year to go live in the desert in the Middle East for a very-literal interpretation of the requirements of holiday of Succot, maybe the courts will be divided on that right. But it will at least come before the courts.

Most of the accomodations for Traditionalist Christians are built-in, and would never come before the court at all.
2.27.2006 11:34am
HankP (mail):
Mr. Bellamy is correct, and unless you list what specific accomodations are being sought your statistical analysis is meaningless. For example, I know of no drug related accomodation requests for mainline churches, yet we saw the resolution last week of one for a (very) minority religion in the Southwest.
2.27.2006 11:39am
Gordo:
Another potential reason: the cases where Catholics or Bapitsts lose are those where they are trying to impose a uniform religious activity because they are in the majority. For example: the Santa Fe School District case where the Supreme Court struck down graduation prayers.

Just a thought.
2.27.2006 11:41am
Steve:
I think our system of government was quite intentionally designed to have a majoritarian legislative branch and an independent judiciary that would serve as a check on minority abuses. If minority groups who are disfavored elsewhere didn't do relatively better before the judiciary, I'd say something must have gone very wrong.
2.27.2006 11:43am
Public_Defender:
I think the author mischaracterizes conservative Baptists as traditionalists. See fn 73 of the article Volokh cites.
Over the last 30-40 years, Southern Baptists have departed from the Baptist tradition of separation of church and state which dates back to the 17th Century.

Over the last century, they've also added arguments against abortion that reflect modern conservative thought, not Baptist tradition.

By requiring loyalty oaths, Southern Baptists have departed from the tradition according autonomy to local congregations.
While the Southern Baptist leadership is as entitled to their opinions, members of the "more liberal" wing of Baptist church (American Baptists) are the true "traditional Baptists."

Maybe instead of using the word "traditional," which requires the author to pick sides in intra-faith squabbles, the author should have just said "conservative" or "right wing."
2.27.2006 11:44am
Henry Bramlet (mail):
Prof Sisk,

Your findings feel accurate to me. And the part of me that is sympathetic with religious freedom thinks that you really have uncovered a double standard. However, the devil's-advocate part of me wonders if what you have uncovered isn't the correction of a double standard. Can you control for that?

That is, it may be that our sensitivities about being a Christian majority have lead us to treat Christian-centered cases with a bit more skepticism, while we have gone out of our way to give extra lenience to the "underdogs". However, the oposite could be true: that traditionally, Christian Freedoms have enjoyed more leniancy than should be, and the last 20 years have seen the courts correcting this leniancy.

Do you have any thoughts about that?
2.27.2006 11:46am
finec:

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).

Better get some Catholics on the Supreme Court, then.

Seriously, though, Richard's point here is apt -- it is pretty hard to argue that this is anything close to an experiment.
2.27.2006 11:46am
SLS 1L:
Professor Sisk - I'd be interested in hearing you further describe your distinction between "traditional" and "minority" religions and what your theoretical reason is for making that distinction, rather than another one. For example, I suspect you include the fundamentalist brand of evangelical Christianity as a "traditional" religion, even though it is a relatively modern phenomenon, but call Judaism and Quakerism as "minority" religions. Judaism is a "minority" religion, but it also has several thousand years of tradition behind it and has been present in the U.S. since the founding of the Republic. The Quakers are also a minority, but they founded Pennsylvania and are implicitly recognized in the Constitution by its decision to allow affirmations rather than oaths. Quakers were opposed to the taking of oaths. Or, if you consider Quakers a "traditional" religion, why them and not Jews?
2.27.2006 11:55am
In the majority:
When you own 90 percent of town and the courts are rebuffing your efforts to claim the remaining 10 percent, you cannot be heard to complain that you suffer judicial disfavor.
2.27.2006 12:02pm
anonymous22:
Prof. Sisk's scholarship is utterly question-begging. The main premise is that all religions should win an equal percentage of time in federal court. With due respect, there is no way that this proposition can be empirically established. The Constitution nowhere mandates equal percentage outcomes of success on religious liberty claims. You would have to show disparities within the same federal circuit on the exact same type of religious liberty claim-- and in that case the sample sizes would almost certainly be too small to prove anything. This seems to me as unscientific as "empirical" studies purporting to show that a certain justice is racist because he only voted x number of times in favor of minority plaintiffs. Law is not about whose ox is being gored, no matter how much liberals may try to import their interest-group political model to the courts.
2.27.2006 12:20pm
finec:

I looked at Sisk's solo paper (not the other one) and found this statement, which addresses Bellamy's (and others') critiques.

The burden of proof plainly would lie with the researcher who might suggest that these particular religious claimants are more likely than members of other religious groups to interject substandard and flawed legal claims into the courts.

In other words, you might be right, but you have to prove it.

No, dude, that's not how it works.

I hope that this statement does not reflect the quality of mainstream empirical law research. Endogeneity is the first thing that pops into any economist's head in this setting, and differential legal merit of the cases across religions is a likely source of problems. I would love to be able to cast aside alternative explanations as nonchalantly as Sisk does in my work. But I would be laughed at.
2.27.2006 12:26pm
Anderson (mail) (www):
Hopefully, Sisk will address these rather obvious criticisms (I made the same point last thread, so it's not a diss).

But Finec's quotation is pretty disheartening, &I hope it's taken out of context or something. (Work isn't permitting me to take time out to read the articles.)
2.27.2006 12:32pm
Marcus1 (mail) (www):
>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.<

With respect, I think you misstate conventional wisdom. The conventional wisdom I am familiar with is that the courts are a bunch of atheists and secularists who are openly hostile to religion of any kind. I could point to many many people who take this view very loudly and openly. The man on the street, I would suggest, is much more likely to hold this view than either of the views you describe.

The views you describe, I have virtually never heard of, with possibly two exceptions: 1. Atheists are said to be disfavored in child custody proceedings and 2. Some courts have been dismissive toward the medical claims of Scientologists. These views are hardly widely held, however, nor are they remotely as loud or common as the conservative court-bashing view.

