Could it be that Catholics and Baptists raising religious liberty claims in the federal courts lose more often simply because they deserve to lose, as they present weaker legal claims justly turned back by the courts?
Within the hour after my first posting on Monday, a few commentators moved with amazing alacrity toward the assumption of merit-deficit on the part of Catholic and Baptist claimants, well before any evidence had been examined and without any support in the literature. Others more deliberatively pointed to the small shares of Catholic and Baptist claimants in our study, compared to their proportion in the general population. From this they drew the plausible inference that most mainstream believers have little need for court-ordered accommodation and thus the few who file suit may be outliers making more extreme demands.
However, the Catholics and Baptists who resort to legal action just as likely may be located in discrete areas less hospitable to traditionalist Christians, as what counts as the mainstream varies enormously by geography. Moreover, these claimants were compared not only to minority religious groups whose claims might be seen as more likely to raise vital objections to repression by a hostile society, but also with others whose position on the religious spectrum falls closer to the middle. And remember some of these are defensive claims by involuntary (not self-selecting) parties to suit.
We also should inquire whether the design of the study and the evidence from the data shed any light. So I turn to what some have insisted is an endogeneity problem, or what social scientists describe as questions of omitted variable bias or inadequate specification of the model. However framed, the issue is whether the less-successful claims raised by Catholics and Baptists were comparable in merit to those raised by others. Social scientists have not yet found the Holy Grail of an objectively determined and replicable measure of legal merit. Nonetheless, our study included three different, admittedly crude, proxies for claim strength or validity.
First, we included case-type control variables to ensure that any relationship discovered was not an artifact of a correlation between a religious variable and a particular type of case. As Donald Songer and Susan Tabrizi well explain, “integrated models will be incompletely specified unless they include the particular case facts that are most relevant for the type of cases examined.”
Second, because freedom of speech is one of the most vigorously protected constitutional rights, claims involving religious expression ought to be among the strongest religious liberty claims. When we separated out religious expression claims, our results remained stable.
Third, and most importantly, focusing upon published decisions provides a rough measure of claim quality. By examining published decisions, we actually biased our database in favor of decisions that raise highly visible, controversial, landmark, or difficult questions of religious freedom. The set of published opinions is likely to be skewed toward those cases that raised viable, as opposed to frivolous, claims.
We also have the raw data so that we might see the types of claims that Catholics and Baptists bring into the courts. As addressed yesterday, the diminished success of Catholics and Baptists may be attributed to their greater tendency to resist application of various social welfare regulations and anti-discrimination laws to church-related institutions, because judges regard such regulatory measures and civil rights laws as serving especially compelling public interests.
Some commentators have seized upon precisely this point, which they characterize as going to the legal merits of the claim. Such an appraisal of merit, however, shades into little more than a subjective aversion to the cultural values expressed by traditional religionists and a subjective preference for the present-day priorities of secular liberalism.
Why should the welfarist, regulatory, and anti-discrimination agendas of the moment be regarded as more impervious to claims of religious conscience than the old-style governmental interests of law and order and loyalty to American democracy that were invoked in days past to suppress minority religious groups? Should we not be suspicious of the rather convenient (and downright dangerous) argument that the scope of religious liberty for others neatly dovetails with and is calibrated to our particular political preferences? More responses to comments tomorrow.