Friday, September 3, 2004
Although later than anticipated, my most recent article, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, is finally in print in the Ohio State Law Journal. Many on this weblog have received a copy in the mail and for anyone else interested it also is available at this link in pdf format. At the risk of shamless self-promotion, please allow me to offer a glimpse of what my co-authors (Michael Heise of Cornell and Andrew Morriss of Case Western) and I hope will be received as a valuable contribution to the empirical study of the courts. I will focus on one of two elements most pertinent to the Mirror of Justice audience (saving the second most pertinent element for another day).
To briefly summarize the purpose and design of our study, as we describe it in the article: Many thoughtful contributions (including important ones by members of this blog) have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role or instead should be constrained to rely upon and report only secular justifications for court decisions. Yet much less has been written about whether judges’ religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. What might motivate a judge to smile upon the religious dissenter who seeks to avoid the burden of a legal requirement that conflicts with what he or she regards as the obligation of faithful belief? What experiences or attitudes might persuade a jurist to frown upon a specific example of governmental accommodation of religiously-affiliated institutions and instead insist upon a strict exclusion of what he or she regards as inappropriate sectarian elements from public life? Most poignantly, might the judge’s own religious upbringing or affiliation influence his or her evaluation of religiously-grounded claims that implicate those beliefs?
To explore those questions empirically, we conducted a comprehensive statistical study of federal court of appeals and district court judges deciding hundreds of religious liberty cases over a ten-year period, including creation and analysis of integrated models of judicial attitudes in practice toward the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. (The details of our research design, database, data collection, coding, etc. can be found in the article itself).
Based upon our study, the vitality of religious variables to a more complete understanding of judicial decisionmaking seems abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking in our study was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.
While the study reports many findings on a variety of variables, let me focus here on one that would be of particular interest to those reading the Mirror of Justice: In certain instances, Catholic judges (who accounted for 25.9 percent or 385 of the 1484 observations) were significantly more likely to take a favorable approach toward religion, what we called the Pro-Religion Model (positive outcomes on Free Exercise Clause (and related statutory) accommodation claims and negative outcomes on Establishment Clause claims).
When the Pro-Religion Model was considered as a whole, the variable for Catholic judges came closest to statistical significance, rising to the 93% probability level. While this falls just below the standard significance level of 95% and thus makes us wary of pronouncing this result as a “finding,” the variable does point in the anticipated positive direction for this model—that is, being Catholic made a judge more likely to be “Pro-Religion” when interpreting the Religion Clauses.
The influence of Catholic Church membership upon judges so affiliated emerged to full significance with respect to one important dimension of the Church and State debate—education. In the context of free exercise claims in which parents or students sought exemption on religious grounds from school policies or insisted upon accommodation by school authorities of religious practices, Catholic judges were significantly more likely (at the 95% probability level) to be receptive to those religious claimants. In the context of Establishment Clause claims challenging affirmative acknowledgment of religion in a public school setting or government aid to private religious schools, Catholic judges were significantly less likely (at the 95% probability level) to sustain those challenges.
Beyond reporting these results, we did not much speculate on the possible reasons for the correlation between Catholic background for judges and what we characterized as the “Pro-Religion” approach to religious liberty issues. Why might account for this influence? Given that other variables, such as political party, race, gender, etc., were controlled for through our regression analysis, does this not suggest that some true and genuine molding of attitudes toward religious faith in public life has occurred (at least in the past) in Catholic parishes through this country? Or does it reflect the continuing effect of history, in which Catholic judges remember when a strict separationist approach, at least on the Establishment Clause side, too often was combined with an anti-Catholic attitude, or at least an antipathy to Catholic schools? These are interesting questions to ponder. I invite the thoughts of others. (In a future posting, I'll note the other element of potential interes to this audience, which is the significantly less favorable success rate for Catholic claimants in asserting free exercise accommodation claims).
Greg Sisk