Of course, if it turns out that Christians are discriminated against in court, this could still be interesting. The idea that this would counter any conventional wisdom, however, is to play the victim card a bit too boldly.

At the outset, though, it seems a bit strange to start from the assumption that members of a majority religion should be granted an equal number of accomodations as members of a minority religion, as others have pointed out. When the political process is dominated by Christians, it would be rather uncanny if Christians had just as many valid claims of religious discrimination as religious minorities.
2.27.2006 12:39pm
Public_Defender:
The article really proves nothing because it only scratches the surface of his data. I assume he will be sharing the raw data and his analysis methods with us during the week.

Even without any attempt of the professor to back up his assertions, his analysis looks suspect. His list of supposedly equalizing issues (p. 32) is skewed to the Right.

The Right is far more likely than the left to resist control of private education.

On public education, there has been a correctly-rejected push from the Right to turn science classes into religion classes. Right-wing Christians have been very aggressive in pushing as much government sponsored prayer and religious practice into school as they can. They should lose a lot of court cases. Traditionalist Christians (the ones in the center and Left) are less likely to try to push religion in school.

Right-wing churches are more likely to argue for a greater right to free expressions and fewer restrictions on government religion while traditionalist churches (the ones in the center and Left) are more likely to step back and not try to push the limits of the separation of church and state.

It will be interesting to see if the professor can back up his assertions with good data and unbiased analysis.

Professor Sisk's use of Right-wing terminology is not promising. He refers to Right-wing religions as "traditionalist" regardless of whether they follow or break traditions. He refers to those he disagrees with in government as "elites." That sounds more like Tom Delay talking points than scholarship.

My question is why it's so important for so many people on the Right to argue, "I'm a victim, too. I really, really am." Many on the Right (and I'm not saying, yet, that Professor Sisk is one) appear to envy Al Sharpton's ability to play the victim.
2.27.2006 12:42pm
AppSocRes (mail):
The near uniform pre-judgment of this issue in the above posts once again suggests that prejudice is one of the defining characteristics of self-identifying liberals in the contemporary United States.
2.27.2006 1:08pm
Dan28 (mail):
I'll wait to see the posts over the next couple of days, but so far this claim seems to be utterly outrageous from the perspective of social science. The fact that more claims by minority groups are successful than claims by traditional Christian groups is only relevant if the claims are generally similar. Common sense should tell you that the claims of "religious freedom" made by traditional Christians are not remotely similar to claims of "religious freedom" made by other groups. For example, traditional (white) Christians are not likely to have to sue for their right to drink wine at communion, but the Native American Chuch does have to sue for their right to use peyote. Why? Because this government was founded by Christians, which means that taking one mind altering substance as a religious ritual is seen as traditional, typical, "normal", while taking a different mind altering substance is not. If this nation were founded by followers of the Native American church, peyote would probably be sold in convenience stores and Christians might have to sue for their right to drink communion wine. Similarly, if this were a Muslim country, a woman wouldn't have to sue for her right to wear a burka for her drivers liscence; wearing a burka would be seen as normal for a woman. Instead, Christian women might have to sue for their right to not wear a burka on her drivers liscence.

Given the degree to which Christians are so unquestionably and universally allowed to practice their religion without public interference, it's hard to imagine what you even mean by "religious freedom claims made by [Catholics or Baptists]". Off the top of my head, I can think of three possible claims of "religious freedom" that you might be referring to. One is the 'right' to have publically sponsored prayer in school. One is the 'right' to use public funding to create religious monuments. The third is the 'right' of liscenced pharmacists to refuse to fill prescriptions if they violate their religious beliefs while remaining liscenced pharmacists. None of these claims are actual rights and all of them violate the establishment clause (well, maybe not the third but I don't believe the birth control claim is valid for other reasons).

In essence, your pseudo-scientific study looks like it is comparing claims by minority groups to be free from government interference in the basic fundamental practice of their religion with claims by the dominant group to be able to publically impose their religion on others.

Now, if you compared similar claims by minority groups and dominant groups, then you might have something. For example, if Muslim teachers win the right to lead prayer groups in public school while Catholic groups do not, then that might be a legitimate concern (in fact, it would be a violation of the Constitution). I would hope that your next few posts will have similar such comparisons with actual relevance. Because this first post, as stated, is manipulative dogrel.
2.27.2006 1:11pm
Sydney Carton (www):
One significant case that I remember of recent vintage was a California case involving the provision of medical services to employees. I recall the Catholic Church objected to the law because its charitable organizations would be required to provide abortion services to its employees, something that violates Catholic doctrine. The law included an exception for religious organizations. The question at issue was whether the charities organized by the Catholic church, as well as its schools and other groups, which for purposes of corporate law were separate entities from its parishes and churches, counted as religious organizations under the law.

The court gave no such deference to the Catholic church in that case. It essentially said: "your religious organizations are not religious."

Here's a link to an old news article about it:
2.27.2006 1:12pm
Sydney Carton (www):
Link was dropped from my earlier post. Here it is again:

Court Says Catholic Church must provide bith control
2.27.2006 1:14pm
Dan28 (mail):
Sydney,

Perfect example. The law says that all employers must include contraceptives in their health insurance for employees. The Catholic Church sues for their right to be an exception to that rule. Could you imagine a group of Orthodox Jews even considering that lawsuit? Orthodox Jews don't sue over the state's right to prevent them from imposing their sexual morality on employees. They have more important shit to deal with, defending positions that are actually essential to their faith. That's why they win more of their claims. Their claims have more merit.
2.27.2006 1:26pm
Stephen C. Carlson (www):
Is it always possible to tell from which Protestant demonination or even which type of Baptist organization the litigant comes from? There is quite a bit of diversity among Baptists, ranging from Southern Baptists to African-American Baptists.

Thus, how certain are we that the "General Christian" categories does not include Baptists? If we're not so certain, do the different kinds of Baptists have differential rates of self-identifying as Baptist rather than general Christian?
2.27.2006 1:26pm
Preferred Customer:

The near uniform pre-judgment of this issue in the above posts once again suggests that prejudice is one of the defining characteristics of self-identifying liberals in the contemporary United States.


