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[Greg Sisk (guest-blogging), February 28, 2006 at 9:58am] Trackbacks
Explaining Why Traditionalist Christians are at a Disadvantage in Making Religious Liberty Claims in Court (Part One):

In yesterday's guest post, based upon our empirical study of a religious liberty cases in the federal courts, I reported that the conventional wisdom that members of minority religions are significantly less likely to secure a favorable hearing from judges in the modern era was found to be without support. 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, adherents to traditionalist Christian faiths, specifically Roman Catholics and Baptists, are the ones who enter the courthouse doors at a distinct disadvantage.

So why would those whose religious views are within the mainstream of American society be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices? That question provoked a plethora of vigorous comments yesterday, many of which suggested preferred answers or registered objections to the study. I am much comforted that these comments raised little that I had not already anticipated and planned to address in the coming days. Please be patient as the discussion unfolds a little more each day, eventually addressing most of these points in turn.

The simplest, if the most disturbing, explanation for the impaired litigation success of Catholics and Baptists would be that old-fashioned religious bigotry remains at work. To be sure, as several scholars have documented in recent years (Philip Hamburger, Thomas Berg, John Jeffries, James Ryan, Richard Garnett), the evolution of church-state doctrine in the courts historically was substantially influenced by cultural prejudices against the Catholic Church as an institution and Catholics as religious minorities in American society. At earlier points in American history, Baptists too suffered persecution in certain regions for their enthusiastic and evangelical religious practices.

However, despite the sobering lessons of history, the skeptical judicial audience encountered by Catholic and Baptist claimants in our study need not be understood in terms of ordinary bias. As common as it may be these days to assume malice on the part of others, I regard a charge of unthinking prejudice here as unfair and too simplistic.

A second and quite plausible explanation for the results in our study may be that the very fact of near-mainstream status works against a successful request for accommodation. Judges may consciously or subconsciously conclude that followers of those religious traditions are capable of effectively participating in the political process and thus are neither in need nor deserving of protection through judicial intervention from the results of that political process. Indeed, confirming that such assumptions are widespread, some of yesterday's comments insisted upon this explanation.

Similarly, because Catholics and Baptists are perceived by judges as having been fully acculturated into American society, individuals from such religious traditions may not be taken as seriously when asserting a conflict between their religious values and a government directive. As Michael McConnell has argued, judges may be unwilling to believe that "ordinary Americans" from mainstream religious groups "might entertain religious convictions that are out of the ordinary." Thus, judges may assume that no mainstream religious believer need seriously fear meaningful repression by majoritarian government or serious burdens on religious conscience.

If this indeed explains the results in part, I submit this would be unfortunate and unjust. Presuming to treat a purportedly mainstream religion with less solicitude because of its supposed political strengths ignores the fact in our pluralist society that what constitutes the conventional in one region of the country may fall well outside of the norm in another. Tom Berg writes (link) that "in many places and institutions in the nation, evangelical Christians dominate culturally and politically and non-Christians constitute minorities," while "in many other places and institutions, and on certain issues, traditionalist Christians join traditionalist Orthodox Jews as the outsiders." (And, as suggested by some comments, yes, we specifically controlled in our study for religious demographic factors in the deciding judge's locality.)

Tomorrow I'll explore an additional explanation, considering whether the impaired success of traditionalist believers in the court might best be understood as turning on fundamental conflicts about social values. On Thursday, I'll respond to several comments by addressing the suggestion that Catholics and Baptists lose in court because they should lose, that is, because their legal arguments simply are weaker.

Bob Bobstein (mail):
Prof. Sisk writes that majority status might work against these groups because "Judges may consciously or subconsciously conclude that [they] are neither in need nor deserving of protection," or because they "may not be taken as seriously" by judges who calculate that they are entitled to "less solicitude"

But differential outcome is not necessarily a result of judicial bias.

The most obvious explanation of differential outcomes is that followers of these religions need not go to the courts to get, as one commenter wrote last thread, to get Christmas off of work.

This leaves further-out claims for majority religions to make (and claims that infringe on the prerogatives of others, and claims that seek subsidies for religious activities that infringe on the prerogatives of others).

It is clear, in Sisk's rhetoric and framing of the issues, that he agrees with the political goals of the politically conservatives religious groups he is studying. He should make those arguments straightforwardly. His effort to claim oppressed minority status for these plaintiffs is weak and unscholarly.
2.28.2006 11:13am
Tbag (mail) (www):
Nicely said, Bob.
2.28.2006 11:17am
Senor Chumbawumba (mail):
I'm not sure it is unscholarly to have an agenda. If it were, there would be no scholars.
2.28.2006 11:18am
Justin (mail):
Professor Sisk, feel free to respond to the comments, which not only already postulized that point, but also made key rejections of it, in the posts to the previous comment.

I don't think that courts are pluralistic. Certainly our society is pluralistic, and our legislative theories. But we're a society of democratic majorities shielded by individual rights - the theories of indicudual rights being tightly wrapped in the concept of the protection of the minority (the theory basically boiling down to the fact that the majority can look after itself).

Thus, for you to say that courts should be pluralistic is essentially wrong. Courts are, as Rhode Island Chief Justice Frank Williams stated, "the last refuge of democracy." It is not simply an extension of that democracy.
2.28.2006 11:24am
Public_Defender:
Professor Sisk,

Is your raw data available? Can we see how you categorized each case, including the cases that you decided not to include because you think they were not decided on the merits?

And do you have any data that isn't 11-21 years old?

Finally, why do you insist on calling conservative faiths "traditionalist"? Why do you think they are any more "traditional" than the "mainline" churches?
2.28.2006 11:32am
Steve:
I think it is natural for every group within society to push at the margins, and to use the courts as an avenue to seek to expand those margins.

Groups that are given more accomodations by majoritarian bodies are likely to be pushing at a more ambitious set of margins. This is just logic.

Given that premise, it's not at all surprising that the more ambitious a claim is, the less chance it has in court. In fact, I'd be surprised if it were otherwise.
2.28.2006 11:48am
Clayton E. Cramer (mail) (www):

Finally, why do you insist on calling conservative faiths "traditionalist"? Why do you think they are any more "traditional" than the "mainline" churches?
Gay bishops in the Episcopalian Church aren't traditional. Argue for them if you want, but they aren't traditional. Similarly, gay marriage (which some of the mainline churches now support) is not traditional.

Clear enough?
2.28.2006 11:56am
Clayton E. Cramer (mail) (www):
Justin writes:

I don't think that courts are pluralistic. Certainly our society is pluralistic, and our legislative theories. But we're a society of democratic majorities shielded by individual rights - the theories of indicudual rights being tightly wrapped in the concept of the protection of the minority (the theory basically boiling down to the fact that the majority can look after itself).
The majority can look after itself except when the courts assert that an individual or minority right trumps majority will. Clearly, there are circumstances where this is right; the U.S. Constitution and the state constitutions all limit governmental authority even when the majority is clearly in favor of it.

Just as clearly, there are circumstances where the judiciary protecting a minority group from majority will would be contrary to the Constitution. As an example, if the courts decided that there was a constitutional right of adults to rape children, that would an example of the concept of minority rights run amok. (I hope, but do not assume, that all others here will agree with me on that.)

Between that extreme example, and the tyranny of the majority, there is no clear bright line. You won't find too many people (at least now) who would argue that the majority has a right to pass laws that enslave blacks.
2.28.2006 12:05pm
Public_Defender:
Cramer, your anti-gay position is clear, but you limit yourself to that one issue. Conservative churches also have "new" positions, like opposition to abortion. As I explained yesterday, as to Baptists, over the last 30-40 years, Southern Baptists have departed from many central Baptist traditions:
The Southern Baptists have departed from the tradition of separation of church and state which, for Baptists, dates back to the 17th 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."

Many Reform Rabbis will tell you that they believe they are adhering to Torah more than Orthodox Rabbis do. The Reform rabbis will say their teachings are rooted in teachings that are millennia old, while the Orthodox teachings are based in teachings that are merely centuries old.

