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[Greg Sisk (guest-blogging), March 2, 2006 at 10:15am] Trackbacks
Do Traditionalist Christians Lose in Court Because They Present Marginal Religious Liberty Claims (Explanations Part Three)?

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.

Eric Muller (www):

"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."
Is this not something that could be coded and controlled for in a study?
3.2.2006 11:42am
Mr. X (www):
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.

You have the raw data. We (the readers) do not.

Public funding brings public regulations. When a "church-related institution" (read: not a church) provides a publicly-funded welfare program or otherwise enters into the public sphere, it doesn't get to thumb its nose at the law.

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.

Yes, the fact that the Catholics and Baptists want an exception from labor or discrimination law goes "to the legal merits of the claim." What the hell else would?

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.

Frankly, because regulation and anti-discrimination law protect the rest of us from Catholics and Baptists. Claims that a publicly-funded church-run welfare program should be able to deny protections to its employees or beneficiaries are categorically different from claims that a religious group should be able to practice their religion in peace.

Public money comes with strings. Always has, always will. If a church wants to take the money, that church shouldn't bitch and moan about the strings that are on it after it's taken the money.
3.2.2006 11:47am
Justin (mail):
Professor Sisk, I think your argument's weakness can be made significantly more transparent if you were more transparent. Let's replace "traditional" with "politically conservative" and see what we get. After all, there's no significant place in America where Christians are the minority.

However, the Catholics and Baptists who resort to legal action just as likely may be located in discrete areas less hospitable to POLITICALLY CONSERVATIVE 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 POLITICAL spectrum falls closer to the [POLITICAL] middle. And remember some of these are defensive claims by involuntary (not self-selecting) parties to suit.

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 DISAGREEMENT to the POLITICAL values expressed by POLITICAL CONSERVATIVES and a subjective preference for the present-day priorities of MAINSTREAM POLITICS.

I'll respond to your questions in the next post.
3.2.2006 11:54am
Sydney Carton (www):
"Frankly, because regulation and anti-discrimination law protect the rest of us from Catholics and Baptists. Claims that a publicly-funded..."

Who said anything about publicly funded?
3.2.2006 12:07pm
Justin (mail):
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?

Why? Because the Constitution has a 14th Amendment, we live in the modern welfare state, and the regulatory state isn't going anywhere. These are political values, not religious values. So too is "law and order" btw.

The Constitution specifically does not require, and indeed prevents, adherence to the "loyalty to American democracy" when that democracy tramples upon certain rights, including religious rights. But not necessarily political rights. What many posters here are saying is that you're talking about political rights...the rights of schools, hospitals, and charitable administers of government funds to discriminate, participate in politics, etc. - things that do not get to the heart of either prevention of "establish"ing religion or the free exercise of religion.

Your response is simply to reject this - so long as a political ideology is either made by a religious entity or made in the language of religion, it automatically gets transferred into simply "free exercise". This is anathemic to a Constitution that is specifically one of "powers limited by rights" and that deals with "rights perpetually in conflict." We allow the hajib to be worn in the public place because the constitution's preference for "law and order" and "democratic loyalty" are weak compared to its preference for "free exercise" in that context. We don't allow the Church to fire the pregnant female doctor because the government's decision to protect those women is not opposed by anything that can rationally be considered a free exercise issue in the context of a hospital.

You then ask "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?"

But that's not what's happening. Let's play the transparency game again. Rephrase the question:

"Should we not be suspicious of the rather convenient (and downright dangerous) argument that the scope of CONSERVATIVE POLITICAL PREFERENCES neatly dovetails with and is calibrated to MAINSTREAM political preferences?"

No. When all we're talking about is political preferences, then the mainstream triumphs unless there's a constitutional right involved. Conservative political preferences are OFTEN mainstream political preferences, and thats why conservative christians only bring political cases in at the margins - nobody's asking the Catholic Church, the largest landowner in America, to ITSELF submit to antidiscrimination laws, and almost all regulation in terms of sexuality, morals, and violence comes on a straight line between LIBERTERIAN and CONSERVATIVE CHRISTIAN views, even though there are other concepts of sexuality, morality, and violence. But when you lose political, and you don't have a serious free exercise argument (or, obviously, an establishment argument), you lose. There's nothing dangerous about that. What's dangerous is what you propose - that we should transform the 1st amendment into a political tool to fight the culture wars, requiring the Constitution to take a stand on such wars. As a politically pro-choice individual who thinks Roe v Wade was wrongly decided, it is your view that is dangerous - more than Griswald and Roe put together.
3.2.2006 12:11pm
Justin (mail):
Sydney,

Mr X was clearly referring to the topical example of whether Bush's plan of publicly funding religious charities was legal in light of statuory and constitutional antidiscrimination laws.
3.2.2006 12:13pm
WB:
If you're still responding to comments, I'd like to see a bit more explanation of the three proxies for merit that you argue were built into your study.

I understand the published opinion rationale, but I'm not convinced that the other two merit proxies respond to the argument that, as you put it (very well, I might add) 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."

Why should this inference not apply equally to religious expression claims as to others? Not all religious expression claims are equally reasonable, and mainstream society is (I suppose without having data) more hospitable to the reasonable religious expression demands of mainstream believers than to others.


As to your introduction in which you complained that "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", I would respond that this is what blog commenters do. If I were a non-anonymous professional colleague of yours, I would read the literature and investigate my initial suppositions about your study before publishing an objection

But I am not your professional colleague, and I think of blog comments as more like the questions that students might ask of their professors during or after class. You volunteered to talk about your published research, I have a few questions and visceral reactions to it, and the beauty of this format is that if you answer my questions I can better internalize the benefit of your research and apply it to my preexisting assumptions. I'm genuinely curious and would like to hear more about what you have to say against the idea that mainstream believers' litigation claims are more likely to be outliers.

That said, the tone of some of the comments is more in the attack mode than the question mode, and I think that people who attack have a greater responsibility to support their arguments. There's a difference between asking "what is your response to my unschooled intuition" and saying "my unschooled intuition trumps your research and renders your claims incredible." The former is a legitimate question, especially in this format.
3.2.2006 12:14pm
Bob Bobstein (mail):
Prof. Sisk-- do you disagree with the SC's rationale in Washington v Davis? Do you think that disproportionate impact should be considered strong evidence of discriminatory intent in religious freedom and racial discrimination cases?

Washington dealt with the differential impact of a police dept. policy. If we take the court losses of any given group as evidence of bias, does that not provide an incentive for, or in a study give undue weight to, the views of the most extreme and litigious groups?

Also, my $.02, I understand the rationale that you offered as to why you set your argument out as you did, but the thing about the blogosphere is, people expect responses quickly. On this blog, bloggers routinely post in comment threads. The comments feature seems to imply a conversation. It seemed to me that by yesterday, comments on your post were universally negative, in part because criticisms went unaddressed. Your disclaimer that you intended to get to responding later doesn't seem to have sufficed to have altered people's entrenched expectations of how blogging works.
3.2.2006 12:15pm
CJColucci (mail):
OK, now we see where this is going. It will become apparent tomorrow that Prof. Sisk simply has a different view of the legal merits of certain kinds of religious claims than, say, judges. Since Sisk must, self-evidently, be right and the judges must, equally self-evidently, be wrong, there must be some explanation for the error. It can't just be that they have a different view of the legal merits because that isn't interesting and, if it's a difference of views, the judges might be right and Sisk might be wrong. So what is the answer? Ah ha! Statistics show that judges decide certain types of cases differently from the way Prof. Sisk would. They also show that certain types of people bring more of those sorts of claims. Must be something about the judges' reactions to the type of folks who bring those claims. QED.
3.2.2006 12:16pm
AF:
"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."

The reason commentors focused on this question is that it is the obvious null hypothesis that must be, and has not been, disproven: That the likelihood of winning a legal case depends on the legal merits. Sisk's proxies for the merits -- case type, free expression v. establishment, and whether the decision was published -- are woefully inadequate. In fact, he admits that his data fails to capture variation in the nature of the cases brought:

"[T]he 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 . . . ."

Thus, Sisk admits that his study begs the question. Do claims to religious exemptions from social welfare regulations and anti-discrimination laws have equal merit as other religious claims?