Hmm. How many of the posters in this thread are "self-identifying" liberals? I have no idea, but no one has identified themselves as such here.
2.27.2006 1:35pm
Bob Bobstein (mail):
Sisk reads like a conservative version of a cartoon liberal. He chalks up legal doctrines he doesn't like to "historical roots" poisoned by then-common practices of discrimination, without even acknowledging non-discriminatory justifications for them. He treats those who challenge his empirical claims as though they might be bigots. He seems to think that equality of treatment demands equality of outcome, as though there is no such thing as legal merit.

Sisk appears to be primarily concerned with the right of conservative (not traditional, as has been pointed out) religious groups to discriminate against others. There are intellectually plausible ways to defend these views, of course, but I don't see them in this paper. Sisk writes, for example, about religious institutions seeking exceptions to employment discrimination laws and labor bargaining laws, and hospitals seeking to retain subsidies despite a refusal to provide abortion-related medical training. The problem is, he chalks up their legal setbacks to the fact that they "are especially likely to come up against central, might we say, 'sacred,' features of the modern secular legal regime." He fails to even acknowledge that these claims directly, negatively implicate the prerogatives of others, unlike, say, the claims of the tea-drinkers. Also, he says that these claims run against the grain of the modern legal regime; that seems another way of saying that these claims are not entitled to prevail under the law.

I hope that courts "discriminate" against religious conservatives who make claims contrary to the law, just as I hope they "discriminate" against African Americans seeking reparations without grounding in the law. Perhaps for Sisk's next project, he can determine if courts discriminate against African-American plaintiffs who bring suits seeking reparations.

Finec's post above makes an important point-- Sisk refuses to consider endogeneity. Sisk is actually on worse footing that finec acknowledges: Sisk treats researchers who ask him about it as though they may be harboring a secret prejudice against politically conservative religious groups. (at 1054: "to the extent that the evaluation of the strength of religious liberty claims on the merits turns more directly upon the nature of claims being asserted by Catholics and Baptists, that appraisal may shade into little more than a subjective aversion to the cultural values expressed by [politically conservative] religionists.")

As Dan28 points out, because Christians founded this country and make up like 80% of it, most Christians, unlike most members of minority sects, don't need to go to the courts. Plus, Christians that do are more likely to be seeking either a subsidy or the right to infringe on the prerogatives of others. Minority sects are more likely to be seeking an exception to the criminalization of something their religion directs them to do. Maybe it turns out not to differently in practice; but Sisk's research doesn't tell us.

Between the lines, Sisk implies that he wants new exceptions carved out for politically conservative religious groups to be permitted to discriminate against others. That is indeed a plausible argument. He should make it. His empirical argument concerning discrimination, though, generates zero in the way of empirical understanding (though it does make for good conservative talking points material).
2.27.2006 1:37pm
Bob Bobstein (mail):
For the sake of accuracy... Sisk also seems to favor the right of politically conservative religious groups to receive subsidies despite nonconformity with generally applicable laws, along with favoring the right of politically conservative religious people and groups to be permitted to discriminate against others, as I wrote in the last para above.
2.27.2006 1:41pm
Marcus1 (mail) (www):
As far as I can tell, the argument is as follows:

Courts tend to side less with members of the religious majority claiming that they are being discriminated against than courts side with religious minorities making the same claim.

And I guess the burden of proof is on me to show that religious majorities tend to discriminate more against religious minorities than they tend to discriminate against themselves...
2.27.2006 2:01pm
Sydney Carton (www):
Dan,

If you read the news article I linked to, you'll see that the law was drafted specificially to require that Catholic employers provide birth control benefits. They had not been doing so in the past because it was against their religious principals. The law included a narrow exception that excluded certain religious organizations. The Catholic Church objected on the definition of religious organization, saying it was drafted in such a way that necessarily tramples on 1st Amendment freedoms.

I don't think it's a bad claim to suggest that a legislature overstepped in defining what is, and is not, a religious organization, specifically with the intent to require Catholic-linked charities to provide abortion services. It doesn't matter what an Orthodox Jewish group would do, because to the Catholic Church this fight is very much based on defending positions important to their faith.

Oh, and by the way, as a result, I think all Catholic entities in California dropped prescription drug coverage. So the law didn't even benefit the people intended.

There's a similar fight brewing up in Massachusetts, which may require adoption agencies to allow gay adoptions. Catholic-organized adoption agencies are forbidden from doing this. Right now, it's still playing out in the legislature (where the Catholic church will probably lose). And then it'll play out in the courts, where it'll lose again.

It's really only a matter of time before they start sending Bishops to jail on the basis of their refusal to submit to such unjust laws.
2.27.2006 2:12pm
rick:
I just want to point out that Prof. Sisk isn't even arguing that all Christians aren't as successful in courts as "minority" religions - his "General Christian" category has the same rate of success. Only Catholics and Baptists are less successful . . . and Muslims, which doesn't fit into his thesis so he ignores it.
2.27.2006 2:25pm
finec:

I think we should disregard Sisk (2005) as being a serious attempt to answer the questions it raises. Nonetheless, the questions are important.

It would be nice if we could get people to at least agree on a hypothetical experiment that would resolve the question of religious bias in the legal process.

1. Take comparable cases (of equivalent merit) in which participants are from different religions

2. Submit them in the same venue, with comparable judges/juries

3. Observe the outcomes

Tough question: what constitutes "comparable cases"? Is such a concept possible, even in theory? (In other words, can we even agree on a hypothetical experiment that would measure bias?)

A separate question: if as a result of this experiment we do observe different outcomes in this experiment, is the measured bias justified under any circumstances?
2.27.2006 2:27pm
Public_Defender:
Dan28,

Like you, I find the pharmacists' suits interesting. If pharmacists can take jobs that they're not willing to do based on religious beliefs, maybe I should start applying for openings in the felony and death penalty divisions of prosecutors' offices.