Professor Sisk is inappropriately taking sides in intra-faith debates about which strain of a faith is more "traditional."
2.28.2006 12:10pm
DavidBernstein (mail):
Greg, I'd like to see a response to the claim that the disparity in outcomes is due to the fact that core religious beliefs and practicies of minority religions are far more likely to be infringed upon than core beliefs and practices of mainstream religions. E.g., no one is going to stop Catholics from using wine in sacraments, but they will pass laws preventing Native American religions from using their own versions of religius narcotics. Naturally, courts will be more sympathetic to claims from minority religious groups who could not defend themselves in the political marketplace than they will to more mainstream groups whose beliefs and practices are only being infringed upon at the marginss.
2.28.2006 12:23pm
Justin (mail):
"As an example, if the courts decided that there was a constitutional right of adults to rape children, that would an example of the concept of minority rights run amok."

Huh? Last time I checked, adults made 100% of the voting population. Now if children were allowed to rape adults....
2.28.2006 12:24pm
Justin (mail):
Needless to say, that's all off point: "The majority can look after itself except when the courts assert that an individual or minority right trumps majority will."

That doesn't help. If we re-evaluate Greg Sisk's theories in light of minority v. majority, all we find out is that the majority win rate isn't 50%, but something less than that. There doesn't seem to be any reason why 50% is the "correct" rate - one side being overly aggressive would change the rate quickly enough, and the costs built in to the public interest litigation model would alter the number as well. It's not like a civil suit for money, in which settlement drives the number to 50 percent.
2.28.2006 12:26pm
frankcross (mail):
I suspect the first post may explain the findings. There are two possibilities for these results. First, that the courts are somehow less favorable to mainstream religions. Second, that the cases brought by followers of mainstream religions are systematically weaker on the law.

There is good reason to think the second is true. First, the theoretical reason that mainstream religions are better able to protect themselves in the political process and less likely to suffer unfair restrictions. Second, the remarkably low number of challenges brought by mainstream religions (proportional to population) in this data. I think that fact has been overlooked and is very significant.

But Greg may have an explanation supporting the first theory, in his subsequent posts
2.28.2006 12:27pm
Justin (mail):
DBernstein, since we've not always agreed, I'd like to take the time to say that was an excellent and well thought out post, and more to the point than I have gotten in my posts. I appreciate that.

Also, I still haven't received your book - I'm looking forward to reading it. Did you mail that out yet?
2.28.2006 12:28pm
byomtov (mail):
I second Public_defender. Without looking at the actual cases it is impossible to evaluate these results.

There is an underlying assumption here that the merit of cases is independent of the religion of the plaintiffs, and therefore disparate results must be a consequence of their religion. But there is no evidence for this assumption.

As someone pointed out in another thread, Sisk's results could just as easily be read to suggest that court rulings are independent of the religion of the plaintiffs, and that the differing results stem from the fact that Catholics and Baptists bring weaker cases. Sisk has acknowledged this argument, but I don't see how he can address it without an examination of the cases.
2.28.2006 12:32pm
Hemingway:
Actually, the Southern Baptists haven't changed their position on separation of church and state very much. They've consistently supported the separation of church and state, but neither they nor any other Christian church of which I am aware have supported the ideas that religion has no place in public life or that a law is only proper/constitutional if it is based on secular premises. These letter two propositions are very much at odds with traditional Christian teaching (as well as the original understanding of the Constitution). It is because they have come into vogue over the course of the last 40-50 years that conservative Christian groups have become increasingly involved in politics as a matter of self-defense.
2.28.2006 12:43pm
Taimyoboi:
"They've also added arguments against abortion that reflect modern conservative thought, not Baptist tradition."

Excuse the tangent, but this is also not true. Protestant support for abortion is primarily an American phenomenon, and was only noticeably prevalent at all during the run-up to Roe.
2.28.2006 12:44pm
Joshua:
From Greg Sisk's original post:

A second and quite plausible explanation for the results in our study may be that the very fact of near-mainstream status works against a successful request for accommodation. Judges may consciously or subconsciously conclude that followers of those religious traditions are capable of effectively participating in the political process and thus are neither in need nor deserving of protection through judicial intervention from the results of that political process. Indeed, confirming that such assumptions are widespread, some of yesterday's comments insisted upon this explanation.
I tend to agree with the idea of "mainstreamness" itself being an inherent disadvantage, but for a somewhat different reason. Any judicial ruling to accommodate the practice or reflect the doctrine of a given religion or denomination can't help but dance along the edge of endorsement of that religion. When we drift into this borderline territory, appearances come into play.

My hypothesis is that judges and justices tend to regard a ruling in favor of a minority religion (for lack of a better term) as being inherently less likely to be seen by the public as an endorsement of that religion than a similar ruling in favor of a mainstream one, simply because the mainstream ones have the most political clout. (To put it another way: Catholics have considerable political clout nationwide. Rastafarians, not so much. Ergo, in this view, a ruling that reflects Catholic beliefs is a lot scarier First-Amendment-wise than one that reflects Rastafarian ones, except maybe to the DEA.)
2.28.2006 12:46pm
Proud to be a liberal :
A major part of the problem with the statistical analysis is the fact that Sisk separated Catholics (6.3% of the observations) and Baptists (3.0% of the observations) from the "general Christian" (25.2% of the observations). Do the Catholics &Baptists share in the same religous beliefs as "general Christians"?

For example, among Jews, all branches of Judaism would support the religious accommodation of time off for Yom Kippur.

Thus, by separating out "general Christian" from Baptist &Catholics, the statistics suggest that Baptists and Catholics do not join in/share accommodations provided to general Christians.

Query whether the Catholics/Baptists would share the same religious liberty issues as the "general Christians."

Interestingly, Sisk classified claimants and judges belonging to the American Baptist Chruch as "mainline Protestants" and not as Baptists. (footnote 73). Given that the Southern Baptist Church split from the Baptist Church over the issue of slavery, why does Sisk privilege the Southern Baptist church as "traditional" over other Baptists?

A review of the cases cited by Sisk indicates that they do not necessarily involve religious beliefs but instead seek exemptions from legislation for religious institutions. For example, footnote 80 lists numerous cases involving age discrimination claims against Catholic schools and universities. I am unaware of any Catholic doctrine that requires age discrimination against employees as a matter of religious faith.
Similarly, I am unaware of any religious doctrine that would require a Baptist to object to safety and health regulations, workers compensation laws, and Social Security.
2.28.2006 12:48pm
Dan28 (mail):

Similarly, because Catholics and Baptists are perceived by judges as having been fully acculturated into American society, individuals from such religious traditions may not be taken as seriously when asserting a conflict between their religious values and a government directive.


Here's another interpretation that explains the data equally well:

Because Catholics and Baptists are in fact more fully acculturated into American society than other faiths, individuals from such religious traditions are less likely to have a legitimate claim of religious prejudice. Therefore, a higher percentage of their claims are bogus, even inside a similar overall type of claim.

For example, in the category of "accomidation": who is more likely to be fired, a Catholic employee who insists that, for religious reasons, he cannot work on Sunday? Or a Muslim employee who, for religious reasons, insists on taking breaks to observe the Salaah for 10 minute intervals five times per day? The answer is of course the Muslim. This is a Christian country built around the Christian work week, which already presumes that many people need time off on Sunday. Comparatively few people need to take regular 10 minute breaks for a religious ritual, and as a result, employers in the normal course of business doesn't accomidate those people (or at least, not without a court order requiring them to do so). If this were a Muslim country, of course, performance of the Salaah would be expected and incorporated into the basic fabric of society, and no Muslim would ever have to sue for his right to practice the Salaah, but a Catholic might have to sue for his right to observe the Sabath.

Because our society is so much more readily willing and able to accomdiate the needs of Catholics than Muslims, Catholic claims for legal assistance logically must have less merit. Thus, not only is your finding that Catholics lose more often than Muslims easily explicable, it is obvious.
2.28.2006 12:49pm
Aukahe:
Public_Defender:
Oppostion to abortion is definitely a traditional Christian doctrine. The Southern Baptists only needed to add arguments to abortion after abortion was made legal. It wasn't an issue a hundred years ago.
The Southern Baptists do not require loyalty oaths. Each congregation chooses its pastor, liturgy, membership, etc. If you want to be a member of the convention you need to keep within acceptable doctrinal bounds. I assume the other Baptist associations have similar requirements for membership.
2.28.2006 12:52pm
Thief (mail) (www):
Prof. Sisk's raw data and methodology is located here for anyone who wants to examine it.

