Flawed law review articles make bad politics
Over at Volokh Conspiracy, I came across a law professor, Gregory C. Sisk, who has written a very poorly reasoned law review article that attempts to prove that Catholics and Baptists are unfairly treated in our federal court system (district (trial) courts, courts of appeal and the Supreme Court). In the linked post is a pdf for the law review article (it's long, as are, admittedly, most law review articles).
The law review article is poorly written because it was hard to get to the actual data in between the rhetoric and regression analyses. But, deep inside the article, at page 1049 (the article begins on page 1021 and ends on page 1061), we read the following that exposes the flaws in Professor Sisk's reasoning and conclusions:
"Among the most sacred cows of modern secular liberalism are the social welfare and regulatory system in which all are obligated to participate and the principle of anti-discrimination, which constantly expands to cover new categories of protected persons and new sectors of society (employment, education, housing). In this regard, as revealed by the underlying individual cases that provide the cumulative database for our study, the typical claim by a Catholic or Baptist tends to be a shot across the bow of the secular ship of state. Thus, as exmamples of unsuccessful claims, Catholic claims in our database include objections by Catholic colelges, schools or institutions to application of employment discrimination laws, resistance to application of labor bargaining laws to Catholic entities, and objection to withdrawal of accredition of a Catholic hosptial based upon its refusal to provide sterilization and abortion training. Simliarly, unsuccessful Batptist claims in our database include challenges to safety and health regulation or other licensing of religious schools, resistance to enforcement of labor and wage laws against a religious school, a claim for exemption of the church from under the state workers' compensation statute, resistance to inclusion of church workes in the social security system, and a challenge to an unemployment discrimination investigation regarding discharged church employees. In sum, claims for religious accomodation by traditionalist religions, such as Catholics and Baptists, are especially likely to come up hard against central, might we say, 'sacred,' features of the modern secular legal regime." (Footnoted case cites omitted; italics added)
The footnoted cases show a variety of age discrimination claims against the Catholic church and one sex discrimination in a college settting (not a challenge to require women priests, it must be noted). The Baptist cases were unsuccessful challenges for an exemption from licensing of a child care facility in a Baptist church and other labor related issues.
My question for Professor Sisk: Does Professor Sisk really believe that if a Jewish temple or Muslim temple had brought these cases, they would have won on religious grounds, i.e. the "free exercise" (read: privacy) of religion clause of the First Amendment? He is a putz if he thinks so. These cases largely, if not completely undermine his analysis and conclusion that somehow Catholic and Baptist churches are discriminated against. These cases are not the same as when an individual Amish family won the right not to be forced to send their kids to public schools or a Jehovah's Witness' right not to be forced to say the pledge of alligence in school. Unlike the decisions cited above by Professor Sisk, these decisions benefited every individual American, as well as any and all religious Americans.
Neither are the cases that held against the paricular churches like the truly anti-religious practice rulings of the majority of "conservatives" on the US Supreme Court (including Scalia) who refused to allow peyote smoking ceremonies for ancient Indian religions that were being honestly practiced in the modern day--or that said a rabbi couldn't wear even a small Jewish headcovering underneath his captain's hat in the military, another early 1990s decision. Both of these bad decisions, by the way, were superseded by subsequent (and bi-partisan) Congressional legislation in an omnibus "freedom of religion" act in 1993.
In all, what really galls Professor Sisk is that religious neutral employment and health/safety laws interfere with private business, whether religious or otherwise. He is an extremist libertarian cloaking his Ayn Randian ideology with protests of religious discrimination in the court system. I am surprised and disappointed that the University of Colorado Law Review would think his snarky rhetoric--more appropriate for a blog--and misleading regression models are worthy of that publication. To put it another way, he is upset because religious institutions can't discriminate in matters that do not go to the essence of their religions. Or more simply, he is saying, "The discriminator can't discriminate? Then, that's discrimination!"
Here, though, is Professor Sisk, over at Volokh Conspiracy, trying to defend himself. He actually writes the following, which he thinks is persuasive:
"(T)he diminished success of Catholics and Baptists may be attributed to their greater tendency to resist application of various social welfare regulations and anti-discrimination laws to church-related institutions, because judges regard such regulatory measures and civil rights laws as serving especially compelling public interests.
"Some commentators have seized upon precisely this point, which they characterize as going to the legal merits of the claim. Such an appraisal of merit, however, shades into little more than a subjective aversion to the cultural values expressed by traditional religionists and a subjective preference for the present-day priorities of secular liberalism.
"Why should the welfarist, regulatory, and anti-discrimination agendas of the moment be regarded as more impervious to claims of religious conscience than the old-style governmental interests of law and order and loyalty to American democracy that were invoked in days past to suppress minority religious groups? Should we not be suspicious of the rather convenient (and downright dangerous) argument that the scope of religious liberty for others neatly dovetails with and is calibrated to our particular political preferences?"
What is "downright dangerous" about asking a religious institution (again, whether it is Catholic or Muslim is of no relevance) not to discriminate against older Americans in its employment, or complying with neutral licensing or health and safety guidelines for a child care facility? If there is anything dangerous to our society, it would be the day religious institutions can thumb their collective noses at such requirements. One begins to wonder whether a lack of common sense is a requirement to become a law professor. Ivory tower indeed.