I'm religiously opposed to the death penalty. By the pharmacists' logic, I should be entitled to a prosecutor's pay check while refusing to do my job based on my religious beliefs. If I filed and lost that suit in a reported opinion, would that be evidence of bias against traditional Christians? I hope not.

This example explains why the model needs to judge the merits of the lawsuits.

(I say "traditional Christians" because I believe that the mainline churches are the traditional ones; conservative churches are the ones departing from "tradition.")
2.27.2006 2:45pm
Gordo:
Sydney: Thank you for providing an actual example. I wonder how many of the cases Professor Sisk evaluates are as clear-cut?

The only matter in your example that gives me pause is that in some communities the Catholic Church controls the only hospital in town. If it were to suddenly refuse to allow tube-tying, women desiring that service would be excluded from any choice in the matter. I don't know if this would trump the Catholic Church's moral precepts, but it's worth pondering.
2.27.2006 2:49pm
eponymous coward (mail):
I'm surprised Sisk doesn't make the argument that Muslims fit in the category of a 'traditionalist" religion. The similarities with Catholicism and fundamentalist Baptist aren't TOO far-fetched.

And yeah, the piece is cartoonish, with oodles of references to "liberal elites" controlling the legal system. Funny how that's managed to happen when we're in a 40 year stretch where Republicans have had the Presidency (and thus the initiative to nominate federal judges) 70% of the time. God, conservatives spend a lot of their time whining, don't they?
2.27.2006 2:53pm
rick:
Just to finish the point and tie it to many of the comments already posted here - Gordo's point would be exactly why many "mainstream" or majority religious viewpoints would be less likely to be successful in a variety of areas. In that case, the Catholic Church is one of the view with the influence and cash to run full-scale hospitals, which is a good thing, but as such they face more government-imposed restrictions.
2.27.2006 2:53pm
rick:
Meant to say the "Catholic Church is one of the few", not view.
2.27.2006 2:54pm
Kevin L. Connors (mail) (www):
My initial reaction is that those of nominally "Christian" faiths are more a target currently, because the practices of other religions, with the secular state have found abhorrent, have already been adequately circumscribed by the courts.

But I find this most interesting, and will follow your posts "religiously".
2.27.2006 3:03pm
Marcus1 (mail) (www):
My theory is that American Christians tend to be overly litigious. As evidence, I submit Prof. Sisk's numbers. Of all other possible correlations, the most powerful one relating to the tendency to bring unsuccesful religious freedom cases is the religion of the claimant.

Who brings the most faulty cases? Baptists and Catholics. I guess this puts to rest the myth of the overly-litigious atheist...
2.27.2006 3:14pm
SLS 1L:
Or, to add to my earlier point, what makes fundamentalism (a 19th century pheonomenon) any more traditional than Mormonism (also a 19th century phenomenon)?
2.27.2006 3:15pm
Richard Bellamy (mail):

In that case, the Catholic Church is one of the view with the influence and cash to run full-scale hospitals, which is a good thing, but as such they face more government-imposed restrictions.


I wonder what sort of success rate a Christian Scientist hospital would have if patients challenged all of the services it excluded on religious grounds!
2.27.2006 3:15pm
Anderson (mail) (www):
Guys, we *do* want Sisk to come back tomorrow! ;)
2.27.2006 3:19pm
Sydney Carton (www):
Gordo: "If it were to suddenly refuse to allow tube-tying, women desiring that service would be excluded from any choice in the matter."

Only to the extent that they were inhibited from traveling elsewhere to get it. I think a similar situation arose in New York City, which attempted to require all hospitals to perform abortion services. Then-Cardinal O'Connor threatened to close every Catholic hospital in the city. The politicians backed down.

Speaking from a Catholic perspective, I don't understand why politicians try to pass laws to coerce the Church into doing things it will never do. The Bishops are obligated to go to jail first, and they will. The Church will never submit to things like abortion. And if necessary, it will come to closure of hospitals and ending prescription drug coverage, as well as other things. I just don't understand who the heck these politicians think they're up against.
2.27.2006 3:47pm
BobN (mail):

There's a similar fight brewing up in Massachusetts, which may require adoption agencies to allow gay adoptions. Catholic-organized adoption agencies are forbidden from doing this. Right now, it's still playing out in the legislature (where the Catholic church will probably lose). And then it'll play out in the courts, where it'll lose again.


I suspect cases like this will figure into the series of articles. Let's hope the full story will be presented. In many cities, Catholic Charities (that's the name of a legal entity, by the way) has, over the last few decades, contracted with local government to run many "charitable" city services to the poor and disadvantaged. They made the argument (perhaps quite reasonably) that they were best able to run these programs (cheap, committed labor) and could do so better than city-run agencies. So they got the tax dollars and ran the programs according to the rules of the programs.

In the case you point out, this means that a Catholic-run charity has run adoption services in Boston for more than two decades. During that time, they HAVE arranged adoptions to same-sex couples. NOW, they don't want to anymore. Well, the truth is that the charity is perfectly happy to continue their practice... the Archbishop is the one who has suddenly developed a problem with the program. The groups board voted UNANIMOUSLY to continue the program as it has been run for years. No doubt the Archbishop will replace all 40-some of them with new board members more attuned to the "discrimination" he is experiencing.
2.27.2006 3:53pm
Gordo:
Sydney:
Speaking from a non-Catholic perspective, I am very happy to be living in a metropolitan area where one of the two major hospital groupings is not controlled by the Catholic Church.

I don't believe that Catholic hospitals (or Doctors, or Pharmacists for that matter) should be coerced into taking actions they believe are immoral.

I just believe that it is imperative for a city or metropolitan area's residents to have a choice in the matter. This means that each place should have secular health care providers in addition to the Catholics.

By the way, if I were the Director of Walgreens Pharmacies and I discovered one of my employees refused to fill a prescription on moral grounds, I would fire him and suggest he go work for an employer who met his high moral standards.
2.27.2006 3:57pm
rick:
So, in Sydney's example the Catholic church successfully used their power to continue the practice that was threatened.
2.27.2006 3:58pm
Gordo:
BobN: The answer to this problem is not forcing Catholic Charities to facilitate same-sex adoptions.