(Taken from his law review article, which I am, again, reading on my lunch break.)
2.28.2006 1:02pm
steveh2:
Another angle, related to the "the minority needs more protection" line of reasoning, is that there is probably more of a concern that if the majority is given increased deference or protection, the majority will use that to the detriment of the minority.

That's not worded very well, but I am thinking of issues like proselytizing in the workplace. A Jew or Muslim may put up a prominent religious symbol at his or her cubicle, and a court would likely be deferential to that individual's right of free speech or free exercise. But if a Christian decides to prominently post Christian religious symbols at his or her cubicle, I would not be surprised to see the Christian fare worse in litigation.

The assumption behind this potentially differential treatment would be that even if every Jew or Muslim posted their religious symbols, there would be little likelihood of explicit or implicit coercion of nonadherents. But if every Christian started posting their religious symbols in the workplace, the risk of coercion, or of perceived coercion, would be greater.
2.28.2006 1:07pm
DK:
Clayton Cramer is many things, but he is clearly not an Episcopalian, nor an expert on what is "traditional" for Episopalians. He should not claim to speak for them, and he can argue about whether gay bishops are biblically or theologically correct, but not about whether they are traditional for Episcopalians.

I am a cradle Episcopalian who has spent time in both very conservative and very liberal dioceses and parishes across the country. I can assure you that the Episcopal Church's tradition is to give lots of room for different opinions; to have no central authority capable of defining orthodoxy or punishing dissent; to allow each diocese to go its own way and elect its own bishops; and to oppose any interference by other bishops in the internal affairs of any diocese. The recent election of a gay bishop was well within this tradition, while the effort to stop New Hampshire from electing its choice of bishop was an unprecedented breach of tradition.

I would argue, though, that some of the fault here is Sisk's. IMHO it is a bit ridiculous to call conservative or Biblically-based Christians "traditionalists." Most modern evangelical and fundamentalist Christianity orginated in reform movements which were specifically trying to reject the traditions of mainline, stodgy, secularized Protestant churches in favor of a return to the Biblical text. Calling Southern Baptists "traditionalists" is a bit like saying that Antonin Scalia is a traditionalist carrying on the traditions of Earl Warren and Thurgood Marshall.
2.28.2006 1:08pm
Clayton E. Cramer (mail) (www):
DK writes:

Clayton Cramer is many things, but he is clearly not an Episcopalian, nor an expert on what is "traditional" for Episopalians. He should not claim to speak for them, and he can argue about whether gay bishops are biblically or theologically correct, but not about whether they are traditional for Episcopalians.
Please provide me a list of openly gay Episcopalian bishops or priests. If you can provide me even one from before 1970, I will retract my statement.

I am a cradle Episcopalian who has spent time in both very conservative and very liberal dioceses and parishes across the country. I can assure you that the Episcopal Church's tradition is to give lots of room for different opinions; to have no central authority capable of defining orthodoxy or punishing dissent; to allow each diocese to go its own way and elect its own bishops; and to oppose any interference by other bishops in the internal affairs of any diocese. The recent election of a gay bishop was well within this tradition, while the effort to stop New Hampshire from electing its choice of bishop was an unprecedented breach of tradition.
Decentralized authority may be a tradition of the Episcopalian Church; openly gay clergy isn't.
2.28.2006 1:16pm
Clayton E. Cramer (mail) (www):
Justin writes:


"As an example, if the courts decided that there was a constitutional right of adults to rape children, that would an example of the concept of minority rights run amok."

Huh? Last time I checked, adults made 100% of the voting population. Now if children were allowed to rape adults....
Adults who want to rape children are, at most, a fraction of 1% of the adult population, and therefore a minority group.
2.28.2006 1:17pm
Steve:
That's not worded very well, but I am thinking of issues like proselytizing in the workplace. A Jew or Muslim may put up a prominent religious symbol at his or her cubicle, and a court would likely be deferential to that individual's right of free speech or free exercise. But if a Christian decides to prominently post Christian religious symbols at his or her cubicle, I would not be surprised to see the Christian fare worse in litigation.

The assumption behind this potentially differential treatment would be that even if every Jew or Muslim posted their religious symbols, there would be little likelihood of explicit or implicit coercion of nonadherents. But if every Christian started posting their religious symbols in the workplace, the risk of coercion, or of perceived coercion, would be greater.


If this turns out to be the major difference, I'd agree that those who are troubled by it have a point, although it could certainly be debated. Government endorsement of a majority religion is one thing, but it's surely not the fault of the individual Christian that he belongs to a majority religion. If someone feels more coerced by an individual act just because it happens to stem from a majority religion, it's hard for government to limit the religious observance on that basis.

I suspect, though, that the explanation advanced by most of the commentors is more likely to be valid.
2.28.2006 1:18pm
Proud to be a liberal :
The Southern Baptist Church was founded in 1845 when the Baptist church split into the Northern Baptist Church and the Southern Baptist Church because the Baptist Church refused to ordain slave owners as ministers. The Northern Baptist Church was renamed the American Baptist Church in the 1950s. The creation of the Southern Baptist church thus was not part of a reform movement or an objection of secularized churches.

The American Baptist Church has a proud history dating back to Roger Williams, and including participation in the abolition movement and in the civil rights movement.

As a liberal, I find it profoundly offensive when the implication is made that religious groups such as the American Baptist Church are less religious or less traditional than other religious groups.
2.28.2006 1:18pm
Clayton E. Cramer (mail) (www):
Public_Defender writes:

Cramer, your anti-gay position is clear, but you limit yourself to that one issue. Conservative churches also have "new" positions, like opposition to abortion.
Wrong on all counts. I suppose next that you will argue that opposition to gay clergy is "new" because you won't find any arguments about that 50 years ago. Guess why?
2.28.2006 1:19pm
Clayton E. Cramer (mail) (www):
DK writes:

IMHO it is a bit ridiculous to call conservative or Biblically-based Christians "traditionalists." Most modern evangelical and fundamentalist Christianity orginated in reform movements which were specifically trying to reject the traditions of mainline, stodgy, secularized Protestant churches in favor of a return to the Biblical text.
Did you even read what you wrote? Fundamentalism is a result of an attempt to preserve traditional Christian ideas of Biblical literalism, Jesus the Son of God, and a lot of other ideas that were beginning to be questioned by the more liberal seminaries in the late nineteenth century. Fundamentalism, whether right or wrong theologically, is an attempt to preserve traditional theological beliefs.
2.28.2006 1:24pm
Dan28 (mail):
In his refutation of the 'claims have less merit' argument, Sisk says something truly revealing:


the diminished success of Catholics and Baptists may be attributed to their greater tendancy to resist applications of social welfare regulations and discrimination laws


Even Sisk admits that there is a fundamental difference between claims by Muslims and Cat/Bapts: Claims by the latter are more likely to be in resistance to applications of social welfare regs or discrimination laws. Thus, the only way to believe in Sisk's argument is if you believe that claims of that type are equally valid to religious claims by other groups. In other words, Sisk's argument hinges on whether you agree with the content of the claims themselves.

Nobody can seriously believe that Muslim groups seeking to resist social welfare regs are more likely to win in court than Cat/Bapt groups. But if he had analyzed that category, it would defeat his whole point and make it obvious that Cat/Bapts do not face discrimination in the Court system. So instead he subsumes "claims that resist social welfare regs" which he knows to be the true controlling factor into categories like 'accomidation' or 'establishment'. By doing so, he hides the real factor for a moment, so that it will look all the more impressive when he breaks the claims down by religious group and (abracadabra!) the real controlling factor is once again revealed.

In fact, if Sisk were honest, he would say courts are prejudiced against claims that resist application of employment discrimination or social welfare regs, and that Cat/Bapts are more likely to make claims like that. And of course, it makes sense that courts would be prejudiced against such claims. They are categorically less meritorious.

This isn't scholarship. This is just the assertion of a right wing agenda. Volokh should not dignify this with such a prominent role on this web site.
2.28.2006 1:34pm
Clayton E. Cramer (mail) (www):

Nobody can seriously believe that Muslim groups seeking to resist social welfare regs are more likely to win in court than Cat/Bapt groups.
Huh? Governmental funding of programs that clearly discriminate in favor of Muslims (sex segregated use of swimming pools, for example), and yet the ACLU didn't sue. (It isn't as though the ACLU doesn't care about swimming; they filed suit against a municipal pool that required swimmers to wear swimsuits.)

