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[Greg Sisk (guest-blogging), March 3, 2006 at 11:15am] Trackbacks
How Religious Liberty Claimants Fare in the Courts—Responding to the Critics and Closing Thougths:

During this past week, I've offered a series of thoughts about why traditionalist Christian (specifically Catholic and Baptist) claimants in religious liberty cases now appear to be the disfavored parties in court. Several responses to my postings offered thoughtful questions about methodology or provocative arguments about religious liberty. Other comments, salted with pejorative labels ("pseudo-science," "cartoonish") or impugning the researcher's motives or competence ("whining," "right-winger," "unscholarly"), were less analysis than sneering. To quote Martin Marty quoting William Paley: "Who can refute a sneer?"

The subject that received the greatest attention of course was whether traditionalist (or social-conservative) Christians are being treated unfairly in religious liberty litigation or instead are just getting what's coming to them. Here there was more consensus than might appear. First, most accepted the baseline finding that Catholic and Baptist claimants were significantly more likely to fail. Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims. In sum, despite sound and fury, the principal findings of the study emerged undisturbed.

A few voices wisely warned not to extrapolate from these findings to construct a general model of religious freedom in American society. Given the larger number of lawsuits filed by minority religionists compared to their proportion in the general population, they further suggested that the average Muslim or Native American is more likely to experience religious hostility in society than the average Catholic or Baptist. That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data.

In any event, our study forthrightly focused on religious liberty claims in court. Trends in judicial reception of religious liberty claims flow back into society and influence societal attitudes. And impartial and even-handed treatment by judges of claimants regardless of religious affiliation is an important value in itself.

Most critics parted ways with me on how to characterize the finding that Catholics and Baptists were less likely to succeed in court. I suggest typical claims by Catholics and Baptists—seeking exemption from anti-discrimination rules, licensing and regulatory requirements, etc.—were a shot right across the bow of the liberal ship of state. Critics retort that these anti-discrimination or regulatory provisions advance compelling public interests that admit to no exception. I respond that they are conflating the merits—and thus the scope of religious liberty—with ideological or cultural preferences. And 'round we go.

Two weeks ago, in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 2006 WL 386374 (U.S. 2006), the Supreme Court unanimously held that the Religious Freedom Restoration Act (FRFA) demands a "focused" and not a "categorical approach": "[T]he compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." Thus, when a religious sect makes sacramental use of a hallucinogenic substance, "mere invocation" by the government of a general prohibition on non-medical use of narcotics is insufficient to override it.

My vision of religious liberty denies presumptive power to any political agenda, of left or right, over claims of religious conscience. I expect that religious liberty claims by people of all faiths should receive a particularized judicial consideration and not be submerged beneath political platitudes about either "law and order" or "the equal opportunity society." An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty.

This vision fits comfortably with today's Supreme Court under RFRA and with such liberal stalwarts for civil liberties as Justices Brennan and Marshall a generation ago under the Free Exercise Clause of the First Amendment. That many today characterize the case for a robust, vigorous, and broadly-applied judicial protection of religious liberty as but mere conservative special-pleading speaks volumes about the evolution within elite society of attitudes toward religious values and tolerance of dissenting religious perspectives.

In closing, whether you find my research and analysis to be commendable or damnable, I am transparent about what I'm doing. For anyone interested in digging into the dataset, it always has been publicly available.

Tyrone Slothrop (mail) (www):
I guess I don't understand why you assume that litigants of all religious persuasions are equally likely to assess the strengths of their own claims. If one posits that Catholics and Baptists go to court with some overconfidence, then they would be less likely to abandon weaker claims. Likewise, if adherents of minority faiths go to court with the expectation that they will receive a less fair hearing -- even if that is, in fact, not true, then they will be more likely to abandon weaker claims. If so, the latter group would fare better than the former group, assuming that all possess claims of equal merit.