The answer is to fire Catholic Charities and find a new adoption services provider.
2.27.2006 3:58pm
AF:
I think someone should do a study on whether racial minorities or white people are more likely to win discrimination cases. If it turns out that racial minorities are more likely to win, they should interpret this to mean that our courts are biased against white people. And they should declare that although it is possible that racial minorities have more meritorious discrimination claims than white people, the burden of proof is on other researchers to show that.
2.27.2006 4:18pm
BobN (mail):
Gordo: Well, my "answer to the problem" would be for the Archbishop to concentrate on the real problems in his diocese, but that's just me.
2.27.2006 4:22pm
Angelique Z. (mail):
Some of you have touched on this, but I think it really is a key issue regarding his paper: I am not sure it is as relevant what kind of case it was (criminality, religious expression, etc). I think it is more relevant to know with these cases if the religious accomodation sought by the plantiff could be seen to cause harm or infringe on the rights of others. Certainly, cases like this are going to have more negative outcomes for the plantiffs. I really isn't fair to lump, say the private ceremonial use of peyote with tearing up a woman's perscription for the morning after pill. In the first case, the person is assuming his or her own risk. In the second case, the plantiff is forcing a woman to have an unwanted pregnancy. Courts have an obligation to balance the rights of all parties.
2.27.2006 4:43pm
BobN (mail):
Getting back to Sisk's introduction, I wonder if there's any empirical evidence showing a correlation of any sort between overuse of the word "empirical" and quality of scholarship...
2.27.2006 4:47pm
Sydney Carton (www):
Gordo: "I don't believe that Catholic hospitals (or Doctors, or Pharmacists for that matter) should be coerced into taking actions they believe are immoral... By the way, if I were the Director of Walgreens Pharmacies and I discovered one of my employees refused to fill a prescription on moral grounds, I would fire him and suggest he go work for an employer who met his high moral standards."

So you don't want to coerce Pharmacists. But you ask them to choose between their job or their morals. Consider me confused.

And also, aren't employers supposed to make reasonable accomodations for religious practices? Just get another employee to fill out the prescription. Right?

The news stories I've been reading about these prescription battles have little to do with real examples of people being denied services, and everything to do with imposing an ideology or to force hardships on religious people who disagree. Before these new laws became an issue, employers who had pharmacists refusing to fill out prescriptions presumably had no problem with another employee doing it. Again, it's not a problem that private employers have, it's a problem that activists have and who are now trying to use the government to squash dissenters.
2.27.2006 5:28pm
Sydney Carton (www):
rick,

Yes, but Cardinal O'Connor didn't litigate. And in that instance, practicing faithful Catholics could probably be considered a minority in the court of public approval, especially in New York City when it comes to abortion politics.
2.27.2006 5:30pm
Montpellier:
Public_Defender: I think you're asking all the right questions here. My background is Chemistry - not the law - and so I have to say that this crypto/histo-graphic study doesn't do a good job of characterizing the types of 'discrimination' or 'accomodation' cases being brought.

I'm sure there's a legal term for it that I'm ignorant of, but I've got a concept here of competing interests - I'd call it a 'Lockean social contract' (probably an equally ignorant mischaracterization of Locke) - where liberty interests of some individuals conflict with others - the degree to which the liberty interest of one group intrudes on the other.

My impression is that any reasonable analysis needs to take this into account; that is: in each of these cases, to what extent is the challenged restriction (really, corresponding activity) an intrusion on others. In these religious liberty cases, my impression is that most of the religious majority cases deal with activities where the majority is seeking to impose an activity on others, rather than to seek liberty equal to that minority religions enjoy.

As Public_Defender notes, it's rare that the majority finds it's less intrusive (or even rather intrusive) activities limited - by virtue of being the majority. Mid-winter vacation is a perfect example - of course they don't need to bring suit to obtain this liberty - they're the majority and they've already got it! Another wonderful illustration is the recent ruling on Hoasaca(sp?) Tea: Christians don't really need to sue for the right to use Alcohol (from a scientific standpoint, a psychoactive and addictive drug with little more medical evidence for legitimate therapudic use than say, LSD, MDMA or marijuana) - the culture accepts it's use already, and that's reflected in it's legal treatment. Moreover, the use of the tea doesn't really intrude on the religious liberty of others.

The majority religious cases involve activities where they seek to impose their religious beliefs on others - either the notorious Roy Moore approach, or school prayer. I haven't heard of a case of attempted 'School Salaah' - even appropriately timed "minutes of silence" for muslims to pull out their prayer blankets.

This study reeks of meta/orthagonal analysis in an attempt to obfuscate the nature of the challenges. The Religous Right and other 'religious conservatives (self-appointed traditionalists)' (hat tip to Public_Defender again; if I'm ever in trouble, I'd like to call you - will you take private cases? ;-)) have engaged in a dubious approach where they attempt to claim that their individual religious liberties trump all other concerns, regardless of the intrusion on others, or, from what I gather of Sam Alito's analysis/theory, at least trump all others in cases where there is no equally vigorous attempt to intrude (ie, there must be an equally proselytizing force to balance against). This is just a way of permitting tyranny of the marjority where there are no sufficiently strong (numerically large - really pluralities) competing minorities - the exact situation were minority protection is most needed.
2.27.2006 5:51pm
Michelle Dulak Thomson (mail):
Anyone else remember the time, some years ago, when the city of San Francisco demanded that every organization contracting with the City to provide services must provide domestic-partner benefits? Including Catholic Charities and any other Catholic-affiliated relief organizations? Archbishop (now Cardinal) Levada had the perfect response: You can designate any one other person living in your own domicile to receive the equivalent of spousal benefits. It could be your gay partner, sure. But it could also be your mother, your sister, your college roommate, someone whose online rent-sharing ad you answered, &c.