Sisk obviously thinks so. But he needs to make the argument, not accuse those who disagree of displaying "little more than a subjective aversion to the cultural values expressed by traditional religionists." By Sisk's own admission, the statistical exercise he has led us through does nothing to answer that central question.
3.2.2006 12:22pm
Tyrone Slothrop (mail) (www):
Could it be that Catholics and Baptists are more likely, for whatever reason, to be overconfident about their chances of success, and thus are more likely to pursue losing claims? One might suppose that adherents of faiths that are much more in the minority might feel more marginalized, and thus might decline to pursue their claims unless those claims are very strong, whereas as Catholics and Baptists might act in the opposite way.
3.2.2006 12:25pm
Dan28 (mail):
<blockquote>
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?
</blockquote>
There are lots of answers to that question. And all of them involve a conversation about the <i>merits </i>of these legal claims, rather than some bizarre suggestion of judicial bias. Conservatives tend to lose those conversations about the merits of their claims, and as a result I can understand wanting to avoid that conversation by instead whining about bias. But this hasn't gotten you anywhere; this study does nothing to advance that debate.

<blockquote>
Also, my $.02, I understand the rationale that you offered as to why you set your argument out as you did, but the thing about the blogosphere is, people expect responses quickly. On this blog, bloggers routinely post in comment threads. The comments feature seems to imply a conversation. It seemed to me that by yesterday, comments on your post were universally negative, in part because criticisms went unaddressed. Your disclaimer that you intended to get to responding later doesn't seem to have sufficed to have altered people's entrenched expectations of how blogging works.
</blockquote>

Exactly. It's like he was asked a direct question in court, and he refused to acknowledge it at all, and instead continued methodically through his talking points. The question of "is the bias because of personal prejudice" is hardly of interest when you have been hit with a seemingly devastating critique of your claim of bias. The implication was that he didn't really have a very strong response to that criticism. In fact, he has no response to that criticism.
3.2.2006 12:33pm
Dan28 (mail):
<blockquote>
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?
</blockquote>
There are lots of answers to that question. And all of them involve a conversation about the <i>merits </i>of these legal claims, rather than some bizarre suggestion of judicial bias. Conservatives tend to lose those conversations about the merits of their claims, and as a result I can understand wanting to avoid that conversation by instead whining about bias. But this hasn't gotten you anywhere; this study does nothing to advance that debate.

<blockquote>
Also, my $.02, I understand the rationale that you offered as to why you set your argument out as you did, but the thing about the blogosphere is, people expect responses quickly. On this blog, bloggers routinely post in comment threads. The comments feature seems to imply a conversation. It seemed to me that by yesterday, comments on your post were universally negative, in part because criticisms went unaddressed. Your disclaimer that you intended to get to responding later doesn't seem to have sufficed to have altered people's entrenched expectations of how blogging works.
</blockquote>

Exactly. It's like he was asked a direct question in court, and he refused to acknowledge it at all, and instead continued methodically through his talking points. The question of "is the bias because of personal prejudice" is hardly of interest when you have been hit with a seemingly devastating critique of your claim of bias. The implication was that he didn't really have a very strong response to that criticism. In fact, he has no response to that criticism.
3.2.2006 12:33pm
Dan28 (mail):

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?

There are lots of answers to that question. And all of them involve a conversation about the merits of these legal claims, rather than some bizarre suggestion of judicial bias. Conservatives tend to lose those conversations about the merits of their claims, and as a result I can understand wanting to avoid that conversation by instead whining about bias. But this hasn't gotten you anywhere; this study does nothing to advance that debate.


Also, my $.02, I understand the rationale that you offered as to why you set your argument out as you did, but the thing about the blogosphere is, people expect responses quickly. On this blog, bloggers routinely post in comment threads. The comments feature seems to imply a conversation. It seemed to me that by yesterday, comments on your post were universally negative, in part because criticisms went unaddressed. Your disclaimer that you intended to get to responding later doesn't seem to have sufficed to have altered people's entrenched expectations of how blogging works.


Exactly. It's like he was asked a direct question in court, and he refused to acknowledge it at all, and instead continued methodically through his talking points. The question of "is the bias because of personal prejudice" is hardly of interest when you have been hit with a seemingly devastating critique of your claim of bias. The implication was that he didn't really have a very strong response to that criticism. In fact, he has no response to that criticism.
3.2.2006 12:33pm
Dan28 (mail):
ack! my apologies for the triple post.
3.2.2006 12:35pm
Bob Bobstein (mail):
AF: "Sisk admits that his study begs the question. Do claims to religious exemptions from social welfare regulations and anti-discrimination laws have equal merit as other religious claims? Sisk obviously thinks so. But he needs to make the argument."

I'm not sure Sisk does think so. Sisk definitely thinks that in an ideal world, the law would reflect his preferences, and those of the groups he's picked out. But given his resolute avoidance of the legal merits issue, I suspect that he realizes that the law isn't on his side.

I think that Sisk needs to argue for changes in the law, armed with evidence that the laws as they are written disproportionately impact Catholics and Baptists. Drawing that conclusion on the basis of his study is not immune to criticism, but it would at least be stronger than the claim of judicial bias. He'd then run into the problems that Dan28 identifies-- that arguing for these changes might not be a political winner (I don't think it's as stark as Dan thinks).

Also, AF, you make an important point that the null hypothesis is that claims lose because the that's what the law directs. Raising that hypothesis, though, is taken by Sisk to be evidence of bias ("a subjective aversion to the cultural values expressed"). He really is like a conservative stereotype of a leftist sociology prof that way.
3.2.2006 12:46pm
finec:
AF writes:


That the likelihood of winning a legal case depends on the legal merits. Sisk's proxies for the merits -- case type, free expression v. establishment, and whether the decision was published -- are woefully inadequate.


AF is exactly right.

This is the traditional "crappy proxy" defense to endogeneity problems. Sisk comes up with three variables that are intended to capture case merit, which have no assurance of actually doing so -- hence, "crappy proxy." Sisk then shows us that using his crappy proxies has no effect on the results, which, being crappy, they wouldn't. This still does not move us closer to the desired framework of a natural experiment.

AF brings up some other points worth reading, in which Sisk basically makes my point about his proxies being crappy.

Oh, and gotta love that "amazing alacrity" bit.

Look, when you're trying to prove that the null is violated, the strong presumption is toward the null. There are very good philosophical reasons for this type of conservatism in empirical research.

When the researcher starts asking us to give him the benefit of the doubt (and accusing those who do not do so of bias) he loses >90% of his qualified audience. Those who disagree with him are unconvinced; those who agree find his work useless in advancing their claims.
3.2.2006 12:48pm
byomtov (mail):
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?

Because they have a rational basis? Or because they do not address religious issues? Are we really supposed to take seriously the argument that safety and zoning regulations or wage laws somehow interfere with free exercise? These are frequent claims.

Or that requiring Catholic institutions to comply with anti-age discrimination statutes (another claim appearing more than once) somehow violates the church's religious principles? Or that requiring participation in Social Security interferes with free exercise? (A Baptist claim)

These are ludicrous claims, rightly rejected. and note that the fact that they are made more than once affects the outcome of the analysis. Repeat a meritless claim several times and you distort the data substantially.

Here are some more, taken from Sisk's data:

Rejecting free exercise (with subsidiary establishment) challenge to exercise of jurisdiction by state labor relations board over labors relations between parochial school and lay teachers

Convicted income tax evader and religious educator objected to condition of probation that she not teach young people

Rejecting equal protection/free exercise challenge by private religious school to high school association's bylaw making a transferring student eligible for athletics only if the transfer was from a private to a public school

Rejecting free exercise defense of religious university against application of age discrimination statutes

Rejecting free exercise claim of religious organization whose beliefs compel providing employment to persons in need regardless of immigrant status for exemption from compliance with immigration statute

Rejecting free exercise claim of inmate that correction officer destroyed religious property by cutting a string with religious significance on which inmate's identification card was hanging

Rejecting free exercise (with subsidiary establishment entanglement) challenge by church to EEOC investigation of discharge of church employees

Rejecting church's free exercise challenge (with subsidiary establishment entanglement claim) to inclusion under state workers' compensation statute



Sisk apparently endorses the notion,implicitly repeated often in these claims, that the religious organization is essentially a law unto itself, simply not subject to ordinary rules, even when those rules have absolutely nothing to do with religious practice.

His acceptance of that premise is his entire argument against the idea that Baptist/Catholic claims do not succeed because they lack merit. All the jargon, talk about p-values, specifications, etc., are smoke. Reject that premise and his argument is hollow.
3.2.2006 12:48pm
Mr. X (www):
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?


Because of Lochner.
3.2.2006 12:50pm
Mr. X (www):
Bravo to byomtov for bringing out the data.

Now I'd be curious to see if the "minority" religions make similar claims. I'm guessing that they don't.
3.2.2006 12:54pm
J..:
Religious Liberty in the Courts: Are Traditionalist Christians Now the Disfavored Group?

