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

• Author: Gregory C. Sisk - Michael Heise
• Position: Laghi Distinguished Chair in Law, University of St. Thomas School of Law (Minnesota) - Professor of Law, Cornell Law School
• Pages: 231-291

231

Muslims and Religious Liberty in the Era

of 9/11: Empirical Evidence from the

Federal Courts

Gregory C. Sisk & Michael Heise

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.

 Laghi Distinguished Chair in Law, University of St. Thomas School of Law

(Minnesota) (gcsisk@stthomas.edu). For comments on an earlier draft, we thank Hadar

Aviram, Thomas Berg, Raj Bhala, Marie Failinger, Richard Garnett, Robert Kahn, Nekima Levy-

Pounds, Michael Paulsen, Lena Salaymeh, David Schwartz, Dawinder Sidhu, Kristen Stilt,

Ahmed Taha, Robert Vischer, and the participants and attendees at panels at the Conference

on Empirical Legal Studies at Northwestern University on November 5, 2011, the Twin Cities

Law & Society Conference at the University of Minnesota on October 14, 2011, and the Law &

Society Association annual meeting in San Francisco on June 4, 2011. Responsibility for errors

and unwise failures to heed such counsel by other scholars belongs solely with the authors.

Professor Sisk thanks his assistant, Bethany Fletcher, for work inputting coding and law

students, Eric Beecher and Alicia Long, for conducting cross-checks on opinion coding.

 Professor of Law, Cornell Law School (michael.heise@corn ell.edu).

232 IOWA LAW REVIEW [Vol. 98:231

I. INTRODUCTION ...................................................................................... 233

II. EMPIRICAL STUDY OF RELIGIOUS FREE EXERCISE/ACCOMMODATION

DECISIONS IN THE FEDERAL COURTS, 1996–2005 ................................ 237

A. THE RELIGIOUS FREE EXERCISE/ACCOMMODATION STUDY ................. 237

1. The Nature of the Study ........................................................ 237

2. Clustering Standard Errors at the Judge and Circuit

Levels ....................................................................................... 239

3. Statistical Significance for Finding a Correlation

Between an Independent (Explanatory Variable) and

the Dependent (Outcome) Variable .................................... 240

B. RELIGIOUS CLAIMANT VARIABLES: IDENTITY AND CODING ................. 245

III. THE RESULTS: THE MUSLIM DISADVANTAGE IN RELIGIOUS-LIBERTY

CASES ..................................................................................................... 248

A. EMPIRICAL EVIDENCE ON MUSLIM RELIGIOUS-LIBERTY CLAIMANTS

ACROSS TWENTY-YEAR SPAN OF STUDY .............................................. 248

B. MEASURING THE SIZE OF THE MUSLIM DISADVANTAGE....................... 251

IV. AMERICAN ATTITUDES ABOUT ISLAM AND ALTERNATE THEORIES OF

THE MUSLIM DISADVANTAGE ................................................................. 255

A. THE AMERICAN PROMISE OF RELIGIOUS LIBERTY AND THE MUSLIM

EXPERIENCE ..................................................................................... 255

B. ALTERNATIVE THEORIES FOR THE MUSLIM DISADVANTAGE IN

RELIGIOUS-LIBERTY CASES ................................................................ 259

1. The “Minority Religion Disadvantage” Thesis ..................... 260

2. The “Culture War: Traditionalist v. Secularist” Thesis ........ 262

a. From 1986 to 1995: Traditionalist Christians Less Likely

To Succeed in Religious-Liberty Cases .................................. 262

b. Muslim American Attitudes on Moral Values, Religion in

Public Life, and Politics ...................................................... 263

c. From 1996 to 2005: The Traditionalist Christian

Disadvantage Disappears .................................................... 267

d. No Evidence that the Muslim Disadvantage Is Due to

Traditionalist Nature of Islam ............................................ 269

3. The “Muslims Deserve To Lose” Thesis ................................ 270

4. The “Islam Viewed as Dangerous” Thesis: Perceptions

and Realities About American Muslims ................................ 277

V. OF TIDES AND CURRENTS: FEDERAL JUDGES AND ATTITUDES ABOUT

ISLAM IN AMERICA .................................................................................. 281

VI. CONCLUSION ......................................................................................... 288

2012] MUSLIMS AND RELIGIOUS LIBERTY 233

The great tides and currents which engulf the rest of men, do not turn aside

in their course, and pass the judges by.

—Justice Benjamin N. Cardozo1

I. INTRODUCTION

Following an Islamic legal ruling by local Muslim leaders, Somali

immigrant taxi drivers in the Twin Cities refused to transport passengers

who were openly carrying alcoholic beverages, believing that doing so would

violate the Qur’an’s ban on intoxicants.2 Many travelers arriving at the

Minneapolis–St. Paul International Airport, who were toting transparent

bags containing bottles of wine or carrying boxes of liquor were turned away

by the first driver waiting in the taxi line (if he were a Muslim) and instead

directed to another taxi driver (who was not).3 Upset at being declined

service by a taxi driver, travelers lodged complaints with the airport

administration.4

Wanting to ensure that all arriving travelers would find convenient

ground transportation while also accommodating the beliefs of the Somali

Muslim taxi drivers, the Metropolitan Airports Commission came up with

what both airport officials and Somali taxi drivers thought was an “ingenious

solution.”5 Those taxi drivers who, by reason of religious stricture, could not

transport alcoholic beverages would install a light on top of their cabs so

that the dispatcher could instead signal a different taxi driver to come

forward for passengers openly carrying liquor.6 In this way, most persons

seeking a taxi at the airport would be served promptly and likely not even

1. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 168 (1921).

2. Keith Oppenheim, If You Drink, Some Cabbies Won’t Drive, CNN.COM (Jan. 26, 2007),

http://www.cnn.com/2007/US/01/25/oppenheim.cabbies/index.html; see also QUR’AN, Surah

Al-Ma’idah 5:90 (prohibiting intoxicants).

3. See David Van Biema, Religion: Minnesota’s Teetotal Taxis, TIME (Jan. 19, 2007), http://

www.time.com/time/magazine/article/0,9171,1580390,00.html. These Somali immigrant taxi

drivers do not have any religious duty to inquire of passengers about alcoholic bev erages or to

investigate whether closed baggage contained liquor. See Dolal v. Metro. Airports Comm’n, No.

A07-1657, 2008 WL 4133517, at *1 (Minn. Ct. App. Sept. 9, 2008) (reporting affidavit of

Muslim religious leader that taxi drivers are prohibited from searching passenger baggage and

are only precluded from transporting a passenger when the driver knows he is carryin g

alcohol). Thus, only when a potential passenger was carrying an alcoholic beverage in view of

the driver, such as in a bag that did not hide its contents or in a labeled liquor box, did the

driver then believe that to accept the passenger would be to knowingly participate in the

transportation of intoxicating substances.

4. Oppenheim, supra note 2.

5. Van Biema, supra note 3.

6. Id.