Thanking Step Feldman for his mention, the empirical studies that Michael Heise, Andrew Morriss, and I have conducted on religious liberty decisions in the federal courts did indeed find that religion was an important factor on Free Exercise decisions - but it tended to the religion of the claimant that mattered the most.
For the 1986-1995 period, we found that traditionalist Christians - Catholics, evangelical Baptists, etc. - were significantly more likely to lose in seeking accommodation for religious exercise under the First Amendment or religious liberty statutes. Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=486148>, 65 Ohio St. L.J. 491 (2004). By the 1996-2005 period, that traditionalist Christian deficit had disappeared. Michael Heise & Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence From the Federal Courts<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025149>, 88 Notre Dame L. Rev. 1371 (2013); Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence From the Federal Courts<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057>, 98 Ia. L. Rev. 231 (2012). One possible reason for that change, we hypothesized, was that a large number of the claims presented by traditionalist Christians were for exemption from anti-discrimination statutes, such as employment cases involving teachers in religious institutions, a position that had largely prevailed in the lower federal courts by the middle of the last decade, even before the Supreme Court's decision in Hosanna Tabor. However, for the 1996-2005 period, we found that Muslim Americans had only about half the chance to succeed in religious accommodation cases as did claimants from other religious communities. In the "Muslims and Religious Liberty" article, we discussed possible explanation for this Muslim claimant deficit. As for judges, we found some evidence that Jewish and non-mainstream Christian judges were attracted to religious accommodation claims during the 1986-1995 period. But we did not replicate that for Free Exercise cases in the 1996-2005 period, although we found that Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. In sum, our results paint a complex and nuanced picture of how extra-judicial factors inform Free Exercise litigation outcomes as well as judicial decisionmaking more generally. Perhaps more pertinent to the current thread, in a related study, we did find a powerful correlation between the political party of the judge and the outcome in Establishment Clause cases - even controlling for the judge's own religious background (but not finding religious affiliation of judges to be a significant influence in either direction). Gregory C. Sisk & Michael Heise, Ideology "All the Way Down"? An Empirical Study of Establishment Clause Decisions in the Federal Courts<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1791214>, 110 Mich. L. Rev. 1201 (2012). And here, rather than focusing on the judge's own background directly, we suggested that the impact of political party may well be attributable to the increasing divide between the political parties on matters of religion and thus on those who make judicial appointments. As we said in the abstract for that article: A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same "God Gap" that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court's Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court's Establishment Clause doctrine has become an attractive nuisance for political judging. Michael Heise and I are planning to follow the study forward into the next ten-year period, 2006-2015, and expect to begin collecting data in the next 12 to 18 months. Greg Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545
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