From the begining of the piece, I figured this claim would be the central tenent. That is where the reader was led with the data.

But, it appears that the aim of the article is more "the welfarist, regulatory, and anti-discrimination agenda[] of the moment." Which is fine, of course. But, now we'd need a normative argument, not a quantitative one. Which just means that we've move away from the opening claim because, I think, it cannot be defended on its on grounds. Again, this is fine, but it is a bird of a different feather.
3.2.2006 12:54pm
Justin (mail):
Errr, Lochner? :)

You do no that, if it were still good law, would have supported Sisk's claim, right?
3.2.2006 12:56pm
Christopher Cooke (mail):
Professor, I enjoyed your article as thought-provoking, but I think your post betrays a conservative political bias. As evidence, I cite:

"the welfarist, regulatory, and anti-discrimination agendas of the moment"

From that comment alone, I am reasonably confident that I know where you come out on, for example, whether a Catholic hospital that accepts state funds can be required to follow a state anti-discrimination law that prohibits discrimination on the basis of sexual orientation. While some might consider this an interesting legal issue that depends upon state and federal establishment clause precedent, you probably think that requiring the hospital to adhere to such laws violates the free exercise clause. You also probably think trying to impose such restrictions is unwise as a matter of social policy.

Although others might applaud you for it as a sign of candor, I think you do yourself a disservice by openly incorporating your biases into your writings, as it makes your article much less persuasive. On the one hand, you want to say "the statistics don't lie, and they show a bias" but, on the other hand, no one trusts your analysis because you wear your politics on your sleeve, so openly for all to see. Since we don't have access to all of your information, why should we trust your analysis of it?
3.2.2006 1:00pm
Mr. X (www):
I meant Lochner being overruled.
3.2.2006 1:00pm
MikeWDC (mail):
Every time I see the term "traditionalist Christian" I want to grab the screen and ask "Why? Why are Methodists, Lutherans, Presbyterians, and Episcopalians not "traditionalist Christians"? Or "orthodox Christians"? What is the possible justification for this categorization? Does Prof. Sisk realize that these Christian denominations have been practiced--and practiced in this county--for hundreds of years, and it is off-putting, if not insulting, to have them referred to as non-traditional?

And don't tell me it's just for convenience. The differences among religions is the subject of this paper. Terminology matters.
3.2.2006 1:01pm
Proud to be a liberal :
Sisk has also not responded to my questions about whether there the anti-discrimination laws and other regulatory laws challenged did in fact impinge in any way on the freedom to exercise religion. He also has not addressed my point that his statistics are distorted by separating out Southern Baptists and Catholics from general Christians.

Asking a priest to stop his car at a red light does not impinge on his exercise of religious freedom, even if he is going to church.

Thus, the fact that someone is religious is not alone a basis for an exemption from public safety/health/anti-discrimination laws.

How does a law prohibiting age discrimination in employment, which applies to Catholic hospitals and universities impinge on the free exercise of religion by the Catholic church? As far as I know, there is nothing in the Bible that requires age discrimination in employment. Is age discrimination any different from laws barring race discrimination? (Bob Jones University used to claim that its theology required discrimination based on race &the Supreme Court held that it could lose its tax exemption as a result).

Also, Title VII, for one, provides an exemption to religious organizations to allow them to discriminate on the basis of religion in religious activities. If Sisk is concerned about anti-discrimination statutes, his first concern should be to address the statutes, which can be changed by legislation.

The instance of the pregnant, unmarried school teacher also does not address the religious question. Is there in fact a religious basis for firing unmarried pregnant school teachers? What about the men who help create the pregnancies? Sex without marriage may be a sin -- but then are all sinners to lose their jobs? Does not firing pregnant women promote abortion -- which would enable them to keep their jobs? (Query what would Jesus do?)

There is today an article in the Boston Globe on the application of Massachusetts anti-discrimination law to Catholic Charities. Over a number of years, Catholic Charities has placed 13 of 720 adopted children into the homes of same sex partners. These 13 children were all older children who were hard to place and had not been able to find homes before. Now the religious organization has decided not to do same sex adoptions, resulting in resignations from its board by Catholics who are concerned that hard to place children may be denied homes -- and that placing hard to place children in homes of same sex parents is better than not giving them any home. The issues are:
1. should Catholic Charities be given public funding to do adoptions if it refuses to comply with the non-discrimination laws of Massachusetts?
2. should Massachusetts exempt religious organizations from the anti-discrimination statutes so that Catholic charities and similar groups can do adoptions and discriminate?
There is also a prospect for litigation down the road, in which Catholic charities could challenge the non-discrimination law as impinging on the free exercise of religion.

In fact, there is no federal law barring discrimination on the basis of sexual orientation &few states &localities have such laws. Therefore, the burden of complying with such laws is fairly limited -- albeit that most such states and localities are "blue states."

Many blue states such as Massachusetts, Rhode Island, New York and Pennsylvania do have high numbers of Catholic residents.
3.2.2006 1:04pm
Bob Bobstein (mail):
Christopher Cooke: "Although others might applaud you for it as a sign of candor, I think you do yourself a disservice by openly incorporating your biases into your writings, as it makes your article much less persuasive."

Let's get cynical.

Y'know what, it just doesn't matter. There will always be a job at an advocacy group awaiting people willing to try to demonstrate that Right-Wing Values are Under Attack from Elites. (The left wing is trying to catch up, and probably will soon enough). Sisk isn't writing to enlighten, explain, or convince; he's signaling his loyalty to the cause.

Nobody, nobody, nobody is willing to defend Sisk's methodology. And it doesn't matter. Look for it to be written up in the American Spectator or whatever sometime soon.
3.2.2006 1:09pm
Josef Ratzinger:
Lest there be any confusion about where Prof. Sisk is coming from, consider his views about John Kerry:

"When one of our own, someone who claims to be one of us and in communion with us, rejects the foundation for any good society or concept of social teaching -- the preeminent right to life -- we have a moral duty to speak up without equivocation or apology. That duty is an inescapable and nondelegable one for each of us. As we have learned so painfully, if a priest abuses one of Christ's little ones, we all in the Catholic communion are responsible. If the catechism of our children is so ineffective that the sanctity of human life could be misperceived by any congregant as a "doctrine of faith" to be dismissed as unimportant to public life, we all in the Catholic communion are responsible. If a professing Catholic seeks high office while repudiating the Church's witness to life as the primordial right in any society, we all in the Catholic communion are responsible. All of us as Catholics should be ashamed."
3.2.2006 1:13pm
Justin (mail):
Josef, while Greg Sisk's Mirror of Justice post makes him come off as an extreme radical, I think his argument deserves to be discredited on the merits. The only possible benefit I think this has to the conversation is to point out that Professor Sisk's general inability to seperate political preferences from religious values seems to make it more difficult to "trust" him on the merits - in that sense, the post has significant validity.
3.2.2006 1:20pm
SKlein:
This discussion reminds me in more ways than one of Maggie Gallgher's stint discussing gay marriage. Both experiments have accomplished nothing other than to turn the proponents into human pinatas. Since neither Mr. Sisk nor Ms. Gallagher are inarticulate or foolish, it suggests to me that blogs may not be the best froum for this sort of thing. What I'm not sure of is, what is "this sort of thing?"
3.2.2006 1:26pm
AF:
Although neither Mr. Sisk nor Ms. Gallagher are inarticulate or foolish, they both presented deeply flawed arguments in a public forum. Commentors pointed out the flaws, as they were invited to do. And neither Sisk nor Gallagher were successful in responding to those criticisms. I don't see the problem, other than with Sisk's and Gallagher's arguments.
3.2.2006 1:32pm
Mr. X (www):
Perhaps there is a hope that, by virtue of having many people look at them, the arguments will become good and valid.

Either that, or Professor Volokh likes to bump the traffic by having conservative caricatures post for a week. They bring their partisans with them. Similarly, the regular readers send around links to their sane friends to provide a laugh.

It may be a smart move, but it drops the overall quality of the blog precipitously.
3.2.2006 1:38pm
Clayton E. Cramer (mail) (www):

Professor Sisk, I think your argument's weakness can be made significantly more transparent if you were more transparent. Let's replace "traditional" with "politically conservative" and see what we get. After all, there's no significant place in America where Christians are the minority.
When I lived in the San Francisco Bay Area some years ago, one of the newspapers (can't remember if it was the Chronicle or the Mercury-News) did a survey and found that the Bay Area's population was roughly divided into thirds: one third who were Christians or Jews; one third who were New Age, Muslim, Buddhist, or other Asian religions; one third who were agnostics or atheists. And does it show, when you actually live in the Bay Area.
3.2.2006 1:46pm
finec:

Both experiments have accomplished nothing other than to turn the proponents into human pinatas.