Predictably, this made the people propounding the rule happy not at all. The point wasn't to get gay and lesbian couples benefits; it was to force the Catholic Church either to get out of the charity business altogether, or else be forced to recognize as legitimate relationships that it teaches aren't. Levada's solution, being much more generous than what the City demanded, couldn't be attacked as stingy, but it put gay couples on a par with all sorts of other relationships, many not even familial. Of course, it must also have cost the Church a hell of a lot of money.
2.27.2006 5:52pm
Michelle Dulak Thomson (mail):
May I just point out to everyone analogizing Communion wine to peyote that the chances of getting drunk taking Communion are calculable as roughly, oh, I don't know . . . zero? Sheesh. "Mind-altering" properties are decidely not the point.
2.27.2006 5:59pm
Preferred Customer:


Speaking from a Catholic perspective, I don't understand why politicians try to pass laws to coerce the Church into doing things it will never do. The Bishops are obligated to go to jail first, and they will. The Church will never submit to things like abortion. And if necessary, it will come to closure of hospitals and ending prescription drug coverage, as well as other things. I just don't understand who the heck these politicians think they're up against.


And this is why relying on religious organizations to provide services in lieu of the State (either explicitly or implicitly) is simply not good policy. It forces one or the other (or, more likely, both) to compromise--either the State does not get the service that its citizens have asked for, through their representatives, or the religious organization is forced to undertake services it would rather not undertake.
2.27.2006 6:03pm
BobN (mail):

Predictably, this made the people propounding the rule happy not at all. The point wasn't to get gay and lesbian couples benefits; it was to force the Catholic Church either to get out of the charity business altogether, or else be forced to recognize as legitimate relationships that it teaches aren't. Levada's solution, being much more generous than what the City demanded, couldn't be attacked as stingy, but it put gay couples on a par with all sorts of other relationships, many not even familial. Of course, it must also have cost the Church a hell of a lot of money.


More selective "memory". I live in SF and I don't remember gay rights groups being particularly unhappy that the archidiocese was able to accommodate the needs of ALL of its employees. That the Archbishop was able to do so while extending coverage to many previously excluded individuals like elderly parents, live-in extended family, dependent roomies, etc. actually pleased many liberals in the city, gay and straight, Catholic and non-Catholic. Levada's solution seemed quite, well.. Catholic. Imagine, extending coverage to family members... what a concept!!

The policy didn't cost the archdiocese much at all. MOST employees were either married (the one family member covered is the spouse) or were religious (sisters, priests, and monks). Very few of those had living situations which involved individuals who qualified for coverage.
2.27.2006 6:06pm
Matt22191 (mail):
Public_Defender,

"By the pharmacists' logic, I should be entitled to a prosecutor's pay check while refusing to do my job based on my religious beliefs."

Depending on which pharmacists you're referring to, I agree with you (for once). If it's a simple matter of private employers firing pharmacists who refuse to do their jobs, as defined by the employers, that's one thing. The market will sort it out, just as it sorts out employment for attorneys, like you, who don't want to prosecute capital cases. I have no problem with that system, and I don't support any law that prohibits pharmacies from firing employees for refusing to comply with the lawful conditions of their employment. An employee's right of conscience should not be superior to his employer's in the eyes of the law.

But that said, in some states (e.g., New Jersey) legislation has been introduced that would compel pharmacists to fill prescriptions despite their religious objections, potentially on pain of loss of their licenses. Note that it seemingly wouldn't matter that the pharmacy down the street the pharmacy down the street would be happy to fill the prescription (just as some lawyers are happy to step in and prosecute capital cases where you won't). That's like requiring all attorneys to prosecute death penalty cases regardless of any moral objections, or lose their licenses. Since you presumably wouldn't be comfortable with the latter situation, I presume you also don't support proposals like the one in New Jersey. Right?
2.27.2006 6:10pm
Dan28 (mail):
So you don't want to coerce Pharmacists. But you ask them to choose between their job or their morals.

If the law says that the pharmacist has to take birth control, that's a violation of his rights. And of course I would never expect a pro-life doctor to be required to perform an abortion (although one would hope he would choose a specialty in which this was not an impediment). But a pharmacist who won't provide birth control to other people? That person is doing far more than just expressing his personal moral objections. He's using his position of power and authority, granted to him by the goverment, to impose his sexual beliefs onto others. You signed up to practice medicine according to the standards of the profession. That includes the most basic kinds of professionalism, like respecting your clients and their personal decisions.

Anyone think a Muslim employee of a liquor store would file suit alleging that he had been unlawfully fired for refusing to serve alcohol? A Muslim is lucky if he is allowed to wear a turbin to work.

It's sad that Catholic adoption charties in Massachusetts might have to close because they care more about expressing objections to the sex life of others than they do for caring for needy children. But that's what you get when you take responsibly for a semi-public function like adoption: you are expected to understand that you are operating in a neutral sphere where all people have equal rights. It is depressing to see the relgious right taking such a hostile reaction, given the overwhelming importance of a neutral political sphere in a democracy. I would have thought the Catholic church had a better sense of moral priorities than that.
2.27.2006 6:12pm
BobN (mail):
I should also point out that since the services that Catholic Charities operates in SF are paid for by the citizens of San Francisco through the contract that the City has with the group, the policy cost the Archdiocese nothing.
2.27.2006 6:13pm
Gordo:
The problem, Sydney, surfaced in one of those isolated instances where the pharmacist's refusal to fill a prescription on moral grounds frustrated the medical purpose, if I'm not mistaken regarding a "momrning after pill" during late night weekend pharmacy hours.

If I were a Walgreens pharmacy manager, and I lost business because one of my pharmacists refused to fill a prescription on moral grounds (usually these pharmacies have only one pharmacist on duty, so the disaffected customer would probably go to another pharmacy down the street rather than to the Walgreens ten miles down the road), I would be perfectly justified in sending that pharmacist packing.
2.27.2006 6:18pm
C. Grammich (mail):
Professor Sisk,

You write,


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'm hoping, either in your discussion this week or when I finally have the chance to review your work, to see how you may have controlled for regional variation in the origin of your cases.