If you answered this already, I missed it, and I apologize for the redundancy.
3.3.2006 12:24pm
Justin (mail):
Up until now, you haven't been intellectually dishonest. But that's over now.

"In sum, despite sound and fury, the principal findings of the study emerged undisturbed.

People just accepted the empirics of your study because nobody was going to do their own empirical research to respond in a blog post. To say that because they did that, "the principle findings of the study emerged undisturbed" is absurd. I agree that given your parameters and methodology, the emprical results are probably accurate - you didn't flub the math part. However, the study was so flawed and designed to obtain particular results, that these numbers that nobody is disputing is irrelevant - the "principle findings" were rendered meaningless.


"Christians are being treated unfairly in religious liberty litigation or instead are just getting what's coming to them."

So everyone who is disagreeing with you just hates Christians. Not sure I buy that. [snark] I mean, as a Jew, I know I have to eat a Christian baby once a month and use their blood for matzah, but I don't necessarily LIKE it. [/snark]

"That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data."

So, the claims are INCREDIBLY different, and as such we cannot really compare the amount of claims at all (this would be unfair). But we can compare their rates of success - that's fine.

"In any event, our study forthrightly focused on religious liberty claims in court. Trends in judicial reception of religious liberty claims flow back into society and influence societal attitudes. And impartial and even-handed treatment by judges of claimants regardless of religious affiliation is an important value in itself."

Except impartial does not mean "same percentage of winning regardless of the merits"

Most critics parted ways with me on how to characterize the finding that Catholics and Baptists were less likely to succeed in court. I suggest typical claims by Catholics and Baptists—seeking exemption from anti-discrimination rules, licensing and regulatory requirements, etc.—were a shot right across the bow of the liberal ship of state. Critics retort that these anti-discrimination or regulatory provisions advance compelling public interests that admit to no exception. I respond that they are conflating the merits—and thus the scope of religious liberty—with ideological or cultural preferences. And 'round we go.

No. THEY were accusing YOU of conflating the merits with ideological and cultural preferences. Indeed, that's what " suggest typical claims by Catholics and Baptists—seeking exemption from anti-discrimination rules, licensing and regulatory requirements, etc.—were a shot right across the bow of the liberal ship of state" friggin means - it means you want Catholics and Baptists succeed not because you feel bad for them but because you want to change the Court's general understanding of the law in certain fields. In other words, you're upset that claims you find meritorious but the law routinely rejects fail in courts. That's a normative dispute, and a proper law review article addressing that would start, and end, with normative arguments about why your view should win. The "empirical argument" is simply a clever way to avoid that conversation, and it has no meaning upon itself - something you are essentially admitting in this final post, once its stripped down from all its arrogance.
3.3.2006 12:34pm
Justin (mail):
Oh, one last complaint. Stop playing the martyr. Nobody is finding your research "damnable". They're just finding your research "useless". There's a difference. Compare Stalin to Harry Browne.
3.3.2006 12:39pm
Justin (mail):
No, wait, one MORE complaint:

An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty.

Deregulation and liberterianism IS a policy goal. What you're stating is that whenever a group, claiming a religious purpose, wants to get out of government regulation, it should be allowed as such, whether that group is a church, a hospital, a criminal defendant, a school, or I'd imagine, a financial institution. It's a policy goal that can be defended on the merits, perhaps - surely people such as Nozick and Hayek have tried - but to act like what you're doing is apolitical is nonsense.
3.3.2006 12:42pm
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. (A post from yesterday.)

I love it when a prediction is confirmed so fast.
3.3.2006 1:00pm
Proud to be a liberal :
Mark Twain's aphorism that there are three kinds of lies: lies, damn lies, and statistics is relevant here. Sisk's article demonstrates that one can develop a statistical analysis to support one's position by selecting and characterizing statistics.

