Monday, July 15, 2013
In our recently-published empirical study of religious freedom cases brought in the federal courts, Michael Heise and I found that American Muslims have been at a distinct and substantial disadvantage in raising free exercise claims. Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 Iowa Law Review 231 (2012) (here). Holding other variables constant, the likelihood of success for non-Muslim claimants in religious free exercise claims was 38 percent, while the probability of success for Muslim claimants fell to 22 percent. In sum, Muslim claimants had only about half the chance to receive accommodation that was enjoyed by claimants from other religious communities.
Turning from statistical analysis to interpretive evaluation, we suggested that the most likely explanation for the Muslim disadvantage was the often subconscious perception by many of us that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Sociologist Stanley Cohen originated the term “moral panic,” defined as when a “condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests [and] its nature is presented in a stylized and stereotypical fashion.” We fear that we have been experiencing such a "moral panic." Indeed, we argue that the persistent uneasiness of many Americans about Muslims poses a new threat to religious liberty.
The negative image of Islam and its followers in America, sadly accepted by a substantial segment of our society, bears little resemblance to reality. As reported by the Pew Research Center in 2007 (here):
A comprehensive nationwide survey of Muslim Americans finds them to be largely assimilated, happy with their lives, and moderate with respect to many of the issues that have divided Muslims and Westerners around the world. Muslim Americans are a highly diverse population, one largely comprised of immigrants. Nonetheless, they are decidedly American in their outlook, values, and attitudes. Overwhelmingly, they believe that hard work pays off in this society. This belief is reflected in Muslim American income and education levels, which generally mirror those of the general public.
A larger percentage of Muslims (71 percent in 2007, 74 percent in 2011) than the general American public (64 percent in 2007, 62 percent in 2011) has adopted a strong work ethic and believes people can move ahead through hard work. (Pew Survey 2007; Pew Survey 2011). Muslim American women are highly educated, second only to Jewish women in that regard, and Muslim Americans have the highest level of gender pay equity. Overall, more than three-quarters of Muslims in the United States report that they are happy or satisfied with their lives. A more recent poll found that, among all religious groups, Muslim Americans are the most optimistic about their future.
Nonetheless, negative stereotypes persist. Why? Poll results and statistics -- knowledge divorced from relationship -- are unlikely to bring us all the way home.
As psychology Professor Seymour Epstein explains, each of us “apprehends reality in two fundamentally different ways, one variously labeled intuitive, natural, non-verbal, narrative, and experiential, and the other analytical, deliberative, verbal, and rational.” Psychology Professor and Nobel laureate in economics Daniel Kahneman describes “System 1” as “operating automatically and quickly, with little or no effort and no sense of voluntary control,” while “System 2,” which is our “conscious reasoning self” gives “attention to the effortful mental activities that demand it.”
Despite being an integral and often beneficial side of our personality, Epstein warns that the experiential system is “[m]ore crudely differentiated” and lends itself to “stereotypical thinking.”
But while a tendency toward stereotypical thinking about our fellow human beings may be somewhat hard-wired into our brains, psychology Professor Albert Bandura emphasizes that “[t]he capability to reflect upon oneself and the adequacy of one’s thoughts and actions is [an] exclusively human attribute.” In rough terms, while our animal instincts may prompt us to be suspicious of others who are different than we are, our human capacity grants us the gift of reflection and reconstruction and empathy.
Epstein advises that a person may “improve [the experiential system] by providing it with corrective experiences.” A group of law and psychology scholars in a recent article with Professor Jerry Kang as lead author urges us to counter harmful subconscious prejudices by “engage[ing] in effortful, deliberative processing.” Professor Kang and his scholarly associates refer to this “potentially effective strategy” to reduce the impact of implicit biases as “expos[ing] ourselves to countertypical associations.”
In sum, we are talking about “relationship.” When we are making decisions about people, fundamental fairness and respect for human dignity demands that we make individual and rational judgments. And we are more likely to do so when we know people, when we expand our circle of friends and neighbors and associates and students.
As lawyers, law professors, and law students, our professional work is about relationships. I just returned weekend before last from an important conference on professional formation hosted by the Holloran Center at the University of St. Thomas School of Law. A key theme was that clients are not problems to be solved but people to be served. Moreover, as legal educators, we must remember that the most effective instruction is one built on relationships in a diverse classroom community.
In his first encyclical this past month, Pope Francis reminds us that relationship is at the heart of our Catholic faith. In the Old Testament, God reveals Himself to Abraham by calling him by name: “God is not the god of a particular place, or a deity linked to specific sacred time, but the God of a person, the God of Abraham, Isaac and Jacob, capable of interacting with man and establishing a covenant with him. Faith is our response to a word which engages us personally, to a ‘Thou’ who calls us by name.” In the New Testament, we are called to a relational faith through “the person of Christ himself, who can be seen and heard.”
These words of Pope Francis should resonate all of us who are saddened by societal divisions and the stain of harmful stereotypes: "Persons always live in relationship. We come from others, we belong to others, and our lives are enlarged by our encounter with others.”