2 of 2

But we're not suggesting that you can use this to predict the behavior of individual judges. You can't say, "Well, this judge is Jewish and that judge is Catholic, and therefore I know how he or she is going to rule." That's simply not the case at all. You're talking about dozens and dozens of judges and making a general comment about their tendencies.

How successful are religious liberty claims in general?
In the lower federal courts, our study and others suggest that the overall success rate is one in three. Now what's the right number? Who could say? Obviously not every religious liberty claim should succeed.

A lot of cases fall out early on. As a religious liberty dispute arises, the parties often talk to one another and work it out, and it never finds its way into a courtroom. In other cases, a lawsuit is filed and a settlement quickly reached, and that also generally doesn't get much attention. So the kinds of cases that find their way all the way to a published opinion are more likely to be the difficult kinds of cases.

No one would want all of these suits to succeed, because some of them challenge important applications of the law that a civilized society simply can't do without. The classic example is the person who insists that his or her religion requires human sacrifice. Understandably, no court will ever accommodate that.

How did you arrive at these results?
We looked at all published decisions in both the United States Court of Appeals and the United States District Court from 1986 to 1995. We included every single case that involved religious liberty claims during that 10-year period. Then we applied the tools of social science and statistics to figure out a way to translate these things into numbers. And that, of course, required some methodological choices that individuals might disagree with, but which we thought either made sense or the literature supported.

What sorts of objections have people made to the study?
The most common objection is that the study compares apples and oranges—that every religious liberty case is so different from every other one that you can't simply put them all together into a generalized study.

But our assumption is that as long as you have a large sample—hundreds of cases, not just a few—the oddities between them will be washed out in the overall mix. In addition, our study used only published federal court opinions. Published opinions are those that judges believe are sufficiently important that they ought to be recorded. That makes it far less likely that the kinds of cases included are silly or frivolous. And we specifically controlled for types of claims and different fact categories of cases.

Did reading hundreds of these cases give you more or less respect for federal courts?
Definitely more respect. In reading these opinions, you see that claims being made by individuals at the lowest levels of society are taken seriously. We looked at claims made by prisoners who sought accommodation by prison administrators for their religious beliefs, whether it was dietary requirements or access to religious counseling. And while one might think that claims being made by prisoners would be among those least likely to succeed, we did not find that to be the case. This means that the claims of the most marginalized individuals are being taken seriously by judges who take the time to actually write opinions about the outcomes. I think that speaks pretty well of the courts.

Nate Anderson is a writer living in Wheaton, Illinois.

Gregory Sisk is a professor of law at the University of St. Thomas.

His study, "How Traditional and Minority Religions Fare in the Courts: Empirical Evidence from Religious Liberty Cases" is available online.

first page |  2 of 2

share this page

December 2006, Vol. 50, No. 12