Sisk notes that the RFRA case required that the religious free exercise claim be based on a sincere religious belief. Yet, he includes in the "Catholic free exercise" group a significant number of cases in which a Catholic organization sought exemption from age discrimination claims. He has nowhere responded to the point that there is not even a prima facie argument that the Catholic Church has any sincere religious belief that is infringed by a law against age discrimination in university or hospital employment.

Sisk now concedes that few if any of the claims involving Southern Baptists or Catholics involved individuals who claimed their personal right to free expression was infringed. Instead, he focuses on claims by religious institutions that may not even involve sincere religious beliefs.

The case law is full of many recent cases in which conservative religious adherents won free speech and free exercise cases. Thus,students have prevailed against school administrators who punished them for wearing t-shirts saying "abortion is murder" or "homosexuality is a sin." Of course, if the individual was identified as a Christian but not as a Southern Baptist or Catholic, the case would not count for Sisk's purposes. Another reason why his statistical analysis is flawed.
3.3.2006 1:01pm
Bob Bell (mail):
Thank you for your presentation this week. I found it interesting.
3.3.2006 1:08pm
byomtov (mail):
most accepted the baseline finding that Catholic and Baptist claimants were significantly more likely to fail. Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims. In sum, despite sound and fury, the principal findings of the study emerged undisturbed.

I don't know that I agree with this. Let's leave aside the "merit" issue for the moment. In looking at the claims it strikes me that many, especially losers, appear repeatedly. This is particularly true in the employment area. If Catholic/Baptist claimants tend to repeat these claims to a greater degree than others then they will have a lower success rate than others, even though they are not being treated "unfairly." This is, I think, an important methodological point.

My vision of religious liberty denies presumptive power to any political agenda, of left or right, over claims of religious conscience. I expect that religious liberty claims by people of all faiths should receive a particularized judicial consideration and not be submerged beneath political platitudes about either "law and order" or "the equal opportunity society." An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty.

What of the obligation of the religious believer to establish that the claim is seriously based on religious conscience, and that religion is not simply a convenient way to avoid doing something the claimant doesn't want to do - pay taxes, comply with antidiscrimination statutes, obey zoning laws, etc. If you do not address this point you are simply allowing anyone, and any religious organization, to pick and choose what laws to obey.

You have studiously avoided this question. You call comments on this matter "platitudinous," and argue that "welfarist," etc. attitudes should not interfere with free exercise. But you simply fail to explain why they do so interfere.
3.3.2006 1:16pm
frankcross (mail):
A few voices wisely warned not to extrapolate from these findings to construct a general model of religious freedom in American society. Given the larger number of lawsuits filed by minority religionists compared to their proportion in the general population, they further suggested that the average Muslim or Native American is more likely to experience religious hostility in society than the average Catholic or Baptist. That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data.

Here we have a problem. If you're saying that the types of cases are not comparable, that seriously undermines the conclusions of the research. Simply adding a control variable for type of case does not cure this problem statistically.
3.3.2006 1:19pm
Bob Bobstein (mail):
The flaws in Sisk's study are evident, in his categorization of groups, attribution of differential outcome to bias, dismissing even considering the possiblity that these claims should fail on the merits as mere "subjective aversion" to the claims of these groups, refusal to address the idea that many majority religious preferences are already protected (it's easy to get Christmas off), etc.

He does not address any of these criticisms today. He instead says that his critics have asserted "that these anti-discrimination or regulatory provisions advance compelling public interests that admit to no exception." No one has said anything of the sort. We have criticized the study's unscholarly methodology.

As far as I have seen, not one commentor on any thread has defended this study. This doesn't mean that the things Sisk thinks are false; rather, it means that his study proves nothing either way.
3.3.2006 1:21pm
Justin (mail):
Eeek, I just read that Harry Browne has passed away, and apologize for using him in my example.
3.3.2006 1:44pm
Dan28 (mail):

Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims. In sum, despite sound and fury, the principal findings of the study emerged undisturbed.


