Religion and Judging on the Federal Courts of Appeals

Abstract

We construct a database of federal appellate cases involving religious liberties decided between 2006 and 2015, expanding and improving an existing database covering up to 2005. The data are used to investigate the role of religion in judicial decision making. We find that Jewish judges are significantly more likely than their non‐Jewish colleagues to favor claimants in religious liberties cases, but we find no significant effects for other minority religions. Our findings confirm previous findings in the literature, but we go a number of steps further than existing studies in uncovering the sources of Jewish judges’ influence. We conclude that the effect of Jewish judges comes through their increased concern for the separation of church and state—not through their heightened solicitude for the interests of religious minorities in practicing their religion or through preferential treatment of Jewish claimants. Further, our analysis of cases not involving religion shows that the pro‐claimant effect of Jewish judges is attributable not to a general liberal attitude but to a particular secular concern for the separation of church and state. Finally, we are the first researchers to go beyond individual effects and investigate the panel effects of judges’ religious affiliation. Our findings in this regard have suggestive implications for identifying the mechanism of panel effects.

Bias and Judging

“…Songer and Tabrizi (1999) find that evangelical state supreme court judges are more conservative across key social issue areas than are mainline Protestant, Catholic, and Jewish judges, while Pinello (2003) analyzes voting on LGBT-rights issues, finding that Jewish judges are more inclined to favor these issues and Catholic judges are less so, both in comparison with Protestant judges. Shahshahani and Liu (2017) provide perhaps the most in-depth examination of religion and judging. Examining federal courts of appeals cases involving religious freedom claims, they find that Jewish judges are more likely to favor claimants; a likely explanation, they argue, is that Jewish judges are more likely to be concerned about the separation of church and state.…”

The Dogma Within? Examining Religious Bias in Private Title VII Claims

“…Prior studies have typically attempted to gain purchase on the problem of religious bias by analyzing cases involving allegations of public discrimination, that is, discrimination in which the alleged perpetrator is the government (Heise & Sisk, 2013;Shahshahani & Liu, 2017;Sisk, 2005;Sisk et al, 2004;Sisk & Heise, 2012a, 2012b. These cases can be broadly separated into two categories: Those implicating the Establishment Clause of the First Amendment and those implicating the Free Exercise Clause of the First Amendment.…”

“…Our analysis builds on a series of previous studies that have already established that evidence for religious bias among judges is sparse, at least in cases involving the government. The most recent of these studies, conducted by Shahshahani and Liu (2017), found that only Jewish judges are more likely than their non-Jewish colleagues to vote in a discernible way and that this phenomenon is "best understood as a secularizing force keen on preserving the separation of church and state, rather than as a protective attitude toward practitioners of minority religions" (p. 718). Furthermore, other scholars have even found evidence to suggest that religious judges are actually "more likely to rule against fellow believers [than claimants of different faiths]" in cases connected to the Free Exercise Clause of the First Amendment or other federal provisions prohibiting governmental discrimination (Heise & Sisk, 2013, p. 1405.…”

Judging Religion and Judges' Religions

“…There is reason for some caution here, however, as a recent study found no evidence of panel effects in religious freedom cases brought in the US Federal Courts. 94 In addition to the above, we might imagine other methods by which judges could engage more directly with their religious and other normative priors on an explicit and regular basis. There are, however, challenges specic to the judicial setting in institutionalizing practices that encourage selfconsciousness in other elds.…”