Remember that the legal establishment has a strong prejudice against Christianity. Your statement,
This isn't scholarship. This is just the assertion of a right wing agenda. Volokh should not dignify this with such a prominent role on this web site.
is an astonishingly open admission of your belief that only certain sets of ideas deserve serious examination. In this respect, you are in the mainstream of the legal academy.
2.28.2006 1:43pm
SLS 1L:
Clayton Cramer - isn't e.g. the Catholic doctrine that people are categorically unfit for the priesthood if they have same-sex sexual desires a new development? The real tradition seems to have been of letting gay men serve and being hush-hush about it.
2.28.2006 1:46pm
SLS 1L:
Clayton Cramer:
Nobody can seriously believe that Muslim groups seeking to resist social welfare regs are more likely to win in court than Cat/Bapt groups.
Huh? Governmental funding of programs that clearly discriminate in favor of Muslims (sex segregated use of swimming pools, for example), and yet the ACLU didn't sue. (It isn't as though the ACLU doesn't care about swimming; they filed suit against a municipal pool that required swimmers to wear swimsuits.)
Huh? Of what relevance is the fact that the ACLU failed to bring one lawsuit they might theoretically have brought? The original claim was (a) not about the ACLU and (b) about winning lawsuits, not bringing them.
2.28.2006 1:53pm
Proud to be a liberal :
The ACLU did represent a Muslim woman who was dressed in street clothing and went to a swimming pool to supervise her children who were dressed in swimsuits. Is there anyone who believes that the government's refusal to allow the modestly attired mother admission to supervise her children in the swimming pool did not violate the free exercise clause?

The ACLU is not required to take every establishment or free exercise clause case.

Sisk's statistics would be easier to evaluate if it was possible to compare apples to apples. How many "required dress" cases were filed by Southern Baptists or Catholics? How many religious holiday cases were filed by Southern Baptists or Catholics?
2.28.2006 2:02pm
Bob Bobstein (mail):
Mr. Cramer-- You may have missed Dan28's main point, which was: "Sisk admits that there is a fundamental difference between claims by Muslims and Cat/Bapts: Claims by the latter are more likely to be in" opposition to existing laws.

Any group of people characterized by an unusual incidence of "resist[ing] applications" of the law will turn out not to do too well in the courts.

Sisk, and you, are free to make the case that current laws are bad, that they protect groups that are bad, or that they infringe on civil liberties, or free exercise, or what have you.

But Sisk's study does not demonstrate a judicial bias, when Sisk admits that rejected claims that he cites as an example of bias are correct judicial applications of the law.
2.28.2006 2:05pm
Richard Aubrey (mail):
SLS 1L.

I think Cramer's point is that people were never particularly worried about accomodating the requests of Muslims, even if it meant restricting the rights of others--swimming pool example--even before the cartoon jihad resulted in death threats. I expect society to be even more accomodating to Muslims in the future until Catholics and Baptists get their explosives training classes going.

Years ago, the ACLU forced a high school in Detroit to set aside a room for Muslim kids to pray in. I imagine that's considered a reasonable accomodation and not implicit state sponsorship of a religion, until a Christian asked for something similar.

For those who think excessive literalism is a way to duck an argument, I know Christianity doesn't require five prayers a day, two or three of which might fall into the normal school or work day. So, if you were planning on using that as a distraction, forget it. The real point is that society isn't going to accomodate something that takes property and money and state action on behalf of Christians. See crosses on city seals, for example.
I suppose Christians, if they wanted to make a case about it, could think of something and use the precedent. Fortunately, they have other things on their minds.
2.28.2006 2:08pm
eponymous coward (mail):
I looked at some of the cases in the Establishment clause section. A lot of the ones being scored as anti-religious are ones where crosses and religious items are being removed from seals/logos/public property, or occasions where school prayer directed by school officials was disallowed.

Draw your own conclusions from that, I guess.
2.28.2006 2:08pm
Hemingway:
Protestant support for abortion is primarily an American phenomenon, and was only noticeably prevalent at all during the run-up to Roe.

Good point, Taimyoboi. Opposition to abortion was pretty much universal amongst Christians for 1900+ years, though there was some debate in the Middle Ages about whether killing an embryo in the early stages of pregnancy was literally murder (a sin) or something more akin to birth control (which was tantamount to murder, and also a sin). Modern science has oriented orthodox churches toward the former view in the 19th and 20th centuries.

That being said, one should note that evangelical Protestants did change the translation of Exodus 21:22-23 to make it sound more clearly anti-abortion. I'm not a Hebrew scholar but I'm skeptical of this alteration; it reminds me of the sort of dubious "re-interpretations" of Scripture that abound in liberal churches. The text is clear enough the way it's always been translated. No need to lose credibility by changing it.
2.28.2006 2:09pm
logicnazi (mail) (www):
What about the explanation that as majority religious groups these groups feel more comfortable/less reluctant to sue for things that don't really rise to the level of a violation? This doesn't have to mean more total suits (their may be less actuall violations against them).
2.28.2006 2:11pm
AF:
I still think someone should study whether racial minorities are more likely to win anti-discrimination cases than white people.
2.28.2006 2:12pm
Proud to be a liberal :
Christmas is a national holiday. Many schools give students a week off around Christmas, and many public schools give Good Friday off. Are these not accommodations of the Christian religion?

I think that too many Christians are oblivious to the actual accommodations made to Christians in every day life in America.

Allowing Muslims the opportunity to pray is quite a bit different from making all students listen to Christian prayers!

You need to compare apples to apples, not to zebras.
2.28.2006 2:13pm
Matt L. (mail):
Professor Sisk appears to be taking the preferred route of far-right guest posters here, making his easy arguments against straw men early and trying to wait until the end of his stint to (maybe) address the actual issues. "Do the decisions of [overwhelmingly Christian] judges reflect mere hatred for Christians? Some might think yes, but I say ... no!" Has anyone really suggested otherwise?

What pretty much every commenter on this site has actually asked is: "Do your data actually reflect differing results for similarly situated claimants, or are they caused by the differing categories and merits of the claims?" The reason the commenters ask this, rather than "wow, Greg, do you think the courts discriminate against Christians because Scalia and Kennedy hate Catholics?," is that it's the obvious, fundamental, threshold question that he needs to address. But, what, he may get to it on Thursday if there's time?

The structure of the gay-marriage guest-post debate was oddly similar. I think this exercise would be a lot more useful, and a lot less infuriating, if Professor Sisk started with the hard questions and went from there. Starting with the non-questions seems to be going nowhere.
2.28.2006 2:48pm
Anon_Anon_Anon:
Some of these observations and criticisms are very good. But it seems as if some commenters are so eager to attack Sisk's conclusions that they can't be bothered to carefully evaluate his bases for them. It's apparent that a substantial number haven't read the articles they're attacking, which address many of the objections raised here and provide probative evidence that no one has even mentioned. (As for the repeated demands for raw data: The Ohio State article points readers to the page that someone linked earlier in this thread. Anyone interested in actually finding the data, rather than finding an excuse to be snarky, can easily do so in three minutes or less.) It's disappointing, if unsurprising.
2.28.2006 2:56pm
Justin (mail):
Aubrey, would you like to cite the case you are referring to? I suspect you are misrepresenting it (probably not intentionally, but I think key parts of what I suspect the holding is that would defeat your point have been omitted, namely that the lawsuit was about accomodation, and that the choice of setting aside a room (not a prayer room, but simply a space) for prayer was one of several least restrictive alternatives, including allowing the student to leave the school grounds to pray. Similar rights - to leave school for prayer purposes - have been widely upheld by Christians.

I'm also wondering about standing issues (that is, if the school had multiple options to choose from, and they chose one that would violate the establishment clause, whether the court could address that sua sponte or wait for someone with standing to make the challenge).

Anyway, these are just informal thoughts, for now I'd really appreciate a citation.
2.28.2006 3:11pm
frankcross (mail):
The point of empirical research is to identify some truths as opposed to the claims of an ideological agenda.