This is just disgustingly disingenuous. The principal finding as originally reported was [b]not[/b] that judges reacted to the nature of traditional Christian claims but rather that judges reacted to the identity of the Christian group itself. You marketed a study which concluded that "groups who make religious liberty claims based on challenging social welfare regs or employment discrimination laws are more likely to lose in court" as a study that concluded that "Catholics and Baptists are discriminated against in our court system". The latter opinion has been repeatedly shown to be without any merit whatsoever. It was unnecessarily provacative, manipulative and beneath the standards of legitimate scholarship.

Incidentally, if Sisk has shown anything, it is the merit of online commenting on these kinds of legal issues. Posted in a law review article, Sisk's argument might almost look reasonable. Posted here, articles with gruesome logical flaws can be exposed and annihilated with extraordinary speed. If you are posting in a well populated online forum, you better have your shit together, or you are going to get crushed. That's a pretty good statement in favor of the Internet's use for academic debates.
3.3.2006 1:49pm
Twonkie (mail):
By the way, the Patriot Act passed 89-11 in the Senate. Here is a great article on how to deconstruct the psychology of those who oppose it, and still claim to be mainstream.
3.3.2006 1:49pm
eponymous coward (mail):
My vision of religious liberty denies presumptive power to any political agenda, of left or right, over claims of religious conscience. I expect that religious liberty claims by people of all faiths should receive a particularized judicial consideration and not be submerged beneath political platitudes about either "law and order" or "the equal opportunity society." An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty.

So I should be allowed to serve grape FlavorAid with cyanide at my religious ceremonies if I can demonstrate legitimate reasons of conscience to do so? I mean, it's not like I'm FORCING anyone to drink it, and those pesky murder statutes are certainly rigid state dictates...
3.3.2006 1:49pm
Huggy (mail):
The interesting thing would be all the people saying "yes it's true" to construct a testable framework for when they would agree that it wasn't. And all the one's saying "no it's false" to come up with the testable framework for when they would say that they themselves had been in error.
Otherwise not much in these comments worth reading.
3.3.2006 2:33pm
Anderson (mail) (www):
I see that Missouri is now contemplating legislation that would enshrine the status of Christianity as "majority religion" and protect the rights of said majority.

Can Prof. Sisk be completely uninvolved with that?
3.3.2006 2:52pm
F. Turk (centuri0n) (mail) (www):
As a Baptist who has been called a "fundie" more times than I can count, and who blogs a baptist blog, I have an opinion about the results of the survey: I think Baptists and Catholics are too thin-skinned and frequently see constitutional fault where there is none.

I think part of it is due to an urge to have their beliefs validated in a non-martyr martyrdom -- meaning they don't want to actually die for their faith, but they want to show, using the slippery slope, that someday somebody might want to kill them, and in that day it won't just be a judge saying, "what are you talking about," but there will be an angry mob standing outside the courtroom ready to lynch them for their intractible playing of Amy Grant CDs in their cubical.

If those people would just admit that they are social bullies rather than Christians, actual Christians could get a lot more traction in the marketplace of ideas
3.3.2006 2:57pm
Dave:
Speaking of having beliefs validated....

Missouri legislators in Jefferson City considered a bill that would name Christianity the state's official "majority" religion.

House Concurrent Resolution 13 has is pending in the state legislature.

...

The resolution would recognize "a Christian god," and it would not protect minority religions, but "protect the majority's right to express their religious beliefs.


The resolution also recognizes that, "a greater power exists," and only Christianity receives what the resolution calls, "justified recognition."
3.3.2006 3:13pm
Noah Snyder (mail):
This is the first time I've commented on one of your posts this week, though I've read most of them. When you wrote:

"That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data."

didn't you give away the whole game? Aren't *all* the inferences you're drawing "difficult to extract from [your] data" for exactly the same reason?

There are a lot of blogs where you can easily get away with flawed logic if people agree with your conclusions. This blog isn't one of them.
3.3.2006 3:19pm
Public_Defender:
"Sneer" appears to be professor Sisk's definition of an argument he cannot refute.

