Empirical study of religious liberty decision in the federal courts: The Establishment Clause cases

One of the scholarly hats that I wear is that of an empirical researcher on religious liberty decisions in the lower federal courts. I have been greatly blessed over the past couple of decades to collaborate with Michael Heise of Cornell on this work. We have now published our most recent findings through three successive decades of religious liberty decisions, in three journal articles that have been published within the past several months.

I’ve been encouraged to share some of what we’ve found here on Mirror of Justice. I’m planning to post separately on each of our three works in the coming week or so.

I begin today with our study of Establishment clause decisions in the federal district courts and courts of appeals from 2006 through 2015. This article is titled Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, was published in the Arizona State Law Journal, and is available in full (link here).

What has been most distinctive – and not in a good way – about our observations of Establishment Clause cases over multiple decades has been the sometimes dramatic and still persistent partisan divide among the judges, based on the party of the appointing president.

Now in our other empirical work and based on my study of the literature, let me emphasize that I do not share the view that the evidence supports a general critique of the federal courts on partisan grounds. To the contrary, only a few types of cases have shown both a statistically significant and a substantial size discrepancy in how judges appointed by presidents of different parties resolve disputes.

Indeed, we begin our most recent article by noting that the last wall of the judiciary held during the partisan political storm following the 2020 presidential election. In the federal courts, Donald Trump faced defeat after defeat, dozens of times. An impartial and non-partisan federal judiciary was having none of his unsupported claims of election fraud or his extreme requests to disenfranchise millions of voters. Judges appointed by the presidents of his own party, including judges appointed by President Trump himself, rejected in scathing terms the claims that he and his supporters raised.

As we say in the article, however, now having been reminded that a non-partisan judiciary is essential to preserve the rule of law, we should be all the more distressed when we observe federal judges returning to partisan corners on another matter.

In our most recent iteration of our empirical examination of religious liberty decisions in the lower federal courts, we found persisting evidence of a partisan divide. Holding all other variables constant, Democratic-appointed judges were predicted to uphold claims challenging government conduct on Establishment Clause grounds at a 45.1 percent rate, while the predicted probability of success fell to 33.0 percent before Republican-appointed judges.

Importantly, however, this was a substantial narrowing of the partisan gap from our study of the preceding period of 1996-2005, in which we had found that a Republican-appointed judge would accept an Establishment Clause claim only 25.4 percent of the time, while a Democratic-appointed judge would accept the claim at the significantly higher rate of 57.3 percent. Thus, for the earlier period of study, an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. By the next ten-year period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.

So what accounts for this? We have suggested that the source of a partisan divide may be found in the absence of constraining legal doctrine that leaves judges without clear guideposts in resolving Establishment Clause disputes. But the Supreme Court has been modifying that doctrine in recent decades. And those stronger legal controls are making a difference. When the Supreme Court sets forth clearer rules for Establishment Clause disputes with less ambiguous standards, greater stability in decisions with less subjectivity followed.

For our most recent study of the 2006-2015 period, we explored the influence of the Supreme Court’s decision in Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2012). In Winn, the Supreme Court employed a narrowed test for judicial standing to deflect Establishment Clause challenges by a group of taxpayers against a state program allowing tax credits for contributions to qualifying non-profit organizations including religiously-affiliated schools. Observing that any funds received by the religious schools was because of the decisions of a taxpayer to contribute to the organization, the Court majority ruled that the case involved private action rather than state activity

The Supreme Court’s 2011 decision in Winn decision narrowed standing and thus reduced the occasions for a judicial finding of an Establishment Clause violation. Winn is a landmark decision that meaningfully redirects Establishment Clause juris­prudence.

And, looking at the lower federal courts in deciding Establishment Clause challenges, our variable for Winn was significant at the 99 percent confidence level and substantial in effect. For the 2006-2015 period, holding all other independent variables constant in our Party-of-Appointing-President model, our best estimate was that the success rate for Establishment Clause claimants fell from 59.7 percent to 15.8 percent after the Supreme Court decided Winn. The impact was quite dramatic, a decline of more than 40 points or nearly three-quarters.

In sum, the Supreme Court’s change of doctrinal course in Winn appears likewise to have changed the outcome course of Establishment Clause decisions in the lower federal courts. No other factor that we have explored has produced such a marked change in predicted like­lihood. This single precedent may have been a game-changer for Establishment Clause decisions in the lower federal courts.

In other words, yes, the law does matter.

Next post will be on the Free Exercise cases, where the news is good, although that must be tempered with fears of changes on the horizon.