SKlein:

Perhaps the tone here could be moderated a bit. I think part of the frustration of the commenters comes from the contrast between the general high quality level of the blog (which is why we read it, after all) and the research presented here.

As far as the quality level of the commenters' arguments is concerned, if I had to referee this paper, I would be perfectly comfortable starting out with a few comments from this blog. A lot of the commenters deal with this type of research (or close) on a professional basis every day.

I think Sisk should treat this exercise as a free referee report -- it ultimately strengthens him, if he uses the output correctly. Until today, he hasn't shown a lot of respect for the fair criticism we have offered.

So yes, this is the "right forum."
3.2.2006 1:54pm
WB:
Recent comments demonstrate my point, I think. There's no need to attack Professor Sisk as a "partisan" or whatever. If his arguments don't convince you, state your objections or ask for more explanation. If his responses don't convince you or aren't sufficiently responsive, judge accordingly. But don't flame on the comments thread.

His views on John Kerry are irrelevant. My sense of this "discussion" is that he's discussing his research, and comments should accordingly be about (1) whether and to what extent it proves anything, and (2) if one can draw any conclusions from his research, what those conclusions might be.

Attacks like some of the above are counterproductive. If you've given up on the conversation, leave (i.e. stop posting comments or stop reading the blog). Don't stay in the room, put your fingers in your ears and start shouting (i.e. spewing venom in the comments thread).
3.2.2006 1:59pm
Clayton E. Cramer (mail) (www):
Dan28 writes:


There are lots of answers to that question. And all of them involve a conversation about the merits of these legal claims, rather than some bizarre suggestion of judicial bias.
What makes judicial bias a "bizarre suggestion"? You think that once a judge takes an oath of office, all of his personal feelings disappear, and he decides every case entirely on its merits?

Remember that judges (with a few exceptions, such as Justice of Peace in some states) are lawyers. Lawyers go to law schools. Law schools, both students and faculty, are overwhelmingly liberal. So why should you expect judges to not be liberal? If there were a large number of conservative lawyers who went to first-tier law schools, yeah, I suppose that Republican presidents would appoint a lot of conservative lawyers to federal judgeships. But there being only a tiny supply of conservative lawyers....

And no, just because a lawyer is to the right of the bunch that comments on Volokh Conspiracy doesn't make a lawyer a conservative. Seriously: do any of you lawyers know lawyers who don't believe that the courts should require states to recognize gay marriage? Do you know even one? Do any of you lawyers know lawyers who don't believe that gun ownership should be very, very strictly licensed? Do any of you lawyers know lawyers who don't believe the ACLU's falsification of establishment clause history? I doubt it.
3.2.2006 1:59pm
Justin (mail):
"When I lived in the San Francisco Bay Area some years ago, one of the newspapers (can't remember if it was the Chronicle or the Mercury-News) did a survey and found that the Bay Area's population was roughly divided into thirds: one third who were Christians or Jews; one third who were New Age, Muslim, Buddhist, or other Asian religions; one third who were agnostics or atheists. And does it show, when you actually live in the Bay Area."

I'm not saying I don't believe you, I'm just saying I don't believe both you and the survey. And even so, that gives Christianity a plurality in one city in the United States. But once again, I don't believe this in the sense of it being hearsay...I don't believe the underlying truth meant to be asserted.
3.2.2006 2:02pm
Justin (mail):
Remember that judges (with a few exceptions, such as Justice of Peace in some states) are lawyers. Lawyers go to law schools. Law schools, both students and faculty, are overwhelmingly liberal. So why should you expect judges to not be liberal?

I agree with your first statement. And your second.

Your third statement is truthiness. While a majority of those at Harvard, Yale, etc. may be liberal, the large majority of most state law schools in red states are, not shockingly, conservative. Or to put it a different way: Most Republican Congressmen go to law school. [Logic of CC] QED, most Republican Congressmen are liberal.

Judges, law degree or no, get to be judges in one of two ways. Either they're appointed by someone who got elected and has vetted them for jurisprudence, or they're elected. Thus, the question isn't even about law school, in the same way "most Scalia /Kozinski /Luttig /Easterbrook /Alito /Wilkerson " clerks are also not liberals. Maybe in a world where the civil service exam picks the judges, you'd have a point, assuming you could grind out the details and defend it with facts. But here, you're making the wrong inquiry, and are left with nothing.
3.2.2006 2:08pm
Hotel Coolidge:
regular readers or not. The people critizing Sisk are doing it in a very snide manner with little in the way of argument on the facts. There is a difference between bias and opinion. Or is all leftist thought biased as well? So only the bland are unbiased?
Josef Ratzinger.. Where is Prof Sisk coming from in that paragraph? The fact that it is so clear to you, I would posit is evidence of your own unwillingness to look at the argument rather than your "take" on the argument . You assume that all "right/left thinking peoples would be what: horrified? Bemused? What pre-determined place is Sisk coming from? In your opinion, that is.
3.2.2006 2:09pm
Justin (mail):
Whoops, part of my response to Clayton Cramer got deleted.

It should have said:

I cannot prove that most state judges went to state schools, of course, but that would be my own "truthiness" impulse.

Regardless, you're asking the wrong question (go on to the Congressmen QED point)
3.2.2006 2:10pm
SKlein:
Finec--my human pinata comment wasn't addressed to the quality or tone of the critiques. I just think that the end result is an echo chamber, rather than a real dialogue. You could probably put these posts on Daily Kos and get pretty much the same comments, and that is untypical of this site. And I don't think that the explanation is as simple as the weakness of the argument.
3.2.2006 2:10pm
Justin (mail):
Hotel Coolidge, winner of the 2006 Pat Robertson Award for Unintentional Irony
3.2.2006 2:11pm
Bob Bobstein (mail):
I am of the view that if the discussion's tone has gone bad, it's because it is one-sided. I am of the view that the conversation is one sided because there is no defense of Prof. Sisk's methodology or his conclusions. I would definitely welcome a defense.

Sisk has Mssrs. Carton and Cramer as almost-defenders, but they are criticizing some claims made by commentors, rather than supporting Sisk's scholarship. (This is in no way a criticism of Carton or Cramer-- it's something that should happen in comment threads).

Mr. Cramer, while the suggestion of bias of judges may not be inherently bizarre, I submit that it is bizarre to treat it as the explanation of first resort, ahead of the null hypothesis that they lose because the law says so. Also, I submit that the legal profession is not quite as monolithic as you suggest, and that the cartoon liberal lawyers you describe have not been appointed to be federal judges in many years.
3.2.2006 2:11pm
frankcross (mail):
This is the problem with open comments. We have an olio of comments, some irrelevant, some cheap shots, some know-nothings, various ad hominems. Many apparently kneejerk responses by people who don't like the conclusions. But there are some legitimate methodological questions here too. To me the big problem is difference between population percentages and cases brought. The fact that a Baptist is hundreds of times less likely to even have a free exercise claim than a Muslim or Native American or Jew, tells me that our society of today rarely subjects them to discrimination, as compared to minority religions.
3.2.2006 2:13pm
Justin (mail):
"And I don't think that the explanation is as simple as the weakness of the argument."

Why not? Here you have a blog that has at least a good balance of left/right viewpoints, if not a dominant right viewpoint, amongst commentators. This isn't DailyKos, this is Volokh Conspiracy. Dale Carpenter was able to spark interesting discussions on his views, and Orin Kerr and Eugene Volokh do it all the time. Even David Bernstien, whose posts tend sometimes toward the emotional rather than the logical, gets much stronger defending. Why is Greg Sisk not getting a signficant amount of people actually defending his positions? It sure seems weak to me - remember, even Bush's AUMF has had serious defenders in Orin Kerr's series of posts.
3.2.2006 2:14pm
Marcus1 (mail) (www):
>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.<

What does that mean? What are the types of cases?

I'm thinking, for instance, that crosses on public property are occasionally struck down, because municipalities like to engage in a lot of shenanigans to get crosses on public property. So Baptists and Catholics like to sue/get sued on the issue, and they tend to lose. This is something minority religions have no power to do.

Basically, there is a constant tension between the establishment and free exercise clauses, which is by far strongest when the politically dominant majority religion is at issue. With minority religions, establishment is simply not an issue.

Did you separate out all cases where there was an establishment concern?

