Approaching Equilibrium in Free Exercise of Religion Decisions in the Federal Courts

This is the second of three postings about the empirical studies that Michael Heise and I have conducted on religious liberty decisions in the lower federal courts. Today, I am sharing our findings about our most recent study of Free Exercise of Religion decisions. We have good news to share here, which is that equilibrium or equality is within reach for Free Exercise claimants from different religious backgrounds.

This article is titled Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, was published in the Arizona Law Review, and is available in full (link here).

Our dataset for 2006-2015 religious liberty decisions consisted of 2,847 judicial participations (773 by district court judges and 2,074 by court of appeals judges). This dataset of these religious liberty decisions is unprecedented in its size and its inclusive­ness of judicial actors from multiple Article III courts. In addition to including multiple decisions from every one of the 13 federal courts of appeals, our dataset includes decisions from district judges in 90 of the 94 federal districts.

Before multivariate regression analysis, the religious liberty claim was favorably received by the ruling judge 37.7% of the time. In the 30 years of decisions in our studies, this success rate has remained remarkably stable, consistently falling within a two percen­tage point band. For the 1986–1995 period, that positive ruling rate was 35.6%; for 1996–2005, it was 35.5%.

The chart accompanying this post sets out the religious identities represented in this study, by percentage of observations.

Unfortunately, as scholars and observers have long noted, America’s history of religious tolerance has been blemished by inequality and intolerance, with certain religions favored by political and judicial recognition, while other religions have been disadvantaged and left unprotected by the courts against majoritarian demands. Indeed, in our prior study for 1996–2005—during the period leading up to and following 9/11—we found that Muslims were experiencing a dramatic deficit of success in free exercise claims, succeeding at only about half the rate of other religious claimants.

But the past need not predict the future. For the most recent period we studied, 2006–2015, things appear to be moving toward that aspirational point where claimants from most religious backgrounds across the spectrum of religious experience in American life suffer no systematic disadvantage in seeking accommodations for religious exercise. With shrinking exceptions, judges of the federal courts of appeals and district courts appear to be adjudicating constitutional and statutory religious exercise claims with even-handed impartiality. Claims by Catholics, Mainline Protestants, Baptists, Seventh-day Adven­tists, Mormons, Muslims, and others did not achieve success or experience failure at a significantly different rate than for claims of the same type made by others.

The Brittanica Dictionary defines “equilibrium” as “a state in which opposing forces or actions are balanced so that one is not stronger or greater than the other.” The followers of one religion should neither enjoy a greater probability to prevail nor suffer a disadvantage in seeking state recognition of religious practices, when such unequal results are based on religious identity of the follower or the cultural dominance of that religious tradition. If religious liberty in America is to be genuinely available in practice, as well as in theory, it must mean that every person of every faith may expect equal consideration when presenting a demand for accommodation of religious exercise against governmental restrictions.

What prompted religious liberty adjudication to move in this encouraging direction? As with last week’s posting on Establishment Clause decisions, we find that Supreme Court clarification of the law appears to have made a substantial difference.

For example, the Supreme Court’s 2006 decision in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), provided the tools for loosening the grip of stereotypes. This decision held that the government could not preclude a religious sect from sacramental use of a hallucinogenic substance by the “mere invocation” of a general prohibition on nonmedical use of narcotics. By requiring an individualized case-specific scrutiny that focuses on the religious claimant’s particular attributes, the O Centro decision encourages the judge to abandon stereotypical generalizations and engage in a differentiated and individualized treatment of each claim.”

In this way, a court instead may better appreciate the character of the claimant’s religious practice and the nature of the requested accommodation. To undertake that examination, the judge should learn about each claimant’s faith perspective objectively and rigorously, but also sympathetically, thereby substituting new information and understanding for implicit beliefs. See also Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (directing courts to evaluate on whether the government has substantially burdened a particular religious exercise rather than other forms of religious exercise in which the claimant might engage, thus requiring courts to focus on the specific nature of a particular religious exercise).

Additional evidence in our study supports this analysis. The independent variables in our study that do achieve statistical significance strongly and comprehensively—Case-Type variables—are precisely those that should correlate with the outcome of religious liberty disputes. Not every free exercise or related claim is positioned to be positively affirmed in every context. And we find that the likelihood of success does vary by case category. Indeed, of our 12 Case-Type variables, 8 are significant, namely Public Secondary and Higher Education, Private Education, Religious Meetings, Religious Expression, Zoning, Prisoner, Exemption from Anti-Discrimination Laws, and Criminal Defense.

The remarkably comprehensive and robust signifi­cance of our Case-Type variables dovetails with doctrine to advance the equilibrium of religious liberty for diverse religions. Rather than the case turning on noncontextual and perhaps implicitly biased views of a particular religious claim, the contextual approach demands a deeper dive into the nature of the religious claim and a fine-tuned assessment of the government’s claim of an overriding public interest. We would expect, then, that some contexts are more likely to pose particularly troubling invasions of the government into private religious behavior, while others are more likely to implicate a compelling public interest in preventing harmful behavior.

Although the promised land may be in sight, we are not yet there. Significant advantages (for Native Americans and Budd­hists) and disadvantages (for Orthodox Jews and Rasta_­farians) for a small number of claimants demonstrate that work remains to be done. And the troubling indication that judges may look more favorably on claims by coreligionists belies any pretense that impartial adjudication has been fully achieved.

Through the rise of cultural tolerance, a deepening understanding of the sincere beliefs of others, and conscientious judicial attention to religious claims and countering implicit bias, the courts may be moving us closer to that ideal of robust and widely enjoyed religious liberty.