Ideologues love the anecdote and selective ad hominem attack. When one attacks the author of empirical research, I conclude that one is a little insecure of the truth of his or her position and must shift the debate to one of motives. The data and methodology here are transparent -- if the study's wrong, it can be exposed by logical argument and not by attacking the author.
2.28.2006 3:12pm
Justin (mail):
Triple Anon,

I don't think your criticism is fair. By far the large majority of us are making criticisms against the post in ways that don't require us to examine the data - we only need to take Professor Sisk's word on what that data represents, and I don't think that's an unfair way of rebutting an argument. In rebutting an argument, you can either directly address the sufficiency of the argument or you can address the underlying assumptions - only for the latter do you have to refer to the cited evidence.
2.28.2006 3:14pm
Clayton E. Cramer (mail) (www):
Proud to be a liberal says:


The ACLU did represent a Muslim woman who was dressed in street clothing and went to a swimming pool to supervise her children who were dressed in swimsuits. Is there anyone who believes that the government's refusal to allow the modestly attired mother admission to supervise her children in the swimming pool did not violate the free exercise clause?


Here's what the actual article I linked to said:


The lawsuit was filed in June 2004 on behalf of a Muslim woman who was not allowed to enter a public swimming pool last summer due to her religious clothing. The city policies in place at the time of the lawsuit did not permit anyone to enter a swimming pool unless they were wearing a bathing suit.
Perhaps I'm missing something, but "enter a swimming pool" seems to mean "enter a swimming pool."

But even assuming that you are correct: many Christians assert that they have a religious duty to express their disapproval of abortion. You can disagree with them about this if you wish, but there's a long tradition of Christians expressing disapproval of sin in public places, starting with Quakers entering Puritan churches wearing only ashes. Will we be seeing the ACLU file suit to prevent the anti-picketing provisions of FACES from being used to violate freedom of religion?

The ACLU is not required to take every establishment or free exercise clause case.
No, they aren't. But their clear preference on cases shows that their interest is primarily anti-Christian, and only partially in defense of their ahistorical view of the establishment clause.
2.28.2006 3:24pm
Justin (mail):
In one of the articles, Professor Sisk makes the statement:

Because Catholics and Baptists are found in significant numbers across the country, judges may consciously or unconsciously conclude that followers of those religious traditions are capable of effectively particiapting in the political process and thus are neither in need nor deserving of protection through judicial intervention and the results of that political process.

First of all, shame on the Ohio State Law journal for not cutting out the fat in that sentence.

More to the point, I think the key problem alot of us are having with Sisk's argument is that Sisk just assumes that this motivator is not a factor in determining the results even when one assumes a completely neutral arbiter.

In other words, BECAUSE "those religious traditions are capable of effectively particiapting in the political process," and thus generally can claim a higher percentage of their constitutional and other generally applicable statutory rights without resort to the courts, when they seek "protection through judicial intervention and the results of that political process," their cases are, as a whole, more marginal, and thus less likely to succeed.

And having skimmed the OSU article, and not having the time to read it in depth, I and others are still seeking that response. If it is in the article (or the Colorado one), a pincite would be appreciated (rather than a general reprimand that is unhelpful).
2.28.2006 3:26pm
Clayton E. Cramer (mail) (www):

Clayton Cramer - isn't e.g. the Catholic doctrine that people are categorically unfit for the priesthood if they have same-sex sexual desires a new development? The real tradition seems to have been of letting gay men serve and being hush-hush about it.
The Catholic Church's current policy, as I understand it, is that it is the actions, not the desires, that are the problem. Even heterosexual priests who act on their desires are in trouble, because of the Church's celibacy rule (which only dates from the 11th century--a little too far back to just call it a passing fad, unfortunately).

There's no question that the Catholic Church allowed a fair amount of rationalization about this. I've read a depressing article by a Catholic priest who explained that back in the late 1950s, when he was in seminary, the widely held belief was that sex with little boys wasn't really "sex," and therefore wasn't a violation of the celibacy rule. This sort of reasoning is what makes people in lawyers.
2.28.2006 3:30pm
Defending the Indefensible:
Proud to be a liberal writes:
The Southern Baptist Church was founded in 1845 when the Baptist church split into the Northern Baptist Church and the Southern Baptist Church because the Baptist Church refused to ordain slave owners as ministers. The Northern Baptist Church was renamed the American Baptist Church in the 1950s. The creation of the Southern Baptist church thus was not part of a reform movement or an objection of secularized churches.
Fascinating, I wasn't aware of this history of the schism in the Baptist Church. So it would be as correct to say that the Southern Baptist Church split off in order to maintain the (then-)conservative value of slave-ownership.
2.28.2006 3:35pm
Richard Aubrey (mail):
Justin. I don't think so. I heard it from an ACLU guy during a phone conversation and he was referring to the recent past and that conversation was about ten years ago.
He was the guy who said that allowing a sports team to pray voluntarily before a game shouldn't be allowed. The coach was "condoning prayer". Now, I know the default position is that whatever the ACLU does, it's only a local and you can't judge the whole group like that. I talked to another member of the chapter who said he was wrong. Since I've been involved with liberal/left activists for years, I suspect she meant the guy was wrong to tell me, to let the word out, not that he was misrepresenting their goals. But I don't know for sure.

My point is not that the school did the easiest thing they could to accomodate the Muslims, or did something else. They set aside a room, no other use, I should have said the guy told me, for Muslim kids to pray. At what point does accomodation become sponsorship? Sisk implies, and I think, that it depends on which religion it is.

I will say that my interest in these matters has primarily been about schools. They seem to think they can do things to restrict the free exercise thereof--by Christians--to an extent that they are frequently losing big time in court. They go past the D of Ed guidelines--which resemble the ACLU's position--and lose. Why, I don't know, except that there seems to be no central publication for public school administrators which would address various problems of administering public schools, including lists of stupid restrictions cases which have gone to court and cost the districts money. Few of them seem to be bothering Muslims or Jews.

But in this subset, the Christians seem to win a good deal of the time, which would contradict Dr. Sisk's info. His data no doubt include many other areas of conflict to overcome the numbers in school cases.

It might contradict Dr. Sisk's thesis if we regard courts alone. But if the courts come out on the Christians' side, then there is another sector of society which is making it so difficult that it ends up in court. And loses so frequently that it is either boneheaded ignorance or harassment and malice. Sisk is probably not taking the courts as a proxy for the public sector of society, but he probably could make the case, were the issues of definitions not so difficult.
2.28.2006 3:41pm
Justin (mail):
All I'm really asking for is a citation, Aubrey.
2.28.2006 3:52pm
Clayton E. Cramer (mail) (www):

Fascinating, I wasn't aware of this history of the schism in the Baptist Church. So it would be as correct to say that the Southern Baptist Church split off in order to maintain the (then-)conservative value of slave-ownership.
Not just the Southern Baptists. The Methodists also split over this issue, and I think some other national denominations regionalized over the slavery issue.

Oddly enough, while Southern Baptists split antebellum over slavery (what might be called a conservative position), after World War II, Southern Baptists were strongly in opposition to segregation and the Klan.
2.28.2006 3:53pm
Clayton E. Cramer (mail) (www):
More about Southern Baptists and segregation, from a review of Mark Newman's Getting Right with God: Southern Baptists and Desegregation, 1945-1995:
Around 1945 and throughout the 1950s and 1960s, a majority of Southern Baptists started to reassess the race situation in the South (Newman looks at the eleven states formerly part of the Confederacy). Though some Americans began questioning treatment of African Americans particularly in light of the atrocities of Nazi Germany toward Jews, Newman attributes the SBC's about-face to American society's increasing rejection of de jure segregation, the Brown v. Board of Education case in 1954, pressure from the growing civil rights movement, and the incompatibility of segregation and Jim Crow with the SBC's "primary commitments" to "evangelism, law and order, and public education" (p. 1).