If there is anything remarkable about your data, it has to be in relation to Muslims. The fact that they would lose more often would be much stronger evidence of discrimination, since they are such a small minority.
3.2.2006 2:27pm
CJColucci (mail):
Seriously: do any of you lawyers know lawyers who don't believe that the courts should require states to recognize gay marriage? Do you know even one? Do any of you lawyers know lawyers who don't believe that gun ownership should be very, very strictly licensed? Do any of you lawyers know lawyers who don't believe the ACLU's falsification of establishment clause history? (Clayton Cramer)

1. Yes, lots of them.
2. Ditto (myself included, depending on what "very, very strictly" means)
3. Yes, lots of them.

And I practice in NYC.

Much of what passes for "liberalism" in lawyers, by the way, is devotion to the idea of process itself. And in many lawyers that devotion is not so much political or ideological as it is professional self-interest. Considering who in society generally needs more process, the hypertrophy of process will likely have "liberal" results, at least in the short term. But then the interests who can afford lawyers will learn how to exploit it for their own ends, leading to more "conservative" results. All in the service of the real goal -- full employment for lawyers.
3.2.2006 2:29pm
WB:
Without a better idea of who the commenters are, I don't think the number or percentage of defenders is that probative.

I'm not defending Sisk because I'm more interested in his response to critiques than I am in the commenters' responses to any defenses I might raise. Sisk has given the issue some thought and done some research and volunteered to respond to comments. Other commenters... I really couldn't care less, unless any of you have done similar research or have authorities you can point to. Without that, you're just disembodied floating opinions.
3.2.2006 2:31pm
MikeWDC (mail):
It's hard to know what to make of Prof. Sisk and his article. Buried on page 20 he states:

Therefore, at least pending further study, there is some evidence that adherents to Islam, apparently alone among the non-Christian religious faiths, may encounter greater resistance in pressing claims for religious accommodation in federal courts.


Really? (I know, others have brought this out in other comment threads, but it bears repeating.) Then what do we do with statements in the abstract:
Based upon a recent empirical study of religious liberty decisions in the federal courts, the proposition that minority religions experience a significantly lower success rate was found to be without empirical support
and
the myth that members of outsider faiths fail at a disproportionate rate proves to be only half of the story. In fact, counter to the popular narrative, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, proved to be the ones who enter the courthouse doors at a distinct disadvantage. (my emphasis)


That last sentence is especially rich, "notably Roman Catholics and Baptists"? What he is actually saying is "adherents to traditionalist Christian faiths, meaning Roman Catholics and Baptists." For the purposes of this emperical study, the definition of "traditionalist Christian" is "Roman Catholic or Baptist." But defining this on the onset would reveal:

1) that what he calls "mainline protestants" and "general Christians" did just as well as all religions and minority religions in the courts, and

2) that to get these sensational phrasings in the abstract, he's defining "Methodists, Lutherans, Presbyterians, and Episcopalians" as not being among "traditional Christian believers" or "the Christian faithful" or "those whose religious practices and values fit most comfortably within the mainstream Christian tradition."

It's generally not that great to make the author into a human pinata, but Sisk's article is borderline. It's not a left-right issue; it's an academic honesty issue.
3.2.2006 2:34pm
Clayton E. Cramer (mail) (www):
Justin writes:


I'm not saying I don't believe you, I'm just saying I don't believe both you and the survey. And even so, that gives Christianity a plurality in one city in the United States. But once again, I don't believe this in the sense of it being hearsay...I don't believe the underlying truth meant to be asserted.
1. The San Francisco Bay Area isn't one city it is a major metropolitan area with about 10 million people.

2. Here's an article that seems to be relying on more recent census data:
Those who pass through St. Gregory's welcoming doors on Sunday mornings come from the same group targeted by "seeker" churches: the growing number of people who report that they have no religious affiliation at all. In the San Francisco Bay Area and parts of the Pacific Northwest, that number is 90 percent of the population, according to the latest census.
I'm not sure what census they are referring to; I suspect this is one of the private surveys of religious belief, not the U.S. census.

I don't find this hard to believe. Where I lived in Rohnert Park, in the Bay Area, church attendance was typically about 10% of the population. Now, that's not an indication of what percentage identify themselves as a member of a religion, but nationally, weekly church attendance is typically 40%, and those who identify themselves as Christians are typically above 80%, so figure about a 2:1 or more ratio of belief to weekly attendance.
3.2.2006 2:37pm
Justin (mail):
"Without that, you're just disembodied floating opinions."

Didn't you just attack others for not taking Greg Sisk's arguments seriously apart from Greg Sisk himself? Have you ever taken part in a workshop? Did you expect all the faculty participants to have done their own research? Should we disband these workshops, because you don't like "floating opinions"?

Other responses:

I ditto CJC's 3 responses to Clayton Cramer's 3 unserious questions. In fact, I know a lawyer who thinks Israel's right to exist is based on divine right and that the establishment clause not only doesn't apply to the states but solely stands for the proposition that, while adopting their own religion is fine, Congress cannot dictate to the states what religions to choose. He also supports laws mandating gun ownership, so long as there is a pauper's exception. He practices in NYC.
3.2.2006 2:40pm
Marcus1 (mail) (www):
MikeWDC,

I'm with you -- I think that if there is any big news here, it is that Muslims lose in disproportionately high numbers. I can't think of any great reason why this should be the case, unlike with fundamentalist Christians where their "free exercise" claims are often in direct conflict with others' right against an established religion.

Still, though, when the nature of the claims is so inextricably linked to the religion of the claimant, I don't see how you really draw anything from these numbers.
3.2.2006 2:42pm
Clayton E. Cramer (mail) (www):

While a majority of those at Harvard, Yale, etc. may be liberal, the large majority of most state law schools in red states are, not shockingly, conservative. Or to put it a different way: Most Republican Congressmen go to law school. [Logic of CC] QED, most Republican Congressmen are liberal.
1. I would be startled to hear that most state law schools are not liberal controlled. I am aware of at least recent one discrimination suit by a conservative law professor at University of Montana who alleged that he was prevented from teaching constitutional because he was a conservative. When I see law professors from University of Idaho law school being interviewed, they are always on the left end of the spectrum. (Perhaps the conservatives don't want to talk to the press.)

2. The sort of lawyer who becomes a Congresscritter is probably not typical of lawyers. Republican Congresscritters are also often not lawyers. Newt Gingrich, for example, has a PhD in History. John Tower's PhD was in economics. Bill Frist is an MD.
3.2.2006 2:42pm
Duncan Frissell (mail):
BTW, most commentators should be aware of the fact that institutional Catholicism is "hard left" and not "conservative". Most bishops and the National Council and most members of religious orders and most colleges hold views that would have to be considered hard left on every topic save one.

So no comments on "conservatism". Mel Gibson and Opus Dei are conservative. Most senior American Catholics aren't.
3.2.2006 2:46pm
Clayton E. Cramer (mail) (www):

I ditto CJC's 3 responses to Clayton Cramer's 3 unserious questions. In fact, I know a lawyer who thinks Israel's right to exist is based on divine right and that the establishment clause not only doesn't apply to the states but solely stands for the proposition that, while adopting their own religion is fine, Congress cannot dictate to the states what religions to choose. He also supports laws mandating gun ownership, so long as there is a pauper's exception. He practices in NYC.
I'm shocked. My experience of lawyers is the crowd that dominates these comments threads. Obviously, this lawyer you know would never be appointed to a judgeship with views like that.
3.2.2006 2:46pm
Clayton E. Cramer (mail) (www):
Marcus1 writes:

MikeWDC,

I'm with you -- I think that if there is any big news here, it is that Muslims lose in disproportionately high numbers. I can't think of any great reason why this should be the case, unlike with fundamentalist Christians where their "free exercise" claims are often in direct conflict with others' right against an established religion.
Gee, it couldn't be judicial bias, could it?
3.2.2006 2:47pm
Richard Aubrey (mail):
Methodists, Lutherans, Episcopalians, and Presbyterians are not considered TODAY as "traditional" or "traditionalist". Among other things, they're going to ber invisible in a couple of decades. The PCUSA has lost half its membership since 1965.

Today, the big deal in these churches is gay marriages and gay ordinations. It's supporting the WCC and NCC whose political positions are far from traditional. It's goofy Green and anti capitalism.
Or, I should say, the leadership of the churches is able to manage this despite being in the minority in terms of views.
Whatever the proud history of these denominations, their leadership has taken them far from "tradition", which is probaby what Sisk had in mind when he left them out by implcation.
3.2.2006 2:49pm
Duncan Frissell (mail):
I would guess that the Federal Government is the largest landowner in America.
3.2.2006 2:49pm
Clayton E. Cramer (mail) (www):

BTW, most commentators should be aware of the fact that institutional Catholicism is "hard left" and not "conservative". Most bishops and the National Council and most members of religious orders and most colleges hold views that would have to be considered hard left on every topic save one.
If you mean abortion, I think you are forgetting a couple of other issues where institutional Catholicism isn't "hard left": same-sex marriage; birth control; and I suspect obscenity. Of course, the institutions and lay Catholics tend to differ on quite a number of matters, including use of birth control.
3.2.2006 2:50pm
byomtov (mail):
I think Sisk deserves a bit of pinata treatment. I read his posts, and paper, as ideology hiding under a pretense of scholarship. Consider this:

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.