While Catholics are the largest, and "Baptists" (who, numerically, are predominantly Southern Baptists) the second largest, religious bodies in the United States, neither group (nor nearly any other religious group in the United States) is evenly distributed. For example, while Catholics are the largest group in the Northeast as well as much of the Midwest and Southwest, there are still relatively few of them in the South. Similarly, while Baptists are the largest group in the South, there are relatively few of them in the Northeast (and in some places, e.g., Utah, both are relatively few).

I would assume the political position, and the relative power of each group, varies as well by region, state, and even county. Put another way, while these groups may be the "insiders" or the "mainstream" nationwide, there are many places where they are not. Does this affect their success or failure in the cases you study?
2.27.2006 6:25pm
WB:
2 questions:

1. Is there a possibility of selection bias in the study?

By this, I mean that if you completely swallow the "myth" that you purport to debunk, then you'd believe that most of Christians' religion-based demands are met by society as a matter of course, while "minority" religion adherents don't have similar fortune. As such, the claims of "minority" adherents that show up in the courthouse are more likely to be reasonable, while the claims of Christians that require resolution by a court are more likely to be just the really wacky demands that society wouldn't otherwise recognize.

For example, Christian churches aren't routinely harassed by local authorities for serving wine at mass without having liquor licenses and without checking IDs to make sure that no one under 21 partakes. Indeed, it is routine for young children of less than half the legal drinking age to drink wine at church. But I know of no case (that's not to say that there isn't one) in which a Christian church had to go to court to seek an entitlement to do so. On the other hand, as the UGV case illustrates, non-mainstream religions that want to violate substance laws have a much rougher time of things. So, while the set of non-mainstream religions' claims are likely to include claims for the right to an exemption to substance laws, Christian claims are not likely to include such claims.

2. Similarly, is this not just another iteration of the question of whether affirmative action is unjustified "reverse racism" or an attempt to "level the playing field" to compensate for years of oppression? That is, considering that Christians and Jews (not in a "they own the media sense," but rather in a "I'm giving a nod to the frequent references to 'our Judeo-Christian heritage'" sense) have been in the dominant majority in our country for years, why shouldn't courts be more willing to recognize a request for accommodation from a member of an oppressed minority group than from a member of a dominant majority?

I recognize that #2 makes something of an arbitrary generalization and that "white," "jewish," and "christian" all involve the lumping together of subgroups, but if #2 is too much of a loaded question, I'm really much more interested in an answer to #1...

...if anyone's still reading at this point.
2.27.2006 6:38pm
Dan28 (mail):
May I just point out to everyone analogizing Communion wine to peyote that the chances of getting drunk taking Communion are calculable as roughly, oh, I don't know . . . zero? Sheesh. "Mind-altering" properties are decidely not the point.

Says the Native American state: While we recognize the sincerity of these peoples religious views, and understand that the risks of alcohol use probably do not apply to this particular religious ritual, nontheless the risk of diversion and use for recreational purposes are a compelling government interest in enforcing the ban. Alcohol is a dangrous drug, that has been definitively linked by the (Native American) DEA to violence, a litany of health problems, flagerantly antisocial behavior, and the risk of immediate death. As such, we cannot permit exceptions to this general rule, as regrettable as the restriction on religious freedom may be.
2.27.2006 6:56pm
WB:
I agree with Dan. There are flaws in the analogy, but afaik it's not a defense to most underage drinking laws to say that the minor wasn't going to consume enough to be impaired.
2.27.2006 7:10pm
Montpellier:
Dan28: beautiful. That's like a perfect paraphrasing of the DEA's argument - just changing the names. Scalia himself would be proud of the tone such a manouever strikes!
2.27.2006 7:50pm
Michelle Dulak Thomson (mail):
BobN,

Oh, I don't know. I was here, and working in SF at the time, and the vibe I received was one of major pissed-off-ness. There were certainly pissy Op-Ed pieces in the Chron and the alternative weeklies. Let's just say that an outcome in which the Catholic Church looked more generous and open-minded than any other organization in the city was not what the SF policy was intended to bring about.

And I doubt very much that "the policy cost the Archdiocese nothing." Did complying with it cost no one anything?
2.27.2006 8:30pm
byomtov (mail):
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.

One plausible reason is that society already accommodates their religious practices to a very large extent, so their appeals for help from the courts are quite likely to be more extreme than those of adherents to minority religions.

Whether that's right or not (and I personally think it's a part of the story) it's surely a very reasonable hypothesis. I don't see how your study addresses it. I hope you intend to discuss this point.
2.27.2006 11:04pm
Public_Defender:
Matt22191 writes:
That's like requiring all attorneys to prosecute death penalty cases regardless of any moral objections, or lose their licenses. Since you presumably wouldn't be comfortable with the latter situation, I presume you also don't support proposals like the one in New Jersey. Right
Interesting point. It's generally useful to switch the ideological tables on a legal question. It keeps everyone a little more honest.

If you follow the rule that generally applicable laws appy to religious people, too, I could legally be required to prosecute a death penalty case (why anyone would want me to prosecute a death penalty case is beyond me).

Within legal ethics, there is a complicated balancing act between the conscience of the attorney and the right of everyone to a lawyer to argue their case. The fewer lawyers available, the more a lawyer is expected to be flexible.

Applying this to pharmacists, I don't see a huge problem if a pharmacist in, say, New York City to denies a prescription based on religious belief. The market can take care of that. But if a pharmacist is the only one in a 50 mile radius, that's another question.

I also don't think that big companies like WalMart who make business decisions to avoid boycotts should be treated the same as individual pharmacists who make decisions based on conscience.

Instead of compelling individual pharmacists to carry needed drugs, maybe the state or federal government (or a liberal non-profit) should create a 1-800 number and commit to quickly delivering the drugs to people too far from a pharmacist.
2.28.2006 5:13am
Ryan Waxx (mail):
Amazing.