Sisk writes that criticism of his views "speaks volumes about the evolution within elite society of attitudes toward religious values and tolerance of dissenting religious perspectives."

Much of what Sisk asks for is the right of the Religious Right to be intolerant of dissent to their teachings. Yes, accepting gay rights puts some limits on non-gays, but so far, I haven't heard any gay people demanding that the legislature or the courts bar politically conservative Baptists and Catholics from marrying, having kids, adopting kids, or even sharing a health insurance plan. Who's being intolerant?

The social brutality is pretty one sided. And it's the politically conservative Christians who are inflicting it.

But, as F.Turk explained, politically conservative Christians seem to really need to be the victim. I think this "guest-blogging" is really just proof that the culture of conservative victimhood is alive and well.
3.3.2006 3:25pm
AF:
"First, most accepted the baseline finding that Catholic and Baptist claimants were significantly more likely to fail."

If you mean nobody questioned the accuracy of your counts, fine. If you mean everybody accepted your finding that Catholic and Baptist claimants were significantly more likely to fail after controlling for alternative explanatory variables, you are sorely mistaken. In fact, you yourself admit that the religion of the claimants is not the explanation:

"Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims."

How can you not see that to ascribe differences in outcomes to the "nature of claims" is to concede the (near) uselessness of your study? Your conclusion that Catholics and Baptists lose because they bring the sorts of claims that tend to lose is of interest only if we make the absurd assumption that all natures of claims should win and lose at the same rate. If we decline to make that assumption, and instead assume that different sorts of claims may have different degrees of merit, your study tells us very little.*

I want to emphasize that this objection to your study in no way "conflat[es] the merits — and thus the scope of religious liberty — with ideological or cultural preferences." My point is not that the types of claims brought by Catholics and Baptists should lose. My point is that the fact they do lose tells us nothing about whether they should lose. Your statistical analysis adds nothing to the important debate about the proper scope of religious liberty.

*I actually think that your summary statistics (ie, your counts) are interesting. It's your regression analysis that's useless.
3.3.2006 3:26pm
Thief (mail) (www):
Not being a lawyer, law professor, economist, or statistician, I have stayed out of the debate. But Sisk's conclusion dovetails nicely with a recent book, The Right To Be Wrong by Kevin Seamus Hanson, chairman of the Becket Fund for Religious Liberty.) Suffice to say that I agree with Sisk's conclusion and Hanson's: Religious liberty and the right of people to live peaceably according to the dictates of their own conscience, rather than trying to shoehorn everyone into one all-ecompassing moral code with no exceptions for anyone.

On a side note, I've not been impressed with the guestblogging... either the bloggers or the commentors. The guestbloggers seem like they're feeding us a few pages a day from pre-prepared faculty papers, rather than attempting to respond to commentors directly. Worse, the commentors have behaved extremely poorly, mixing 1 part good argument to 3 parts ad hominem attack. If this is what guestblogging on controversial topics is going to turn out to be, then I'd rather see the VConspirators pull the plug. Barring that, a suggestion: Announce the guestblogger on a Thursday or Friday, and post what they're going to be talking about (papers, data sets, etc.). Then when the guestblogger starts posting on a Monday, he can post a brief introduction, and then start going back and forth with commentors. (Oh, and no sneering, snarking, or name calling from anyone. It gets OLD. If you wouldn't say it at the dining room table, or at a faculty presentation, or to a professor in class, or at lunch with your friends, don't say it here.)
3.3.2006 3:29pm
bob montgomery:
I found this week's guest-blogging very interesting; the comments less so.

Thanks, Professor Sisk.
3.3.2006 3:48pm
Marcus1 (mail) (www):
>And 'round we go.<

Exactly, which is to say that your numbers are irrelevant, since the entire argument here is whether the courts should take a more Republican stance on religious freedom. The problem here is that you are trying to shroud your argument in irrelevant statistics, creating a strong and baseless insinuation that liberal judges are just giving Christians a hard time. This is why people were not interested in challenging the specifics of your numbers, because your whole study was a comparison of apples and oranges.

