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Legal theorists have long believed that Christians stand a better chance at winning religious liberty cases in federal courts than do members of minority faiths. But new research by Gregory Sisk, a law professor at the University of St. Thomas, finds that exactly the opposite is true. Sisk talked with ct about his research and what it means for Christians in America.

Why did scholars believe mainstream Christians fared better than minorities in religious liberty cases?
Some suggested that this was because most judges on state and federal benches are Christians. Judges were thought to sympathize with those who expressed views consistent with their own.

But you didn't find that to be true?
Our research suggests that the opposite, in fact, takes place. Those who belong to minority faiths succeed at the same rate as religious liberty claimants in general. In contrast, those who hold a more traditional Christian faith, such as Roman Catholics and evangelical Baptists, are finding that their claims are significantly less likely to succeed in front of a federal court.

Why Catholics and Baptists especially?
There are a few possible explanations. One would be that the historical bigotry against Catholics and to some lesser extent evangelical Christians has persisted into the modern day and can be found even on the judiciary. But I'm inclined to reject that conclusion. In actually reading these opinions, there is simply nothing that suggests any kind of crude prejudice against Catholics or Baptists.

Looking into the data a little bit further, we found that the claims that traditional Christians tend to bring are a shot across the bow of the modern liberal secular ship of state. They tend to resist increased government supervision of church activities such as religious schools or they resist the application of anti-discrimination laws to religious institutions.

In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law-and-order agenda typically advanced by the Right. Today, the greater threat may come from the Left through imposition of anti-discrimination and social welfare requirements even against religious believers and communities.

So why don't Christians do as well in court?
Part of what might be occurring here is that judges, like anyone else, are troubled more by difficult problems close to home rather than those that seem far off. So when a judge examines a claim by a minority religious group, that they ought to be exempted from the rule requiring a photograph on their driver's license or that they need access to a sweat lodge for cleansing, the judge is unlikely to think about whether he or she actually disagrees with that position. They just regard it as something that's different and unusual and non-threatening.

But when traditional Christians raise claims that resonate with the culture wars in our society, judges find it more difficult simply to see it as a religious exemption case. They may instead consider whether they actually agree or disagree with the claim that's being made. Judges try, I think, quite sincerely to set aside their personal views, but judges are human beings.

Does the religion of the judge matter?
It does. We found, for example, that Jewish judges were far more likely to be favorably disposed towards claims of religious conscience. Our study also suggested that Catholic judges were more likely to respond favorably to religious liberty claims.

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December 2006, Vol. 50, No. 12