First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship addressing religion and speech topics:
 
1. Michael Heise (Cornell Law School) and Gregory C. Sisk  (University of St. Thomas School of Law -Minnesota), Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts, 110 Mich. L. Rev. --- (2012). The abstract states:

In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.

Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establish¬ment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.

A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.

Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.

2. Alexander Volokh (Emory University School of Law), Everything We Know About Faith-Based Prisons.The abstract states:

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.” It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested. This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected. Some studies in this category find no effect, but some do find a modest effect. But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.

Thus, based on current research, there’s no strong reason to believe that faith-based prisons work. However, there’s also no strong reason to believe that they don’t work. I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.

3. Shane J. Ralston (Pennsylvania State University – Hazleton), American Enlightenment Thought , forthcoming in INTERNET ENCYCLOPEDIA OF PHILOSOPHY. The abstract states:

Though there is no consensus about the exact span of time that corresponds to the American Enlightenment, it is safe to say that it occurred during the eighteenth century among thinkers in British North America and the early United States inspired by the ideas of the British and French Enlightenments. Based on the metaphor of bringing light to the Dark Age, the Age of the Enlightenment (Siècle des lumières in French and Aufklärung in German) shifted allegiances away from absolute authority, whether religious or political, to more skeptical and optimistic attitudes about human nature, religion and politics. In the American context, thinkers, such as Thomas Paine, James Madison, Thomas Jefferson, John Adams and Benjamin Franklin, invented and adopted revolutionary ideas about scientific rationality, religious toleration and experimental political organization - ideas that would have far-reaching effects on the development of the fledgling nation. Some coupled science and religion in the notion of deism; others asserted the natural rights of man in the anti-authoritarian doctrine of liberalism; and still others touted the importance of cultivating virtue, enlightened leadership and community in early forms of republican thinking.

4. Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy), The Hollow Promise of Freedom of Conscience. The abstract states:

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates – most notably in the medical and military contexts – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, concluding that claims about the importance of conscience in American society have been highly exaggerated.

This Article first clarifies contemporary understandings of conscience by systematically analyzing its treatment in positive law. It looks beyond the traditional medical, military, and religious contexts, giving a descriptive account of law’s treatment of conscience across various substantive realms, including tax evasion, civil disobedience, discrimination, and even violent terrorism. It demonstrates that legal accommodations are typically granted on an ad hoc basis, only to the extent that exercises of personal conscience align with generally accepted and politically palatable moral principles. If there is a consistent and principled justification for treating cases differently, our legal system has thus far failed to provide it.

This Article argues that, in order for American law to reflect the kind of robust, autonomy-based respect for conscience to which every pluralistic society aspires, we must agree on a content-neutral guiding principle for negotiating future claims for legal accommodation. The alternative, the Article posits, is to concede that American society has abandoned the fundamental purpose of conscientious accommodation – namely, protecting the individual from oppressive majoritarian understandings of morality.

5. Chi Mgbako (Fordham University - School of Law), Aiding Children Accused of Witchcraft. The abstract states:

My law students’ research revealed that witchcraft accusations against children in countries including Angola, Cameroon, Central African Republic, the Democratic Republic of Congo, and Nigeria have increased in recent years, sparked and sustained in part by unrelenting poverty and conflict, family structures weakened by HIV/AIDS, and burgeoning religious sects that encourage child witch-hunts. These accusations often result in tragic tales of child abuse and abandonment.

During the mobile legal-aid clinic we proposed potential solutions tailored to each client's case, such as legal advice dissuading clients from making witchcraft accusations and police referral letters in serious cases of violence. But with some cases, we had to humbly accept that the power of the law is not always enough.

6. Charlotte Garden, Citizens, United and Citizens United: The Future of Labor Speech Rights, forthcoming in William & Mary Law Review. The abstract states:

Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest labor unions - even though the decision applies equally to unions and for-profit corporations. The reason is clear: there exist both practical and structural impediments that will prevent unions from benefitting from Citizens United to the same extent as corporations. Therefore, Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible “silver lining” for labor. It posits that, in articulating a wide-ranging vision of associations’ free speech rights, the Court undermined the intellectual basis of a lengthy string of cases limiting the First Amendment protection applicable to labor-related speech in other contexts, including picketing, boycotting, and striking. Additionally, by discounting the First Amendment interests of dissenting shareholders, Citizens United also calls into question the validity of restrictions on unions’ use of lawfully collected dues and fees for political speech and new organizing. Accordingly, this Article concludes that Citizens United has the potential to impact significantly unions’ First Amendment rights outside of the campaign finance arena.

JFB