Essentially, you're exactly like the left-winger who makes some statistical statement and then says "Is it because Abercrombie is overtly and purposefully racist? I'm more inclined to think it is something less direct," and then continues to make an unclear and unmemorable comment about something unrelated. Do you appreciate when others use this tactic?

>Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims.<

What a load of crap! This is pure equivocation. Yes, in the sense that you don't lose in court without a negative judicial reaction. Your insinuation, however, that this relates to the personal feelings of judges toward Christians bringing claims, is what is completely unsupported, and has been universally attacked.
3.3.2006 3:59pm
Justin (mail):
Thief, you may have been reading different comments than I have, but I haven't seen all that much in the way of namecalling. There was one guy who reposted something that Sisk had said, that was probably an attempt to defeat Sisk's credibility, and that guy was pretty much rebuked.

If you're upset that nobody bought Sisk's argument and that the opposition to it was stronger than "two reasonable arguments that we come up on different sides of", that's another thing in its entirety.
3.3.2006 4:05pm
Colin:
Thief, I've seen very little sneering or name calling in the commentary to Sisk's posts. Most of the criticism seems to be specific and even technical in nature, identifying flaws in Sisk's claims and methodology and finding that his conclusions are unsupported by his data. Do you have examples?
3.3.2006 4:10pm
Marcus1 (mail) (www):
As far as whether people should be more polite, I personally think people have been well within the bounds of political debate. I also wonder how useful it is to call the comments "uninteresting." To me, this means that you already thought of all of these arguments, and you can easily counter them. So why hasn't anybody?

I personally believe that Sisk has been very artful in his comments. I do not believe he is being fully forthright. Is this not worth pointing out? It's not like we called him stupid. If one removes the "sneer" from the political vocabulary, one opens the door to a lot of sneaky insinuations and a lot of disingenuous BS.

And really, who doens't call BS at the dinner table? If we all had to write like professors, this would be a lot less interesting (present company of professors not included).
3.3.2006 4:19pm
dweeb:
Actually, up until today's post, the reactions were mostly ad hominems, personal axe grinding (especially of personal hostilities to religion) and "sneers." It's hard to believe today's rational comments, addressing the methodological flaws, mostly without even touching on the opinions, came from mostly the same group of people. With one exception (Public_defender 3.3.2006 3:25pm) this comment thread is what yesterday's should have been.
3.3.2006 4:33pm
keatssycamore (mail) (www):
I'll sneer, just so thief, bob montgomery and Prof. Sisk can feel validated:

The study discussed this week is useless for the reasons pointed out by the overwhelming majority of the people leaving comments and because Prof. Sisk and his few supporters have not answered any of legitimate questions that commenters have been raising for the past week.

Wait, that's not really a sneer is it? That's just me opining that Prof. Sisk's study is useless. Maybe he and I could attend a 'sneer seminar' so we can both figure out what exactly it means (I think I may be getting closer).

Also, he'd have gotten less 'sneer' (though I read the whole week and didn't see much 'sneer' at all) if he would have simply answered some of the questions raised by commenters. His silence and then his dodging and weaving on the central issues did not help his standing with VC commenters and was actually a maddening thing to follow.
3.3.2006 4:43pm
JosephSlater (mail):
The comments were substantive, albeit pointed, from the get-go. The promised substantive response to the comments did not appear.
3.3.2006 4:50pm
Kevin L. Connors (mail) (www):
Yes, I cannot envision any methodology for a study such as this wherein the criteria for data collection wouldn't be inherently subjective.

Prof. Sisk: you've provided an abundance of new food for thought. Unfortunately, this is food that is best taken with a grain of salt. You and I are in agreement that, in questions of religious liberty, legislatures and courts should endeavor to err strongly on the side of liberty. And that is surely not the case in present day (or, in fact, ever) America.

