Free exercise of religion before the bench: empirical evidence from the federal courts.

• Author: Heise, Michael

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor--judicial ideology--our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decision-making more generally.

INTRODUCTION

"Religion is among the most fragile of our freedoms," (1) and, as such, religious-based challenges pitting individuals against the State and framed by litigation frequently generate particularly difficult questions about the proper relationship between religiously faithful citizens and the sovereign government. Given our nation's early and continuing history as a place of refuge for religious dissenters, it surprises few that tensions and questions endure about the contours of individuals' religious conscience and practice as well as what the State can--and, sometimes, must--properly do to accommodate religious beliefs and practices. Such tensions and questions both reflect and inform evolving understandings of religion's proper role in American public and political life and the tolerance of religious autonomy against an ever-encroaching government. Similarly unsurprising is that the persistently evolving nature of contests over religious liberty in each generation help account for changes in religious liberty jurisprudence over time. Given the import of the issues incident to litigation over religious liberty issues, combined with increased public attention to the role of religion in public life, a deeper understanding of the various factors that influence judicial outcomes is both warranted and timely.

Religious liberty claims moored in the Free Exercise Clause, including requests for accommodation, aptly illustrate the judiciary's frequently-changing approach toward resolving contests over individual religious practices and governmental regulations and commands. Of course, it was not until 1925 when the Supreme Court formally applied the Free Exercise Clause against the states. In Pierce v. Society of Sisters, (2) the Court precluded the State of Oregon from mandating public school attendance as a parent's sole way of complying with state compulsory education laws. (3) Pierce accommodated a claim for religious freedom by permitting parents to satisfy state compulsory education laws by sending their children to religious-based schools.

To be sure, religious rights, even when the beliefs are practices that are deeply-held, are not absolute. For example, decades after Pierce the Supreme Court in Employment Division v. Smith (4) allowed the State of Oregon to sanction two workers for using peyote (a controlled substance) even though peyote use was part of a genuinely-held religious ritual. Moreover, the Court's decision in Smith made clear that the state need not demonstrate that enforcing a generally applicable law promoted a compelling interest, even if enforcing such a law made the practice of a religion impossible. (5)

Perhaps not surprisingly, Congress quickly responded to the Smith decision by passing the Religious Freedom Restoration Act (RFRA) three years later in 1993. (6) Signed into law by President Clinton, RFRA sought to prevent governments at all levels (local, state, and federal) from substantially burdening Free Exercise rights with generally applicable laws unless the government could articulate a compelling interest. (7) That is, through RFRA, Congress (and the President) sought to unwind the practical consequences of the Court's Smith decision. Four years later, however, the Court reminded Congress once again that the Court had the final word when it came to construing the contours of the Free Exercise Clause. In City of Boerne v. Flores, (8) the Court declared that Congress exceeded its Fourteenth Amendment authority by enacting legislation designed to enforce the Free Exercise Clause against the states. (9) (Every court to directly address the question agrees that RFRA continues to apply to the federal government, as having validly accepted additional obligations to protect religious exercise. (10))

In the early wake of the Smith decision, Professor Douglas Laycock wrote that the Court's analysis left the Free Exercise Clause with "little independent substantive content" and opened the door to religious discrimination. (11) Importantly, Professor Laycock also went on to predict that "[i]f the Court intends to defer to any formally neutral law restricting religion, then it has created a legal framework for persecution, and persecutions will result." (12)

While side-stepping questions about persecution, this Article takes a slightly different approach toward Professor Laycock's predictions. Specifically, we assess whether and, if so, the degree to which extra-judicial factors help explain judicial outcomes in religious liberty litigation involving the Free Exercise Clause and accommodation claims. As Professor Laycock contends, Free Exercise Clause jurisprudence has lacked consistent and coherent substance, which, combined with the Supreme Court's traditional use of malleable balancing tests and open-ended exceptions, certainly helps explain a Religious Clause doctrine noted for its instability and uncertainty. Of course, one benefit for empiricists is that such instability and uncertainty makes a study of extra-judicial influences on judicial decisions, such as ours, more likely to bear fruit.

To assess the influence of extra-judicial factors on judicial outcomes, incident to our larger, on-going empirical analysis of religious liberty decisions in the lower federal courts, (13) we studied all digested Free Exercise Clause and accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. (14) One of our important findings is negative; specifically, judicial ideology was not a significant independent explanatory variable. (15) The absence of a judge-based ideological influence in the Free Exercise and accommodation context stands in stark contrast to the strong evidence of influence exerted by judge ideology that we found in a separate (though related) study of Establishment Clause cases. (16) In this way, we now see important and quite interesting variations between the two major streams of Religious Clause litigation (Establishment Clause and Free Exercise Clause) in terms of judicial ideology's influence (or lack thereof).

While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, among claimants, Muslims were significantly and powerfully associated with adverse outcomes before the courts. Among the various types of Free Exercise and accommodation cases, cases involving exemption from anti-discrimination laws enjoyed particularly high rates of success. Finally, while a judge's ideology did not prove important, a judge's ethnicity did. Specifically, Asian and Latino judges were particularly amenable to Free Exercise and accommodation claims. Moreover, while having a modest effect, judges who had been law professors also responded more positively to Free Exercise/ Accommodation claims.

Assessing the tug of extra-judicial factors on judicial outcomes in the religious liberty context is important for both obvious and non-obvious reasons. Insofar as religion "is among the most fragile of our freedoms," (17) how governments approach and resolve individuals' claims grounded in religious exercise warrants particular attention. Moreover, we are mindful that struggles with demands from its citizenry for religious tolerance, sometimes in the form of accommodation from legal mandates, are certainly not unique to the United States. In 2004, then-French President Jacques Chirac signed a law prohibiting French students from wearing symbols or clothing that were "conspicuously" religious in school. As Professor Viteritti observes, most understand this new French law to be directed against young Muslim women who wear headscarves. (18) Recognizing that the issues are important and cross national borders only increases the need for a deeper understanding of how judges decide religious liberty cases presented to them.

As is often the case in empirical work, our findings sometimes surprise and, on balance, paint a more complex and nuanced picture of the how extra-judicial factors inform Free Exercise and accommodation litigation outcomes. In Part I, we summarize our data and present our results in a table. Part II discusses our findings for the claimant variables; Part III does the same for the judge variables. In our Conclusion, we emphasize our results' limitations, locate them in the context of our larger study of religious liberty litigation, and consider ways in which our research could be expanded and developed...