Free Exercise of Religion before the Bench: Empirical Evidence from the Federal Courts

By Heise, Michael; Sisk, Gregory C. | Notre Dame Law Review, February 2013 | Go to article overview

Free Exercise of Religion before the Bench: Empirical Evidence from the Federal Courts


Heise, Michael, Sisk, Gregory C., Notre Dame Law Review


We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor--judicial ideology--our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decision-making more generally.

INTRODUCTION

"Religion is among the most fragile of our freedoms," (1) and, as such, religious-based challenges pitting individuals against the State and framed by litigation frequently generate particularly difficult questions about the proper relationship between religiously faithful citizens and the sovereign government. Given our nation's early and continuing history as a place of refuge for religious dissenters, it surprises few that tensions and questions endure about the contours of individuals' religious conscience and practice as well as what the State can--and, sometimes, must--properly do to accommodate religious beliefs and practices. Such tensions and questions both reflect and inform evolving understandings of religion's proper role in American public and political life and the tolerance of religious autonomy against an ever-encroaching government. Similarly unsurprising is that the persistently evolving nature of contests over religious liberty in each generation help account for changes in religious liberty jurisprudence over time. Given the import of the issues incident to litigation over religious liberty issues, combined with increased public attention to the role of religion in public life, a deeper understanding of the various factors that influence judicial outcomes is both warranted and timely.

Religious liberty claims moored in the Free Exercise Clause, including requests for accommodation, aptly illustrate the judiciary's frequently-changing approach toward resolving contests over individual religious practices and governmental regulations and commands. Of course, it was not until 1925 when the Supreme Court formally applied the Free Exercise Clause against the states. In Pierce v. Society of Sisters, (2) the Court precluded the State of Oregon from mandating public school attendance as a parent's sole way of complying with state compulsory education laws. (3) Pierce accommodated a claim for religious freedom by permitting parents to satisfy state compulsory education laws by sending their children to religious-based schools.

To be sure, religious rights, even when the beliefs are practices that are deeply-held, are not absolute. For example, decades after Pierce the Supreme Court in Employment Division v. Smith (4) allowed the State of Oregon to sanction two workers for using peyote (a controlled substance) even though peyote use was part of a genuinely-held religious ritual. Moreover, the Court's decision in Smith made clear that the state need not demonstrate that enforcing a generally applicable law promoted a compelling interest, even if enforcing such a law made the practice of a religion impossible. …

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