Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts

In our continuing empirical study of religious-liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. With other variables held constant, the likelihood of success for non-Muslim claimants in Religious Free Exercise claims was 38%, while the probability of success for Muslim claimants fell to 22% (with an even higher disparity among court of appeals judges). In sum, Muslim claimants enjoyed only about half the chance to receive accommodation of their religious beliefs and practices as did claimants from other religious communities. Drawing on insights from legal studies, political science, and social and cognitive psychology, we discuss alternative explanations for this result, including: (1) a cultural antipathy toward Islam as another minority religion outside the modern American religious triumvirate of Protestantism, Catholicism, and Judaism; (2) the growing secularism in certain sectors of society along with opposition to groups holding traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the fears harbored by many Americans that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. As a new threat to religious liberty, the persistent uneasiness of many Americans about Islam and its followers appears to have filtered into the attitudes of such well-educated and independent elites as federal judges

Religion, School, and Judicial Decision Making: An Empirical Perspective

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence

Where to Place the “Nones” in the Church and State Debate? Empirical Evidence from Establishment Clause Cases in Federal Court

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life. Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic judges. We had reported a similar influence in the past, finding that, in the education context, Catholic judges were significantly more likely to resist Establishment Clause challenges to governmental acknowledgment of religion or interaction with religious institutions. Unprecedented in prior empirical studies, we also found that judges without a religious affiliation—falling within the growing demographic of the so-called “Nones”—were significantly less likely to uphold an Establishment Clause claim. Holding other variables constant, the predicted probability that a judge without a religious affiliation would approve an Establishment Clause challenge was 24.9%. Judges with a religious affiliation approved such claims at a 40.0% rate. Interestingly, and counterintuitively, our study suggests that a decrease in religious affiliation in society may not inevitably be accompanied by a secularist opposition to acknowledgment of religion in the public square or the robust participation of religious persons and entities in public life. Studies confirm that the number of Americans who do not affiliate with organized religion (“Nones”) has increased to a quarter of the population. We find that demographic change is now reflected among federal judges as well, as 11.5% of the observations in this study involved judges without a religious affiliation. While not surprisingly finding that Catholic judges were significantly more likely to reject an Establishment Clause claim, we also found evidence that judges who are Non- Religiously-Affiliated, or Nones, were also more likely to turn away Church and State complaints

Religion, School, and Judicial Decision Making: An Empirical Perspective

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence

Ideology \u27All the Way Down\u27? An Empirical Study of Establishment Clause Decisions in the Federal Courts

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down. Alternative ideology variables of Party of Appointing President and Common Space Scores were highly significant and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3% rate, while the predicted probability of success fell to 25.4% before Republican-appointed judges. Thus, an Establishment Clause claimant\u27s chances for success were 2.25 times higher before a judge appointed by a Democratic president than before a judge appointed by a Republican president. Using Common Space Scores as a proxy for ideology, the most liberal judges were predicted to approve such claims at a 62.5% rate, compared with acceptance by the most conservative judges only 23.2% of the time. A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same God Gap that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of its notorious lack of clarity and a consequently low level of law formality, the Supreme Court\u27s Establishment Clause doctrine has become an attractive nuisance for political judging

Ideology \u27All the Way Down\u27? An Empirical Study of Establishment Clause Decisions in the Federal Courts

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down. Alternative ideology variables of Party of Appointing President and Common Space Scores were highly significant and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3% rate, while the predicted probability of success fell to 25.4% before Republican-appointed judges. Thus, an Establishment Clause claimant\u27s chances for success were 2.25 times higher before a judge appointed by a Democratic president than before a judge appointed by a Republican president. Using Common Space Scores as a proxy for ideology, the most liberal judges were predicted to approve such claims at a 62.5% rate, compared with acceptance by the most conservative judges only 23.2% of the time. A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same God Gap that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of its notorious lack of clarity and a consequently low level of law formality, the Supreme Court\u27s Establishment Clause doctrine has become an attractive nuisance for political judging

Too Many Notes ? An Empirical Study of Advocacy in Federal Appeals

The warp and woof of American law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. While the product of the appellate courts is regularly the subject of empirical study, less attention has been given to the sources and methods of appellate advocacy. Given the paramount place of written briefs in the appellate process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants. Experienced appellate advocates submit that familiarity with appellate courts, the honed ability to craft the right arguments with the appropriate style in briefing, and expertise in navigating the appellate system provide superior legal representation to clients. Our study lends support to this claim. We found a positive correlation between success and experience for lawyers representing appellees, thus warranting further study of lawyer specialization