This is nonsense. How does requiring churches to comply with anti-age-discrimination or zoning laws reflect an "aversion to the cultural values expressed by traditional religionists?" What deep religious principle is offended by requiring church employees to participate in Social Security?
3.2.2006 2:57pm
Justin (mail):
I got bored of Cramer recalling things or "intepreting" political oped references to secondhand sources, so I did my own research.

According to The San Francisco Chronicle, DECEMBER 2, 2002, MONDAY, FINAL EDITION, SECTION: BAY AREA; Pg. A15, 27 percent of Marin County (the most liberal county in the bay area) residents considered themselves Protestant. Jews make up 13 percent, and Catholics make up somewhere in between (the article isn't clear, but it's between 13-23). "Other" received 23, not 33, and "no preference/none" received 15, not 33.

Oddly enough, only 57 percent of respondants stated they "believed in God", less than both the number of people associated with this or that religion, and less than the 80 percent of people who stated that "other religions provide equally good paths to God"

So, in the most liberal county in America, a plurality of people are Christians and a majority of people are either Christians or Jews. Moving on.
3.2.2006 3:01pm
Colin:
Frankcross, re: "olio",

What an apt description of the commentors on this blog. A beautiful word, to boot.
3.2.2006 3:03pm
Marcus1 (mail) (www):
Clayton Cramer,

>Gee, it couldn't be judicial bias, could it?<

That's what I was trying to say. Yes, it's a much more plausible explanation for the discrepancy in regard to Muslims than it is for Catholics or Baptists.

But I'm just guessing. The evidence is pretty weak to prove anything.
3.2.2006 3:05pm
Sydney Carton (www):

BTW, most commentators should be aware of the fact that institutional Catholicism is "hard left" and not "conservative". Most bishops and the National Council and most members of religious orders and most colleges hold views that would have to be considered hard left on every topic save one.


I don't know if I'd call the Bishops "hard left." As one who reads at lot of Catholic blogs (like Catholic and Enjoying It or Open Book), I know that there's a lot of discussion about why Bishops aren't more forecful in defending orthodoxy from erroneous and sometimes openly heretical dissenters (like Voice of the Faithful, or Catholics for a Free Choice). But you won't find a bishop who says that abortion is just another legitimite reproductive choice, for example. Certain Bishops aren't as forceful in defending marriage from gay activists, but there are obvious reasons as to the reason why.

Anyway, I'd delve into the data if I had more time, but unfortunately I do not. If others here have, and think the data isn't good enough to support Sisk's conclusions, then that's something to consider. But I do want to caution people, especially those hostile to religion or Christianity in general, not to automatically conclude that in general the claims of Catholics or other Christians who engage the judiciary are somehow defective. In fact, that sort of thinking seems to go a long way towards making Sisk's point: one has seen that claims by Chrisitans were defeated in the past, so tomorrow's story about their new claim is treated as part of a similar trend and is necessarily rejected as well. It lends to a laziness of the mind in treating fairly the claims of legitimiate parties not only in the court system. And given the hostile reaction of certain people towards the very IDEA of this kind of survey, I have to wonder if there are those who really do pidgenhole Christians as making losing claims in the courts.
3.2.2006 3:09pm
Justin (mail):
"I'm shocked. My experience of lawyers is the crowd that dominates these comments threads. Obviously, this lawyer you know would never be appointed to a judgeship with views like that."

No, he wouldn't, unless extremely religious, pro-Israel Jews took over the country. I, on the other hand, have no chance of being appointed to a judgeship by a Republican.

"would be startled to hear that most state law schools are not liberal controlled. I am aware of at least recent one discrimination suit by a conservative law professor at University of Montana who alleged that he was prevented from teaching constitutional because he was a conservative. When I see law professors from University of Idaho law school being interviewed, they are always on the left end of the spectrum. (Perhaps the conservatives don't want to talk to the press.)"

I was under the impression that law STUDENTS graduated from law school, not law professors. We can all agree that a majority of law professors are liberal - the reasons for remaining hotly contested - but I didn't think that was the point you were trying to make, and I fail to see the relevance if it is.

"I don't find this hard to believe. Where I lived in Rohnert Park, in the Bay Area, church attendance was typically about 10% of the population. Now, that's not an indication of what percentage identify themselves as a member of a religion, but nationally, weekly church attendance is typically 40%, and those who identify themselves as Christians are typically above 80%, so figure about a 2:1 or more ratio of belief to weekly attendance."

Ummm, unless, the wealthiest, most liberal county in California is less religious than the rest of America?

"The sort of lawyer who becomes a Congresscritter is probably not typical of lawyers. Republican Congresscritters are also often not lawyers. Newt Gingrich, for example, has a PhD in History. John Tower's PhD was in economics. Bill Frist is an MD."

Pointing out exceptions does not disprove the rule, particularly when the rule clearly says "in general". Also, as mentioned multiple times and ignored by you, the average judge is "not typical of lawyers" either, for various already stated reasons that would indicate a conservative judiciary.

Richard Aubrey makes the illuminating point that "traditional Christians" are defined politically, not by belief in a particular God or religious ethos. This seems to unintentionally support my original point.
3.2.2006 3:09pm
SLS 1L:
There seem to be some misconceptions going around about Professor Sisk's demarcations of religious categories. The categories were (see pp. 1035-1036):

Catholics (6.3% of observations)
Baptists (3% of observations)
General Christian (25.2% of observations, consisting of 16.5% that were identifiable only as Other Christian and a bunch of other categories that represented a very small number of cases each (1.7% mainline Protestants, 1.1% self-identified fundamentalists, etc.))
Orthodox Jewish (7.2%)
Non-Orhodox Jewish (4.2%)
Muslim (14.5%)
Native American (5.7%)
Other (14.9%)

The only religions that saw a statistically significant effect were Catholic and Baptist. Professor Sisk's decision to refer to these two denominations collectively as "traditionalist Christians," rather than simply "Catholics and Baptists" is very questionable, but doesn't speak to the underlying merits of the study.

Ultimately, it seems the real issue with the study, as with so many other debates about discrimination, is defining what constitutes discrimination. When I was in college I ran into a lot of people who argued that "institutional racism" was rampant in society, and upon further questioning it always turned out that by "institutional racism" they meant "disparate impact" - the contention was that disparate impact was racism per se.
3.2.2006 3:11pm
Justin (mail):
Sydney, it appears what you read are not "Catholic blogs" but "politically conservative" blogs that approach politics from an Opus-Dei-styled Catholicism bent. The three blogs you've referred to as enjoying are all blogs that are purely political - they do not seem to have any significant discussion of nonpolitical biblical, social, or educational Catholicism.
3.2.2006 3:35pm
DK:
Prof. Sisk wrote:

Within the hour after my first posting on Monday, a few commentators moved with amazing alacrity ... well before any evidence had been examined and without any support in the literature.


Welcome to the blogosphere, Professor Sisk! Eugene, you might need to work on your training for new guest bloggers. We wouldn't want them to expect 100% slow, meticulously researched and footnoted responses.
3.2.2006 3:36pm
Bob Bobstein (mail):

MikeWDC: "It's not a left-right issue; it's an academic honesty issue."


Yep, that nails it. Especially at a hyperpartisan time like this, these sort of crowd-pleasing but unscholarly efforts should be criticized.


Sydney Carton: "If others here have, and think the data isn't good enough to support Sisk's conclusions, then that's something to consider. But I do want to caution people, especially those hostile to religion or Christianity in general, not to automatically conclude that in general the claims of Catholics or other Christians who engage the judiciary are somehow defective."


Absolutely true. Though I'd've worded it differently, as relatively few self-identify as "hostile to religion". Just like Michael Belleseille's (sp?) discredited research doesn't demonstrate that the Second Amendment confers an individual right to bear arms. (I'm personally not big into Second Amendment as conferring a collective right, but the point stands).

It's not fun to see one's own views "advanced" by weak scholarship. Some of Sisk's critics, like finec, have been at pains to point out that Sisk addresses interesting issues, even if his study doesn't generate much in the way of insight.
3.2.2006 3:38pm
Richard Aubrey (mail):
Justin. Not even close.