However, I suspect that attempting to quantify this is a fool's errand.
3.3.2006 5:21pm
CJColucci (mail):
Today's comments differ from the comments over the last few days only in that there are so few of them. But why should there be more? There's no there there. The world ends not in a bang, but in a whimper.
3.3.2006 5:46pm
Anderson (mail) (www):
I suspect Prof. Volokh had higher hopes from Prof. Sisk.

After the gay marriage dueling guest-bloggers, it was pretty evident that anyone bringing a thesis to the VC should expect to defend it against all comers.

(Wasn't that how would-be doctors of theology did it in the Middle Ages?)

If you're not prepared with people calling b.s. on you, stick to law review.
3.3.2006 8:24pm
Tbag (mail) (www):
As a would-be critic without time to comment much, thanks for your time. The work is interesting.
3.3.2006 8:37pm
Cornellian (mail):
So I should be allowed to serve grape FlavorAid with cyanide at my religious ceremonies if I can demonstrate legitimate reasons of conscience to do so? I mean, it's not like I'm FORCING anyone to drink it, and those pesky murder statutes are certainly rigid state dictates...

I'm not nearly so ambitious. My religious convictions will be restricted to anathematizing speed limits and parking tickets. Those are two rigid state dictates I very much look forward to being able to ignore once this Brave New World of faith based immunity to secular law comes to fruition.
3.3.2006 11:31pm
ADB:
F. Turk (centuri0n):

"If those people would just admit that they are social bullies rather than Christians, actual Christians could get a lot more traction in the marketplace of ideas."

As a fellow Baptist, I agree with this statement. You wouldn't happen to be one of those Centurions from Chuck Colson's program, would you? It is really too bad that most Christian leaders only engage one side of the political spectrum.

As a law student, I'd like to see us put together better arguments and also for us, to admit we are wrong sometimes.
3.4.2006 5:23am
Greg Sisk (mail):
Guest Blogger's Further Response on the Comments:

Returning to my guest-blog posts last week on "The Volokh Conspiracy" and reviewing again the reams of comments, I feel confirmed in my decision at the time not to respond seriatim to the constantly moving targets of comments that were disparate in topic, quality, and tone.

For better or for worse, I thought it better to distill general themes worthy of response for each day's posting, which also were likely to be sufficiently cohesive to remain of interest to a general readership that was not familiar with the sub-realm of comments. Moreover, as I was regularly being reminded off the blog, one hardly should assume that a few dozen comments were representative of the reactions and interests of a larger readership that was measured in the tens of thousands (talk about selection bias!).

Yet while I remain convinced that avoiding a disjointed point-by-point response to each comment was the better course of discretion, I remain unsettled as well. Many matters were left up in the air. Useful contributions from which I learned and which intrigued me were not acknowledged. Through my inability with limited space and time to fully respond and explain as well important qualifications about empirical research, I also may have left mistaken impressions. So, having no illusion that these remarks will satisfy all or even most, let me respond one last time to the collective body of comments in this venue.

With respect to questions or objections about methodology, while it took considerable effort to decipher each point made and sort the wheat from the chaff, the overall set of methodological comments moved me to consider introduction of new variables and construction of new models in our ongoing study of religious liberty decisions. When a comment suggested a potential influence or unmeasured factor that might account for judicial reactions to religious liberty claims, I was provoked to consider how controls for those factors might be added to our work. I offer my sincere thanks for those comments.

Other aspects of our methodology had been thoroughly addressed in a series of published works on judicial decisionmaking, which could not be reiterated on the blog. With respect to our religious liberty study alone, our work is outlined in three unusually exhaustive works in which each stage of our approach is laid bare and the reason for each choice in data collection, coding, and model design is explained.

