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
 
FREE EXCERPT
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 QURAN, 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.

To continue reading

FREE SIGN UP