Newman asserts that although hard-line segregationists strongly embraced de jure segregation, most Baptists were actually moderates or progressives who were unwilling to sacrifice the SBC's primary commitments. Evangelism was stressed by Christ's Great Commission from Matthew 28:19-20 to preach to all people. Support of segregation in the South broadcasted across the world undermined the SBC's missionaries in non-white countries. Baptists also noted that the Bible explicitly instructed Christians to maintain social peace and respect law and order. Support of segregation after 1954 defied federal law. Moderate segregationists were likewise reluctant to disrupt public education, believing it "essential for producing an educated citizenry that could read and understand biblical teachings . . . [and] for the maintenance of a democratic and free society, conditions under which, they believed, Christianity prospered" (p. 21). Support of segregation threatened to shut down the public school systems in many southern states. Moderates also came to conclude that the Bible did not advocate segregation as the successor of slavery as many hard-line Southern Baptist segregationists maintained. Adding the factors together, many in the SBC identified enforced segregation and defense of it through nullification, interposition, church establishment of private schools, and mob violence as unchristian.
2.28.2006 4:07pm
Dan28 (mail):
Cramer,

You are citing a Seattle munincipal pool regulation as evidence that Federal Courts are biased in favor of Muslim claims of religious exemptions to social welfare regs or discrimation laws? If you really want to believe that the Federal Courts are biased in those specific cases, fine. But I think it is abundantly clear that the author of this piece has not provided one iota of evidence that this is the case. A single non-case from Seattle hardly proves anything.


Many Christians assert that they have a religious duty to express their disapproval of abortion.


Your comparison of the two claims is illuminating. In the first ACLU case you cited, Muslim women had to win the right to be with their children in a public area while still wearing religiously proscribed clothing, an act that does absolutely no harm to anyone else. In your latter issue, Christians assert the right to express their disappoval of the actions of other people by using "force, the threat of force or physical obstruction" to prevent access to abortion clinics (that's the language of FACE). Could you imagine Muslim groups asserting their right under the first amendment to use "force, the threat of force or physical obstruction" to prevent others from drinking alcohol? (well, sadly the answer is maybe, but they would get laughed out of court). As previous posters have said, this isn't comparing apples to oranges, it's comparing apples to zebras.
2.28.2006 4:07pm
Clayton E. Cramer (mail) (www):

In the first ACLU case you cited, Muslim women had to win the right to be with their children in a public area while still wearing religiously proscribed clothing, an act that does absolutely no harm to anyone else.
A block of stone with some old writing in a city park does "absolutely no harm to anyone else" either, but the ACLU still puts enormous energy into lawsuits against it. A tiny little cross on a mission in the County of Los Angeles seal does "absolutely no harm to anyone else", but the ACLU threatened suit over it. If liberals are going to use this as their standard, the ACLU will be filing a lot less suits. But liberals really aren't concerned about harm--they are concerned about suppressing the majority religion of the U.S. They certainly aren't concerned about establishment of religion violations, or they would be filing suits against the use of federal funds to create sex-segregated swimming hours in support of one particular religion.
2.28.2006 4:14pm
Bob Bobstein (mail):
Well, leaving aside the merits of displaying religious things in public areas, the harm of perceived govt endorsement of religion (and rejection of other religions), while not necessarily massive, certainly exceeds the harm done to others by a Muslim woman being in public wearing a hijab.
2.28.2006 4:23pm
Justin (mail):
Darn, Clayton figured us out. Okay, guys, we need to come up with a new conspiracy. All report to Brain immediately (that means you, Pinky).
2.28.2006 4:23pm
DK:
Clayton Cramer said to me:

Did you even read what you wrote? Fundamentalism is a result of an attempt to preserve traditional Christian ideas of Biblical literalism,

Yes, Mr. Cramer, I read what I write, and I _never_ engage in ad-hominem or rude, argument-ignoring attacks like saying "did you even read what you wrote?" If you have evidence that Biblical literalism is a traditional Christian idea, I would appreciate your providing it. Most of what I have heard is that Christian Fundamentalism began in the early 1900's, in a reaction against a new wave of German Biblical criticism based on modern scholarship, and in many ways imitating the rigor of the modern critics, but with a different set of first principles. Meanwhile, the fundamentalists rejected a lot of Christian traditions such as serving real wine for communion instead of grape juice and preserving the apostolic succession. And particularly, they rejected a tradition going from St. Paul through Augustine to Aquinas of interpreting Christianity in light of the best that Greek philosophy and science had to offer. I would appreciate hearing more if you have evidence that something different happened.

IMHO, "tradition" in Christianity is on the side of the Roman Catholics and the Eastern Orthodox. Not of the fundamentalists.
2.28.2006 4:27pm
Richard Aubrey (mail):
Justin. I have no idea about getting a cite for a decade-old phone conversation. I might be able to find the school, although in the present climate calling up a succession of schools and asking if they have a room set aside for Muslim kids to pray in might get me incorrect responses. So I don't know what to say.

I see you responded to Cramer's last point as a good liberal would: duck and sneer.
2.28.2006 4:27pm
byomtov (mail):
after World War II, Southern Baptists were strongly in opposition to segregation

What??? This is a strong candidate for the most ridiculous statement ever to appear on the Internet.
2.28.2006 4:36pm
Justin (mail):
Aubrey

1) You tried to use a case that I am now concerned may not even exist for its holding being pro-Muslim in a way that contrasts the points made by several posters. Asking for the citation of that case to see if the holding actually does contrast the point is not out of bounds.

2) Cramer's point that I responded to was: "they are concerned about suppressing the majority religion of the U.S." (in context, as a goal unto itself, I should add). To treat such a criticism as one worthy of a legitimite response, I first charge you with not actually being interested in Christian ideas, but solely using Christianity as a plot to restore the white man to the position of power he held in the 1950s.

Or what, you don't want to defend yourself using serious arguments?
2.28.2006 4:40pm
Public_Defender:
I've been demanding the data, but it looks like he has made it public on his web site.
2.28.2006 4:47pm
Defending the Indefensible:
Clayton Cramer:

Oddly enough, while Southern Baptists split antebellum over slavery (what might be called a conservative position), after World War II, Southern Baptists were strongly in opposition to segregation and the Klan.

They were?

http://tinyurl.com/l9rsr
2.28.2006 4:52pm
Richard Aubrey (mail):
Justin. Since I can't prove the existence of the case, you are relieved from the difficulty of discussing the ramifications. You don't really win that way. Let's call it an escape.

Cramer has alluded to the substantial amount of effort the ACLU has put into removing crosses from old stones whose presence harms no one, and from municipal insignia or seals. That has to mean something, since it can't mean nothing. If you don't like his conclusion, give us one that won't cause us to fall out of our chairs laughing.

Do you really think the ACLU's choices in that area are good? They have a limited--though apparently quite large--amount of money to spend and what they spend going after crosses on old stones they can't spend on something else. From which we deduce that crosses on old stones seem considerably more important than other causes which this effort means can't be afforded. In other words, there's nothing they're not doing because of money that's as important to them as getting rid of crosses on old stones.

Remember, your explanation isn't supposed to generate howls of laughter.

In the meantime, they expend effort and money to get schools to accomodate Muslim prayer concerns without worrying about implicit approval of the religion.

Oh, yeah. This is the place where somebody accuses me of Islamophobia or chauvinism or jingoism or McCarthyism or racism or something. Don't disappoint me.
2.28.2006 5:06pm
Defending the Indefensible:
Aubrey:
Oh, yeah. This is the place where somebody accuses me of Islamophobia or chauvinism or jingoism or McCarthyism or racism or something. Don't disappoint me.
If you're used to being accused of such -isms, is there a reason? If the shoe fits....
2.28.2006 5:36pm
frankcross (mail):
Why, when we have empirical data available, does the discussion degenerate into anecdotes?

Clayton Cramer embraces the finding that traditional religions seem disfavored by the courts but maintains that Muslims are favored, even in the presence of the empirical evidence showing them to be a disfavored group. Well then, explain the data. The same goes to those criticizing the study as biased for traditional religious interests.
2.28.2006 5:36pm
SLS 1L:
Clayton Carmer:
But liberals really aren't concerned about harm--they are concerned about suppressing the majority religion of the U.S. They certainly aren't concerned about establishment of religion violations, or they would be filing suits against the use of federal funds to create sex-segregated swimming hours in support of one particular religion.
As a liberal atheist who supports most of the ACLU's view of Establishment Clause jurisprudence, I have to take exception. There's a defensible justification for treating majority and non-majority religions differently for Establishment Clause purposes which makes a choice not to sue the pool perfectly reasonable.

Because members of a majority religion have more power than members of minority religions pretty much by definition, a reasonable person will look differently on purported endorsements of each. A purported endorsement of a majority religion is more likely to be an actual endorsement of that religion than is a purported endorsement of a minority religion. A reasonable person would see a "Christians only" afternoon at the pool as an attempt to signal to non-Christians that the government looks disfavorably on them. With "Muslims only" afternoon, a reasonable person will take into account the fact that Muslims are a relatively politically weak minority and will therefore be less likely to see it as an endorsement of Islam or an attempt to make second-class citizens out of non-Muslims.