I agree that more information is needed, yet few here apparently realizes that their knee-jerk liberal outrage at the challenging of their convertional wisdom of the 'oppressed minority' would have them take completely unsupportable positions.

Instead of data against data, we have wild counterclaims which are uncontestably less supported than Sisk's analysis:

* Catholics are trying to impose uniform religious activities, whereas 'minority' religions are not. (No proof provided)

* Christians have had too much freedom, and the courts are simply correcting this oversight.(No proof)

* Christians "own 90 percent of town" and are trying to use the courts to claim the other 10%(No proof).

* (Minority religions') claims have more merit. (No proof)

* Christians don't need the protection of the courts.(No Proof)

* Christians spend a lot of their time whining.(No Proof)

* Unsuccesful Christian claims are outright proof that the claims were invalid. (No Proof)

Of course, I don't expect you to look at the above and admit you are a pack of bigots. After all, those who thought the Negro was inferior and sub-human thought their views were well-justified by science. And just like those who decry the Jews as malevolent and all-powerful do today - also while denying their bigotry.

But perhaps, you can look at the below and have a look in the mirror at just how foaming-at-the-mouth insane you appear:

I can grant that for some of the more reasonable rebuttals to Sisk's argument, you might expect a moderatly higher purportion of Catholic and/or Baptist claims to be rejected.

But do you realize, that by summarily dismissing Sisk's analysis when you far less data on your own hands, that you are implicitly claiming that only 5% of Baptist court cases are valid, and only 1% of Catholic ones are vaild?

Read the above again. And understand the howling extremism of your claims. How you can just blindly accept that, with no proof whatsoever except your 'conventional wisdom' - is mind-boggling and can only be explained by a prejudice bordering on dementia.
2.28.2006 5:26am
Public_Defender:
I guess it would be rude to say that assuming Sisk to be correct without seeing his data "is mind-boggling and can only be explained by a prejudice bordering on dementia."

Sisk hasn't proven anything, yet. Not even the 5% and 1% figures (which are based on 11 to 21 year old data). He needs to list every case that's part of his data set (or that he considered putting in his data set) and explain exactly why he coded the case the way he did. Maybe he's released that data somewhere (my guess is that he has), but it's not in the articles linked so far.

I think Sisk improperly excluded procedural rulings from his survey. He said he excluded cases that weren't based on religious arguments. But if there's a bias, that bias would also show up in rulings on standing, evidentiary issues, the statute of limitations, and the like. What happens when those cases are included?

The radical shift in the courts over the last 10 years also makes his data much less relevant to the courts today. Some judicial views that are mainstream today were radical thoughts during the time of his study. Some judicial views that were mainstream 21 years ago would be radical today.

Sisk's use of Tom-Delay-style speaking point terms makes it imperitive to see his data. He calls right wing religions "traditionalist" regardless of whether the religions are actually traditional yet refuses to call traditional center and center-left churches "traditional." He also uses the same cultural "elites" rhetoric as right-wing politicians.

Finally, anyone who doesn't think there's a culture of victimhood in parts of the conservative movement (including the relgious conservative movement) isn't paying attention. The fact that Sisk would devote a good part of his career to establishing conservative victimhood is evidence of that culture.
2.28.2006 8:06am
C. Grammich:

He calls right wing religions "traditionalist" regardless of whether the religions are actually traditional yet refuses to call traditional center and center-left churches "traditional."


Public_Defender, how do you define "traditionalist, right wing" religions defined? Are you conflating political and theological classifications?

The Catholic Church, to cite just one example that Sisk listed as a "traditionalist" church, opposes the Iraq War, generally supports workers' rights to organize unions, and generally favors public funding of health services. There is, I suspect, a pluralism of views in other "traditionalist" and even "center" and "center left" churches that would make conflating political and theological views a perilous exercise. (I haven't read Sisk's articles to note if he does so; does he?)
2.28.2006 9:52am
Bob Bobstein (mail):
Ryan Waxx-- I think the critics' point is that Sisk's study sheds little light on the issue. It just might be that courts are biased towards evangelicals and Catholics who invoke the Free Exercise and Establishment clauses. But Sisk refuses to determine the extent to which the claims he has catalogued might be legally weak, and regards those who even ask that question as though they might be bigots. This is akin to treating all opponents of affirmative action as though they could only possibly be driven by bigotry.

See finec's post above for what the critics here are saying. Sisk's study doesn't reveal much, but there are questions here worth asking.
2.28.2006 10:18am
SLS 1L:
He calls right wing religions "traditionalist" regardless of whether the religions are actually traditional yet refuses to call traditional center and center-left churches "traditional."
Not true. Hard to get much more right-wing than the Mormons, but they're not being coded as traditional; black Christian denominations are historically left-wing, but they still get coded as traditional. It seems he wanted to compare claims brought by Christians and those brought by non-Christians, but did't want to have to take a stand on whether Mormons and Jehovah's Witnesses were actually Christian, so he's stuck to this wishy-washy "traditional religion" language.

More troubling is the fact that he doesn't own up to it in the paper: he says not that he's comparing traditional Christianity with other religions, but if you expand to traditional religions it's hard to find a coherent explanation why fundamentalist Christians are traditional but Jews, Unitarians, etc. are not. If it's about bigotry, being treated as outsider, etc., then one also wonders why Catholics are being coded as "traditional" rather than "minority" given the long history of anti-Catholic bigotry and discrimination in this country.

Maybe he has some coherent theoretical justification; maybe he doesn't. But I want to know what it is.
2.28.2006 10:57am
Kevin L. Connors (mail) (www):
Me thinks Sydney Carton over-apraises the power of The (False) Church.
3.1.2006 4:37pm
kdonovan:
"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."

Given the centuries long Anglo-American tradition of using the law to suppress Catholicism and Nonconformist Protestantism, it is not surprising that these denominations would continue to fare worse in court.

Also, I think that large dissenting religions are more likely to fare worse from the elites than are small sects as the former are politically much more of a threat to elites than small minorities.
3.1.2006 6:50pm