Dr. Lindsay's Huff-Po and religion as an explanatory variable in religious accommodation cases

At first knowing of him only what I read in his piece, it came as something of a surprise to me to learn that the author of the Huff-Po* raising Hobby Lobby-based "concerns about the compatibility between being a Catholic and being a good citizen" has legal training. There is little legal argument and the piece describes as a "fiction" the quaint contention that the Court's application of a federal statute involved "upholding secular law." Yet Dr. Ronald Lindsay has not only a JD (from UVA), but also a PhD (from Georgetown). And he successfully practiced law for a long period of time.

Dr. Lindsay's full-time job now appears to be running an organization designed "[t]o oppose and supplant the mythological narratives of the past, and the dogmas of the present." As Dr. Lindsay has been carrying out this mission for a while, it is peculiar that he describes his loaded question ("Is it appropriate to have six Catholic justices on the Supreme Court?") as "uncomfortable." Surely this question is not uncomfortable for him. His Huff-Po is an organic outgrowth of the culture in which he lives; writing it fits in perfectly with his day job. Given Dr. Lindsay's background and knowledge, what is most uncomfortable is not his question, but his apparent uninterest in actually advancing and arguing for an explicit answer in his Huff-Po.

For whatever it's worth, as a descriptive matter, the Catholic Justices' Catholicism cannot be entirely irrelevant to how they rule. But the way in which Catholicism may or may not influence each Justice differs from person to person, and scholars of judicial behavior have generally not found it useful to use judicial religious identity as a variable in building their models. There are other, stronger influences that matter much more (like ideology).

Interestingly, Hobby Lobby may be one kind of case in which the religious identity of judges and of parties may be a useful explanatory variable, although not confirmed at the Supreme Court level. The most detailed empirical examinations of this issue that I am aware of are Greg Sisk's and Michael Heise's analyses of lower-court decisions. I believe their most recent paper (Greg can correct me if I'm wrong) is Ideology "All the Way Down"? An Empirical Study of Establishment Clause Decisions in the Federal Courts, 110 Mich. L. Rev. 1201 (2012). That paper addresses Establishment Clause cases. An earlier paper with co-author Andrew Morriss addresses religious accommodation cases. See Gregory C. Sisk, Michael Heise, & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004). I am uncertain whether their analysis has been supplanted by later analyses, but here is a summary of their findings as of 2004:

The vitality of religious background to a more complete understanding of judicial decisionmaking is made abundantly clear by the findings of our study, at least for disputes involving the very topic of religion and the place of religion in public society. In our study, religion-based variables proved to be steady influences on judicial disposition of religious freedom claims, emerging as statistically significant across multiple models and independent of other background and political variables commonly used in empirical tests of judicial behavior. Indeed, religious affiliation variables—both those of judges and of claimants—were the most consistently significant influences on judicial votes in the religious freedom cases included in our study.   

In analysis of demands by religious claimants for exemption from governmental rules or regulations under the Free Exercise Clause of the First Amendment, together with related statutory, free speech, and equal protection claims, Jewish judges and judges from Christian denominations outside of the Catholic and Mainline Protestant traditions were significantly more likely to approve of such judicially-ordered accommodations, while free exercise claimants from Catholic and Baptist backgrounds were significantly less likely to succeed in pressing such claims. In evaluating judicial resolution of challenges to governmental interaction with religion under the Establishment Clause of the First Amendment, Jewish judges were significantly more likely to conclude that governmental interaction with religion breached the figurative wall of separation between church and state. In the particular context of education, Catholic judges were significantly more likely both to respond favorably to religious claimants seeking exemption from governmental rules or regulations (that is, more approving of Free Exercise Clause objections to government controls) and to resist challenges to governmental acknowledgment of religion or interaction with religious institutions (that is, less approving of Establishment Clause claims).

Shifting from a focus upon particular types of claims to analysis of four integrated theoretical models of the Religion Clauses of the Constitution—models that we christened Pro-Religion, Anti-Political, Judicial-Restraint, and Pro- Secularist—the steady influence of religion-based variables again emerged in our study. No significant variables were found among judges who adopted an approach toward the Free Exercise and Establishment Clauses that was most approving and accommodating of religion (the Pro-Religion Model) (although Catholic affiliation for judges closely approached significance). Nor did those judges who fit the antithetical model of insisting upon secularism in public life (the Pro-Secularist Model) fall into any significant patterns (again with the near and negative exception of Catholic judges). However, Jewish judges along with judges from non-mainstream Christian backgrounds were significantly more likely to approve of judicial intervention to overturn the decisions or actions of the political branch that either refused to accommodate religious dissenters or provided an official imprimatur upon a religious practice or symbol (the Anti-Political Model). Likewise, judges from these same religious backgrounds were significantly less likely to adopt a judicial restraint approach (the Judicial-Restraint Model), that is, these judges were less likely to defer to governmental actions that severely impacted religious minorities or that officially acknowledged religious traditions.

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* A "Huff-Po" is kind of like an op-ed, but in partaking more of assertion than argument it exhibits one of the "characteristics of the larger intellectual/political culture of which the HP is an expression."