Could these choices be questioned? Of course, as is true of any study. And those choices were constantly being questioned as we worked, in exchanges with colleagues, through our careful canvassing of the literature, etc. Might alternative approaches have been superior? That too is always a possibility. The researcher can do nothing more than his or her best, in conformity to basic rules for empirical study, and then make sure the data is available for others to examine.

As discussed at some length in one of my articles, we always should strive for innovation and progress in methods and measures of empirical research. (See Gregory C. Sisk &Michael Heise, Judges and Ideology: Public and Academic Debates About Statistical Measures, 99 Northwestern University Law Review 743 (2005) link). At the same time, no study could survive a scrutiny that demands absolute perfection, in methodology or in expression of the results. To say that one has constructed a better means of measuring an aspect of human behavior than was available to or implemented in past research is emphatically not to say that those past studies were wrong in some sense or that prior researchers had violated rules of empirical research. Rather, it is to say that learning is at play. As Richard Revesz aptly says, "[t]he fact that the prior literature made one choice that could be improved upon does not mean that everything in that literature must be disregarded. In this area, as in practically all fields of knowledge, advances are generally cumulative."

An evaluation of a prior study often is best conducted by a researcher who follows-up with related research of his or her own, rather than as a detached and removed exercise in general criticism. Those who actually engage in research on the same or a related topic may be best situated to fully understand and intelligently evaluate what has gone before. It is easy—dangerously and misleadingly so (as the blog comments this past week illustrated)—to pick holes at a prior study in the abstract and without engagement, that is, without getting one's hands dirty by seeking to replicate or improve upon that study in action. We are more likely to learn from what prior researchers have done when we choose to listen and to listen actively.

Once one is committed to conducting research in an area related to another scholar's prior work, then in the course of grappling with the same problems, carefully reviewing the raw data, struggling to devise proper measures, etc., that scholar may well find that the prior research makes more sense than one initially thought and is better justified than one initially realized. The later researcher frequently may find that the earlier researcher played wisely with the cards that the real and chaotic world had dealt him or her.

In addition, any empirical research is subject to inherent limitations, leaving ambiguity and uncertainty always unmastered. In the article at issue, an entire section is devoted to acknowledging the weaknesses in our study and the need for ongoing work. As summed up in one paragraph of that article:

"Any single work of empirical research, including the study upon which this essay is based, must be understood as providing only preliminary evidence to support or undermine any particular hypothesis. Every study is subject to qualifications and limitations inherent in the study's design and purpose as well as in the unavoidable human choices made in identifying the subject of study, collecting and organizing data, transforming observations into mathematical constructs, etc. Until a study is replicated by other researchers and its hypotheses tested and confirmed in other related contexts or expanded to other time periods, any conclusions or interpretations about patterns or trends likewise must be understood as tentative. Even the most important of social science findings generally will be recognized as such only after they have been incorporated into and regularly confirmed by the larger body of ongoing work in the field. Thus, in the area of judicial decisions regarding religious liberty, much more work remains to be done."

And empiricism has its limits and cannot describe the whole of the cathedral. Numerical coding and statistical analysis cannot capture the full dimension of that unique and important human enterprise known as judging nor the religiously-motivated behavior of hundreds of claimants.

Finally, while many commentators on my guest blog during the week undoubtedly thought that, by constantly raising the volume (figuratively), they were enhancing the vigor of the debate, they instead succeeded in submerging valuable contributions beneath a wave of rhetoric. Sadly, many seemed more interested in scoring an argument point than advancing a dialogue or offering a valuable suggestion. I was disappointed that I was unable to unearth more than a few nuggets of wisdom from those posts. In addition, others showed such a lack of familiarity with the rich literature and standard expectations for the field of study that responding fully would have required beginning with elementary basics, a task unsuited for this venue. Fortunately for me, a parallel series of e-mail dialogues ensued with serious scholars who were able and willing to engage in mutually productive given-and-take. The benefits of that exchange alone make the week's efforts more than worthwhile.

Greg Sisk
3.6.2006 6:49pm