Legal theorists have long believed that Christians stand a better chance at winning religious liberty cases in federal courts than do members of minority faiths. But new research by Gregory Sisk, a law professor at the University of St. Thomas, finds that exactly the opposite is true. Sisk talked with ct about his research and what it means for Christians in America.

Why did scholars believe mainstream Christians fared better than minorities in religious liberty cases?
Some suggested that this was because most judges on state and federal benches are Christians. Judges were thought to sympathize with those who expressed views consistent with their own.

'When traditional Christians raise claims that resonate with the culture wars in our society, judges find it more difficult simply to see it as a religious exemption case.'
Gregory Sisk

But you didn't find that to be true?
Our research suggests that the opposite, in fact, takes place. Those who belong to minority faiths succeed at the same rate as religious liberty claimants in general. In contrast, those who hold a more traditional Christian faith, such as Roman Catholics and evangelical Baptists, are finding that their claims are significantly less likely to succeed in front of a federal court.

Why Catholics and Baptists especially?
There are a few possible explanations. One would be that the historical bigotry against Catholics and to some lesser extent evangelical Christians has persisted into the modern day and can be found even on the judiciary. But I'm inclined to reject that conclusion. In actually reading these opinions, there is simply nothing that suggests any kind of crude prejudice against Catholics or Baptists.

Looking into the data a little bit further, we found that the claims that traditional Christians tend to bring are a shot across the bow of the modern liberal secular ship of state. They tend to resist increased government supervision of church activities such as religious schools or they resist the application of anti-discrimination laws to religious institutions.

In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law-and-order agenda typically advanced by the Right. Today, the greater threat may come from the Left through imposition of anti-discrimination and social welfare requirements even against religious believers and communities.

So why don't Christians do as well in court?
Part of what might be occurring here is that judges, like anyone else, are troubled more by difficult problems close to home rather than those that seem far off. So when a judge examines a claim by a minority religious group, that they ought to be exempted from the rule requiring a photograph on their driver's license or that they need access to a sweat lodge for cleansing, the judge is unlikely to think about whether he or she actually disagrees with that position. They just regard it as something that's different and unusual and non-threatening.

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But when traditional Christians raise claims that resonate with the culture wars in our society, judges find it more difficult simply to see it as a religious exemption case. They may instead consider whether they actually agree or disagree with the claim that's being made. Judges try, I think, quite sincerely to set aside their personal views, but judges are human beings.

Does the religion of the judge matter?
It does. We found, for example, that Jewish judges were far more likely to be favorably disposed towards claims of religious conscience. Our study also suggested that Catholic judges were more likely to respond favorably to religious liberty claims.

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.

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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.

Related Elsewhere

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.

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