To believe this you have to buy the endorsement test, but the ACLU could easily be motivated by intellectual consistency, not anti-Christian animus even if they actually chose not to sue (rather than e.g. nobody ever complained to them).
2.28.2006 5:56pm
SLS 1L:
I forgot to mention - why, exactly, have comments about a post about a study purporting to show that judges are biased against "traditionalist Christian" plaintiffs turned into an argument about the purported bias of the ACLU? Even if the ACLU is as biased as certain posters claim, what has this got to do with the bias of judges? (Who, the last time I checked, were generally not picked from the ACLU leadership).
2.28.2006 6:13pm
Anon_Anon_Anon:
Justin,

To be clear, my reference to raw data was a side note directed at Public Defender, who kept demanding (snarkily, I thought) that the raw data be made available when it already was available and could be easily found.

My chief complaint is that a significant number of commenters seem to be attacking Sisk for failing to address points that he has addressed -- in the underlying articles! It seems to me that some commenters expect him to reproduce the entire substance of his articles here on this blog. That's an unreasonable expectation. Thus, criticisms in the vein of, "Ah-hah, Sisk, you didn't respond to Obvious Criticism X. Your work is shoddy, right-wing propaganda, you rotten ideologue, you!" seems grossly unfair unless the critic has first verified that Sisk didn't address Obvious Criticism X in the underlying articles. It's apparent to me that some haven't bothered with that step.

In my view, a useful and fair critique would begin where Sisk's work leaves off. For example: "Why yes, Sisk, I see that in II.E of your Colorado Law Review article, which begins on page 1050 [hint! hint!], you've explained why you don't believe that claims brought by Catholics and Baptists tend to be weaker on the merits than those brought by members of other religions or sects. I find your answers unpersuasive. Here's why . . . " The resulting conversation would advance the debate beyond what we could get by simply reading the articles. It would be a productive use of our time and Sisk's. And it would be fair. Attacking Sisk for failing to answer this or that pet objection, based solely on the fact that he didn't include his answer in the highlight reel (i.e., on the blog), strikes me as bad form. That's particularly true when he's already said that he plans to get to those objections later this week.

Again, my criticism isn't directed at all commenters. Some obviously have read the articles, and have made informed and useful observations. I'd love to see more of those, and less of the other kind.
2.28.2006 6:22pm
Dan28 (mail):
SLS 1L,

Nothing. This conversation has gone from a debate about the validity of the original study to a debate about the merits of the actual claims involved. This is not surprising. The only way to believe the claims made in this study is if you already agree with the merits of the claims made by Cat/Bapts. In other words, this study contributes nothing to the discussion and has become wholly irrelevant to its own thread.
2.28.2006 6:23pm
Paddy O. (mail):
DtheI, it's not quite right to say that the Baptists split because the Southern Baptists took the (then) conservative position on slavery. This had nothing to do with conservative religious beliefs and a lot more to do with regional politics that quite often, throughout history and religions, trumps particular beliefs.

Conversatives split with conservatives over the politics, as Baptists are apt to do given the slightest opportunity. Indeed, I should note that it was conservative religious leaders in the North who were often the most strident abolitionists. My own alma mater in the midwest has a man buried on the campus who died after being caught helping escaped slaves. He wanted to be buried where people actively fought against the evils of slavery, and the president of the school was a quite active abolitionist himself, and founded the school on abolitionist principles. This college is still considered one of the premier Evangelical Christian schools.

The Baptists in the North split not because they were liberal, but precisely because they were conservative, and could not be in communion with slave holders. The southerners, in their estimation, put slavery before Christ is in their decisions. Being anti-slavery was a very religious attitude to have in those days, with the Quakers and the early Baptists being quite anti-slavery going back to before the founding of this country.

Indeed, John Wesley, the founder of the Methodists and arguably the precursor to most every revivalistic tradition in the United States had this to say in 1774, " If, therefore, you have any regard to justice, (to say nothing of mercy, nor the revealed law of God,) render unto all their due. Give liberty to whom liberty is due, that is, to every child of man, to every partaker of human nature. Let none serve you but by his own act and deed, by his own voluntary choice. Away with all whips, all chains, all compulsion! Be gentle toward all men; and see that you invariably do unto every one as you would he should do unto you."
2.28.2006 6:34pm
Justin (mail):
Sisk makes several arguments as to why conservative Christian groups do not present weaker arguments to the court. None are persuasive.

The first argument he makes is that it's not their job to prove that the claims are equal, but the other side to prove that they are weaker. This is not only wrong as a matter of empirical science, but for the reasons given above, the natural prediction would be that their claims would be weaker, since the legislature would cater more to them and remove a portion of their "easy wins" through the legislative and administrative processes.

The second argument he makes is that he's broken it down into type of case. He fails, however, to explain why the "weaker case" theory wouldn't work across subsets - it isn't clear why the administrative and legislative models wouldnt protect Catholic rights in free speech cases more than in employment cases, for instance.

The third argument he makes is that using published cases equalizes on the merits. First of all, this isn't correct. For the 9th Circuit, this may be somewhat true, but other circuits will tie precedents to the quality of counsel. If Christians and Baptists have more resources for lawyers, but weaker cases, as one would expect - well, that seems like a more likely explanation. Also, published cases are far more likely to be antidemocratic than nonpublished cases, and thus decisions that go against the "majority" are more likely to be published.
2.28.2006 6:35pm
Dan28 (mail):
I think all three of those arguments fall into the category of 'so absurd they fall outside the realm of serious engagement with opposing ideas.'
2.28.2006 6:38pm
Justin (mail):
Shorter fight

Aubrey: Here's a case that's holding disproves your argument.

Justin: That's interesting, what's the citation? That holding sounds weird and simplistic, and maybe you're misreading it.

Aubrey: I don't have a citation. I don't need one.

Justin: Without a citation, I can't verify that this holding even exists. Much less refute your characterization of the holding.

Aubrey: I can't be bothered. Nice way to sneak out of the discussion.
2.28.2006 6:38pm
Richard Aubrey (mail):
Justin. I suspect that there are other examples. I hope, for your sake, that you never encounter one.

Did I say the case disproved your argument?

I talked after that to Americans United for The Separation of Church and State. They thought the voluntary prayer was allowed but wouldn't comment on the school room.

However, for more recent issues, search for muslim curriculum california schools Don't enclose it in quotes, because you'll lose a bunch of hits.

It appears there is a week-long roleplaying of being Muslim in California schools. I suppose we could call it education by immersion, but, as some have said, you couldn't do it for Christianity. The question of its appropriateness is one issue. The implied sponsorship of a religion by the state is another, and ought to be addressed here.
Or you could keep a straight face--easy to do online--and insist it would be fine and you'd have no argument if a similar curriculum for Christianity were imposed.

Now, for a bit of pre-emption. This is not the sort of thing the MSM is likely to report, so you'll find some hits in sources you don't like. That's handy, since you'll be able to dismiss the whole thing, since it's in, say, Free Republic. As if that means it isn't happening. But if you keep at it, you will find it in sources which will not lend themselves to dismissing the story. Then what are you going to do?

Yes, I am used to the accusations. Give a liberal an argument he can't handle; you're a racist. Old story.

I didn't say I couldn't be bothered. What I said, or meant to say, was the obvious point that telephone conversations rarely have cites, and that finding the school might, in the current circumstances, be nearly impossible.

Now, since the cartoon jihad, we have a number of pre-emptive surrenders, which might be called appeasement, or sensitivity, or something high-sounding.
2.28.2006 7:21pm
Justin (mail):
Aubrey,

You've gone massively off topic, and though I disagree vehemently with both your own self-assessment of your ability to discuss things and liberals, I'm not going to give a reply as I don't want to drag this further off topic. Needless to say, this is a fairly academic blog, and I'm generally going to discount second hand information about legal holdings or school regulations in the first instance.