The denominations I spoke of are also really thin on the old theological verities. I believe that's for two reasons, one being that liberal theologians are going the other way and the other being that taking the old verities seriously would make the political posturing more difficult.

So non-traditional religious views are both attractive to the newthinkers for their own sake, and also useful for the social and cultural posturing.

Also, I would strongly object to calling the issues I mentioned in the first post "political". They happen to be the supposed results of heavy theological thinking, not to mention a kind of all-slobbering love, which anybody who disagrees must not have. The usual, agree with me or be a low-life, knuckle-dragging hater of whatever the issue is.

I don't expect you'd think a church which pushed something you liked would be "political". And the folks who push the stuff are at least aware enough of their market to couch everything in theospeak.
3.2.2006 3:54pm
CaDan (mail):
Continuing the tradition of lack of content for over three days!
3.2.2006 4:02pm
Justin (mail):
I'm keenly aware that Reverand Sekou and Father Kooperkamp, along with others who I have somewhat less respect for (Sharpton, Jackson) are political figures, not religious ones, thank you Aubrey.
3.2.2006 4:11pm
Daniel San:
For purposes of criticism of Sisk's blog, it is less accurate to characterize "traditionalist Christians" as POLITCALLY CONSERVATIVE than to describe them as socially conservative or morally conservative. We are talking about people who want to prohibit certain practices from their members, their churches, their institutions, and their property. (For purposes of a free exercise claim, it is not really relevant whether they want to use the government to impose these choices on other people or institutions).

If a church does not hire gays or lesbians for certain positions, that is a conservative choice, but not a political choice. When someone outside of that position decides to use the law to change or punish that choice, that is political. Conservative institutional decisions can be, as Sisk notes, threatening to a society that values 'tolerance' above most other values.

In the discussion of discrimination against Muslims, no one seems to be noting that their level of 'tolerance' tends to be lower than that of Roman Catholics or Baptists. Perhaps that is a factor in decisions against them and against Islamic institutions.
3.2.2006 4:12pm
Duncan Frissell (mail):
Those of you who are actually interested in the subject might like to see that about 57% of the population hold what could be considered traditional Christian religious views. I took the Pew Forum Survey on Religion and Politics which has a helpful breakdown of religious subgroups and identified the Christians likely to hold more traditional religious views. The right-hand column is mine.

Note that not all Christian traditionalists are politically conservative. Black &Latino Protestants are more likely to be politically liberal.

This breakdown helps to explain why (for example) some 55% of the population believes that homosexual behavior is "always wrong".

Critque of arguments about "Religion and Society" should start with some understanding of the incidence of different religious bliefs.1

Pop Trad

ALL 57.1%

Evangelical Prot 26.3%
Traditionalist Evang 12.6% 12.6%
Centrist Evangelical 10.8% 10.8%
Modernist Evangelical 2.9%

Mainline Protestant 16.0%
Traditionalist Mainline 4.3% 4.3%
Centrist Mainline 7.0%
Modernist Mainline 4.7%

Latino Protestants 2.8% 2.8%
Black Protestants 9.6% 9.6%

Catholic 17.5%
Traditionalist Catholic 4.4% 4.4%
Centrist Catholic 8.1% 8.1%
Modernist Catholic 5.0%

Latino Catholic 4.5% 4.5%

Other Christian 2.7%
Other Faiths 2.7%
Jewish 1.9%

Unaffiliated 16.0%
Unaffiliated Believers 5.3%
Secular 7.5%
Atheist, Agnostic 3.2%

Source: Fourth National Survey of Religion and Politics, Bliss Institute University
of Akron, March-May 2004 (N=4000).
3.2.2006 4:15pm
BobN (mail):

Seriously: do any of you lawyers know lawyers who don't believe that the courts should require states to recognize gay marriage?


I can't even think of a United States President who doesn't think that bans on same-sex marriage are unconstitutional under the current constitution. Of course, Dubya's no lawyer...
3.2.2006 4:24pm
Duncan Frissell (mail):
Bob,

relatively few self-identify as "hostile to religion"

Have you been reading VC comments for very long? Many may not "self identify" but many are easily identified.
3.2.2006 4:30pm
MikeWDC (mail):
I appreciate the clarification about the categories. The article and blog posts never seem to explain why they've separated out Catholics and Baptists, dubbed them "traditionalist" and made them the focus of the article's speculation. Especially if the non-traditionalist Christian catagory is simply a catch-all for coding purposes and to serve as a reference variable. Still, Sisk's throwing around alot of really loaded language without defining what he's talking about.

So let me get this clear: this study indicated Catholics, Baptists, and Muslims lose more religion cases, at a statistically-significant level, than "General Christians," but Jews, Native Americans and "Others" do not.

Sisk acknowledges, though minimizes, that the Muslims' numbers punch a hole through his conclusions. Though interestingly, Muslims were involved in more than twice as many cases as Catholics, and more than four times the number as Baptists, despite being a miniscule fraction of those groups. Could the number of cases brought/defended, in relationship with the number of adherents of a religion in the U.S., have some statistical relationship to the outcomes?

Better not go there.

PS. Daniel San, noone's asserted there's discrimination against Muslims. That's exactly the point: Look at the cases on the merits! And what I said had nothing to do with the merits or the reasons why, it had to do with putting this statement in an abstract:
the proposition that minority religions experience a significantly lower success rate was found to be without empirical support

and this statement on Page 20 of the article:
Therefore, at least pending further study, there is some evidence that adherents to Islam, apparently alone among the non-Christian religious faiths, may encounter greater resistance in pressing claims for religious accommodation in federal courts.
3.2.2006 4:40pm
Justin (mail):
Daniel San, I disagree.

First of all, to the degree people's desire to not pay taxes is self-motivated, then most political positions can be redefined as not such.

Second of all, your argument fails to take into account that Christian organizations that do so discriminate want to act and compete in the marketplace - so they want to be able to have hospitals, but not to provide birth control. These are external situations that render their rights political rather than internal ones that render their rights individual choice.

Third of all, your argument fails to take into account that a Christian church discriminates against gays, abortion, unwed pregnant women, etc. as a statement of moral disapproval - which means there is a speech component to their actions. This speech component - tho not protected by the first amendment - is indeed political.

Finally, your argument assumes that its own, internal institutions are by definition not political. Though Hayek and Nozick may agree, this is clearly the minority position about what is and what is not politics.

The desire for the right to treat OTHERS in a certain way is, however, by definition almost, political. To the degree traditional Christians and Baptists seek to interact with those that aren't traditional Christians and Baptists - by opening Hospitals, administering government funds, competing in marketplaces, and running schools open to nonmembers - they are inviting themselves into the political sphere in the same way Archer Daniel Midlands does when it wants to take positions on immigration laws to maintain its supply of migrant workers.
3.2.2006 4:47pm
Sydney Carton (www):

Sydney, it appears what you read are not "Catholic blogs" but "politically conservative" blogs that approach politics from an Opus-Dei-styled Catholicism bent. The three blogs you've referred to as enjoying are all blogs that are purely political - they do not seem to have any significant discussion of nonpolitical biblical, social, or educational Catholicism.


Ok, here's where I call B.S on you. You really have no idea what you're talking about, and frankly, you should know better. I've learned a lot about Catholicism on Open Book and Mark Shea's blog, especially on highly technical theological issues. Your conclusion after a cursory glance is downright laffable. You should be embarassed. I don't know what bogeyman you think you're bringing up by saying that these are "Opus-Dei" style Catholic blogs, since that charge would be news to both the bloggers and the commentators, but perhaps it reflects a surprise on your part that Catholic theology is for the most part not very well aligned with liberal social agendas. There's this view by marginally religious or a-religious people that Religion should have little to do with the society as a whole, as if it's something to bring out on Sunday only to be put back once the football game starts. But when you read a blog in which people actually do try to live AS Catholics, or as Christians, you shouldn't be surprised that the greater social aspects are also discussed and the teachings of the Church applied. We're not people living in a vacuum, and in fact, it is IDIOTIC to try to separate one's identity as a Catholic from one's place in the greater social and political atmosphere.

"Oh no, at that Catholic blog, they're talking about gay marriage! They're not really Catholic, they're just a bunch of political conservatives." Do you know how dumb that sounds? Sheesh.
3.2.2006 4:58pm
Cornellian (mail):
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.