The reason why some (not me, not yet) will call you a racist is because the only coherent position in the threads on this board that you have taken is anti-Muslim (i.e., the useless reference to the cartoons in your above post). This isn't a way of disagreement (notice nobody else is being called any names except possibly Mr. Craymer, whose got somewhat of a history on this board. It has nothing to do with liberalism or debate strategy, and the solution is to tailor your points more carefully.
2.28.2006 8:01pm
Richard Aubrey (mail):
Justin. Wrong again. I am not anti-Muslim. I am against pre-emptive surrender to violence. The cartoon jihad (it wasn't me doing the rioting, btw) has just recently made it more difficult to do one thing I could have done to satisfy you with information. Or perhaps that would have been the case since 9-11.

After 9-11, our church volunteered people to guard local mosques and Islamic schools. I offered, on the grounds that you take your buttheads where you find them. I appear to have underestimated my fellow Americans. If I have done anything recently that makes me ashamed of myself, it was thinking that was necessary.

Anyway, try the Muslim curriculum in California and see if you think a similar curriculum about Christianity would fly. And if not, why is the Muslim curriculum going forward? Where are the usual establishment clause folks?
2.28.2006 8:16pm
SLS 1L:
Aubrey - I'm pretty sure that the usual Establishment Clause folks think this is an attempt to help people develop understanding and tolerance of a minority group, not an attempt to prosyletize Islam or send the message that Muslims are superior to practicioners of other religions. Given the social context in which we find ourselves, a similar curriculum involving Christianity would be a blatant attempt to prosletyze and make the non-Christian minority feel uncomfortable.
2.28.2006 8:22pm
Richard Aubrey (mail):
SLS. Easy to say. In fact, I had pretty much put that together as the excuse. Smoother than my construction, though.

Now, the question is whether you believe that or you're parodying the excusers.

Among other things, a week's immersion in anything would be considered excessive.

The excuse, whether you meant it as a parody or not, might be less of a hoot in, say, Iowa. But you have to remember that California's famous diversity means there may well be not many Christians in those classes. So that means there may be a lot non-Christians stuck with whatever they get from society about that odd sect of whackjobs. And no week-long immersion curriculum to help them, either.

How many Hindus are there in California? Do they get a weeklong immersion curriculum? Didn't think so.

Noop. Special pleading. PC, and a look over the shoulder for the same thing that the Boston Phoenix referenced when they explained why they declined to run the 'toons.

There ought to be a red light that blinks on the retina when the brain figures a person is saying something nobody else believes. Could believe. Finds hilarious.
2.28.2006 8:40pm
Defending the Indefensible:
Paddy O.:

I think there is a distinction between political conservativism and religious conservatism (just as there is a distinct meaning of judicial conservatism). Context is important. Then again, the label may actually be meaningless in some sense because it has been extended to cover so many disparate things at different times.

But this is largely a point that has been made by others, that modern "religious conservatives" are not particularly religiously conservative either. But if you have a long enough historical view, Christianity is less conservative than Judaism or Zoroastrianism. None of which is to say anything about the merits of any one sect or religion compared with another, which is something that requires a lot more introspection than labels can possibly do justice.
2.28.2006 8:43pm
SLS 1L:
Aubrey - Wikipedia says California's population is 75% Christian (slightly below the U.S. average of 80%, but still very high), so there are likely to be plenty of Christians in these classes. I don't see how the rest of your objections address the question of whether it's an establishment clause violation, rather than just a bad idea. Do you think it's an attempt to prosyletize Islam? If it were, then the EC folks would be very upset, especially since a fair number of us are actually atheists who would be very unhappy if our children converted to Islam.
2.28.2006 9:02pm
byomtov (mail):
"Why yes, Sisk, I see that in II.E of your Colorado Law Review article, which begins on page 1050 [hint! hint!], you've explained why you don't believe that claims brought by Catholics and Baptists tend to be weaker on the merits than those brought by members of other religions or sects. I find your answers unpersuasive. Here's why . . . "

So we are expected to read everything Sisk has ever written before daring to raise issues concerning this article?
2.28.2006 9:35pm
Richard Aubrey (mail):
SLS. No doubt true. But it's even more true of Michigan, although you won't find that proportion in Dearborn.

So we don't know for sure what percentage of kids in that school have no formal education about Christianity or Hinduism. But all they're going to get is Islam. So the education issue is bogus. Or they would be teaching it all. They're not.

I believe in education, including about religion. The week's immersion in Islam and zilch for anything else doesn't fit my idea of good education. I enjoyed comparative religion, including the undergrads' favorite, "Ritual Subincision Among The Arunta" but as a matter of personal opinion, I'd suggest keeping it until high school.

The establishment clause has been used to do a number of stupid things, such as the issue--so far unaddressed--of getting crosses and writing off of old rocks, get Christian-themed material off bulletin boards, shut down prescribed prayer before school events (the curriculum is prescribed, including Muslim prayers) and so we have a pretty good idea of what the establishment clause folks think, except suddenly it all doesn't apply when a school takes taxpayer money to do such an intense curriculum abut one and only one religion.

From which one draws conclusions skeptical about the professed motivations of the establishment clause champions.

There have been cases in California where the schools have finessed the opt-out choice that is available for parents in certain circumstances. I'd be interested in whether that applies here and whether the schools are being honest about it.

I don't think EC champions, atheist or not, are going to give too hoots about any religion but Christianity. So far, there's been no evidence of it.

I can't see why a curriculum similar to this but about Christianity must necessarily be prosyletizing, if this is not. But let's ask a hypothetical question: What if some of the kids decided to convert to Islam after this class? Would that be evidence that this is proselytizing? Let's think about a similar Christian curriculum. If some of those kids decided to convert to Christianity, would that be evidence of proselytizing? Would one be more important than the other? Can conversions follow and still have the class be considered not proselytizing?

EC champions share, in my experience, in the multi-cultural world where all cultures are perfectly wonderful except ours which is perfectly vile. Thus, anything bad that happens to the traditional American values is good and anything by which that is facilitated is also good. So it's difficult to for those folks, including EC champions, to apply the same thinking to Islam as they would to Christianity.

My view of this is that the fundamental subconscious thinking that goes on here, even among atheists, is that Christianity is a religion, really. The other stuff is for show and tell, and isn't that cute? You're a Muslim? How very interesting!! Substitute the Jewish religion, or Hinduism, or atheism, or Wicca. At some level, only Christianity generates the sense of threat because only Christianity convinces even atheists that it is a real religion. That EC champions are only concerned about Christianity is a backhanded compliment to Christianity.

Now, you can ruin my thesis by listing chapter and verse about EC champions trying to rein in overt free exercise of other religions when the state is involved to one extent or another.

Go ahead. Cyberwhatsit is cheap.
2.28.2006 9:48pm
CaDan (mail):
Is it just me, or is the OP pretty much content-free?
2.28.2006 10:39pm
Marcus1 (mail) (www):
My four thoughts:

1. Where is this conventional wisdom? The conventional wisdom is that courts are secular and anti-religious, doing things like striking "under god" from our pledge of allegiance and outlawing prayer in schools. You're saying the conventional wisdom is that our courts are overly pro-Christian? Seriously?

2. Essentially, Sisk's argument glosses over the fact that a person's religion is directly connected to the content of their discrimination claims. From his rhetoric you would think this was akin to a finding that blacks tend to lose more often in land disputes. Really, it's much more akin to discovering that young people win less often in age discrimination claims.

3. The default explanation for why a group of people tends to lose their cases in court would be that the law does not support their cases. This is not to say they are more litigious, though. For instance, gays may be less successful in equal protection cases than blacks, with out implying that courts dislike gays or treat them differently, or that gays are more inclined to sue people. This would happen under a single legal standard which differentiates between suspect and nonsuspect classes.

4. In all likelihood, Baptists or Catholics are more aggressive in their discrimination claims than minority religions, exactly because of their majority status. On this very blog we hear Christians suggest that minority religions should offer special respect for Christianity because of its status as a majority religion. Many Christians strongly believe that this should be a Christian nation. There are virtually no minority religions trying to entrench their own religious views.

In sum, of course the religious majority is going to have a lower success ratio in their claims that they are facing discrimination. If they didn't, it would strongly indicate that judges were treating them differently.
2.28.2006 10:56pm
Anon_Anon_Anon:
byomtov said, "So we are expected to read everything Sisk has ever written before daring to raise issues concerning this article?"

No, I'm suggesting that perhaps you should read the articles Sisk is discussing. Is it really such a difficult concept?
3.1.2006 2:18pm