Who are these "traditional religionists?" Evangelicals that no one had ever heard of until recently (in historical terms) or Anglicans that have been around since before the Revolution? If the former, what exactly makes them "traditional?"
3.2.2006 5:55pm
CJColucci (mail):
Cornellian:
You haven't been listening, or you don't get the code. What makes these historically upstart offshoots of Protestantism "traditional" while the mainstream branches are not, is that the offshoots are theologically right and the main branches are theologically wrong -- at least in the view of the "traditionalists."
3.2.2006 6:06pm
MarkW (mail):
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?

Suppose I stipulate, for discussion's sake only, that requiring certain religious believers to obey anti-discrimination laws, etc., against their will, constituted a serious violation of religious freedom. I'd like to suggest that judges might still have a legitimate, non-prejudiced reason--indeed, a reason rooted in concern for religious freedom--for denying the claims of the religious believers.

Suppose that the "claims of religious conscience" were held to be sufficient grounds for exemption from compliance with some legal requirement. The problem that would arise is that such an exemption would give rise to "opportunistic" claims for the religious exemption. For example, suppose parents who were Christian Scientists were exempt from prosecution in the event that they failed to get medical attention for their very sick child, who subsequently died (as happened in several well-publicized cases in the 1980's and '90's). If that were the case, any parent prosecuted for failing to get proper medical care for their child could claim to be a Christian Scientist.

Courts would seem to have three options for dealing with claims for exemptions based on "claims of religious conscience."

1) They could accept all such claims

2) They could deny all such claims

3) They could scrutinize anyone making such a claim to determine if the claimant was sincere or opportunistic in his/her claim.

It seems to me that #1 would not be a realistic option, as it would mean allowing the law to become a dead letter. The choice for a court would then be between #2 and #3. I'd suggest that while #2 might create some infringements of religious liberty, #3 would as well. Wouldn't it be a pretty serious infringement of religious liberty for courts to sit in judgement of the sincerity of people's religious beliefs? Mightn't it be a reasonable position that for courts to engage in such judgement would be a more severe infringement than that entailed by, say, requiring someone who sincerely believes that God demands that they be a racist to obey anti-discrimination laws?
3.2.2006 7:12pm
SLS 1L:
MikeWDC:
So let me get this clear: this study indicated Catholics, Baptists, and Muslims lose more religion cases, at a statistically-significant level, than "General Christians," but Jews, Native Americans and "Others" do not.
I'm not sure that's right. On page 1036 of the article, he writes:
[T]hose 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.
I'm not confident of what that means, but it sounds like he's saying he did not find a statistically significant effect. That's different from a statistically significant finding of no effect.
3.2.2006 7:33pm
Cornellian (mail):
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.

Frankly I'm astounded at the assertion that people claiming to practice some kind of traditional Christianity also have "a greater tendency to resist application of various social welfare regulations..." And that would be in the chapter of the Bible in which Jesus endorses free market, Chicago school capitalism right?

How's this for a theory - Christians lose more often (assuming they do) because they have the power to push the envelope in ways that members of other religions do not. For example, Roy Moore gets himself elected chief justice of Alabama, then proceeds to slip a 5 ton granite monument of the 10 Commandments into the courthouse rotunda in the dead of night, on his own initiative. The inevitable Establishment Clause action ensues, the monument is ordered removed, Moore refuses to comply with the federal court order, Moore is booted from office, now Moore tours the state with his 10 ton graven image / vanity project while campaigning for governor. Now imagine the Jewish, Hindu or Moslem equivalent of Roy Moore and tell me which US state would elect that person Chief Justice of the state.
3.2.2006 11:58pm
Dan28 (mail):

It seems to me that #1 would not be a realistic option, as it would mean allowing the law to become a dead letter. The choice for a court would then be between #2 and #3. I'd suggest that while #2 might create some infringements of religious liberty, #3 would as well. Wouldn't it be a pretty serious infringement of religious liberty for courts to sit in judgement of the sincerity of people's religious beliefs? Mightn't it be a reasonable position that for courts to engage in such judgement would be a more severe infringement than that entailed by, say, requiring someone who sincerely believes that God demands that they be a racist to obey anti-discrimination laws?


It may seem strange, but this in fact what courts do. In fact, Congress required them to do this, in RFRA. If a law restricts a sincere religious practice, the state must show both that there is a compelling governmental interest in the law as applied to the group, and that the law the group as little as possible. That's why the Native American church (btw, a Christian church) can use peyote. I would say that the court is pretty deferential to claims of religious sincerity. Unless you're claiming to be a disciple of the church of crack, with the religious belief that people should smoke crack, they probably aren't going to question your faith.
3.3.2006 12:46am
MarkW (mail):
It may seem strange, but this in fact what courts do. In fact, Congress required them to do this, in RFRA. If a law restricts a sincere religious practice, the state must show both that there is a compelling governmental interest in the law as applied to the group, and that the law the group as little as possible.

However, RFRA was overturned, at least as a restriction on state and local governments, in Boerne v. Flores.
3.3.2006 2:06am
dweeb:
MikeWDC,

Why are some denominations with long histories not termed orthodox or traditional? A quick look at how their doctrines have morphed in step with the popular culture over the past 40 years should make that obvious. The Anglican Communion is now on the verge of schism over the moves of the Episcopal Church. Now, in that dispute, which side would you consider traditionalist?


byomtov,

What is the rational basis for welfarist, regulatory and antidiscrimination law? Libertarians can offer a thoroughly rational argument against such laws. You say they don't address religious issues, but just what is and isn't a religious issue. There isn't an issue that someone can't find a religious text addressing. Justin spoke of a dichotomy between religious and political beliefs and issues. What separates them. Does a worldview have to involve a deity to be religious? In Gillette and other CO cases, the SC said no, it doesn't. What makes the statements "that government which governs least, governs best" and "There is no god but Allah" different? Both are beliefs about the nature of the universe. Neither is objectively provable in a scientific context. People have debated both, and fought wars over both.

You mention Baptist claims against participation in Social Security - why would their claims have less merit than Amish claims against SS participation, which have prevailed?

One problem with the tone of the discussion is that some participants are unable to restrain their palpable kneejerk hostility toward religion.

The comment about Muslims having a bad record in court is interesting - currently, they really don't need to resort to the courts often, with everyone falling over to demonstrate tolerance for them. Thus, only the more outlying claims would ever get to court. We see cities that have had substantial Jewish populations for years now cancelling rib cookoffs to avoid offending Muslims. All this has happened since 9/11, which raises the question - if Sisk is right, what is the possibility that decisions are swayed by the probability that that, if not accommodated, members of a given religion might resort to extremes? Let's face it, many people are convinced that our government is willing to set aside constitutional considerations to prevent terrorism, and the courts have in many instances, gone along with this. What is letting a religious institution ignore a few employment laws next to gutting the 4th amendment, if it prevents another 9/11?
3.3.2006 10:35am
David M. Nieporent (www):
Byomtov writes...
These are ludicrous claims, rightly rejected.
...thus illustrating Sisk's point.

If Byomtov wants to argue that Employment Division v. Smith was right as either a legal or policy matter, that's one thing. If he wants to argue that even accepting the RFRA standard, these laws should apply because there's a compelling state interest in doing so, that's one thing. But Byomtov's argument is simply, "I don't agree with these religious views, so I will denigrate them, or even deny they exist." The trend here, summing up the views of several commenters critical of Sisk, is:

(a) The plaintiffs don't really hold those religious views.
(b) Okay, maybe the plaintiffs do hold these views, but those aren't really "valid" religious views. (Several people above used the "Where in the Bible does it say that?" argument, as if they got to define for others what a correct interpretation of the Bible was. If a Baptist group thinks Social Security violates its religious beliefs, then it does. Period. If a Catholic organization thinks age discrimination laws violate its religious beliefs, then they do. Period. That doesn't end the legal discussion, but it ends the theological one.)
(c) Maybe they hold those views, but if I call them "political" views rather than "religious" ones, then those views don't really count in this discussion. (This one is Justin's specialty; he returns to it repeatedly throughout this thread.)
(d) Forcing people to comply with laws that contradict their religious views doesn't have anything to do with the free exercise of religion.
(e) Since I approve of these laws, the challenges deserved to fail, so that's just different. (Do I think that Sisk has to show that the cases were equally meritorious to show that differences in statistical outcomes show proof of bias? Absolutely. But many of the posters here are engaging in the opposite fallacy: asserting in conclusory language that the cases were not equally meritious, based solely on personal approval of the policies being challenged.)

The fact that people are actually denying that a particular group challenging a particular law has a religious argument goes a long way towards proving Sisk's point about bias. If some obscure South American sect thinks hallucinogenic tea is a religious requirement, well, who are we to question their views? But if some Baptist group thinks Social Security violates its religious beliefs, well, that's "ridiculous."
3.3.2006 10:02pm