Heise and Sisk on Religion, Public Schools, and Judicial Ideology

Michael Heise (Cornell) and Gregory Sisk (U. St. Thomas) have posted another in their excellent series of empirical pieces on religion and ideology in the courts. The piece is Religion, Schools, and Judicial Decisionmaking: An Empirical Perspective. Here is the abstract.  — MOD

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence.

One Step Forward, Two Steps Back

News from Iraq today demonstrates why more than one million Christians have fled the country since the the US-led invasion in 2003. A court in Baghdad has convicted three people of masterminding the attack on a Catholic church in that city last October that killed 68 people. Gunmen murdered worshippers at Mass before blowing themselves up. It was the largest massacre of Christians in Iraq since the war began.

These convictions are surely a sign of progress. Yet this very morning a car bomb exploded outside a Catholic church in Kirkuk, wounding at least 16. The disaster could have been much worse: car bombs outside two other churches in the city failed to detonate. Sunni extremists have been targeting Iraqi Christians, whom they see as infidels and Western collaborators, since the fall of Saddam. The attacks this morning seem to be an expression of defiance by the extremists: you can convict us in court, but we’ll still drive out the Christians.

The Kirkuk bombings demonstrate that, notwithstanding hopeful signs like today’s convictions, the situation remains dire. The rule of law seems to be advancing, and that is surely a good thing. But the intimidation campaign against Iraq’s Christians — one of the oldest faith communities in the world — shows little sign of stopping. — MLM


I just finished Bernard Lewis’s What Went Wrong?: Western Impact and Middle Eastern Response. I enjoyed the book very much — many interesting insights. Among these was a lovely point that Lewis made about polyphony. Lewis has an extended discussion of the comparative lack of influence which Western music has had on Middle Eastern culture — compared, that is, to Western art or Western literature. He then discusses the idea of polyphony as foundational not only to Western music, but to Western culture generally. In music, of course, polyphony means more than one melodic voice at the same time, interweaving with the others. Polyphonic music was at one time long ago officially banned from the Catholic liturgy, but men of genius like Palestrina were influential in rendering polyphony acceptable in, for example, magnificent settings of the Mass. The rest is polyphonic history (as the Masses of Bach, Mozart, and Beethoven, inter alia, attest). For me polyphonic music reaches its apotheosis not in the symphony (voices together) but in the concerto, where melodies are not only multiple, but clashing and rivalrous.

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Wexler on Government Disapproval of Religion

BU Professor Jay Wexler has posted an interesting new paper, Government Disapproval of Religion, on SSRN. Wexler notes that state and local governments increasingly take actions that disparage religious beliefs — a San Francisco ordinance condemning the Catholic Church’s refusal to allow gay adoptions, for example. He points out that such actions are subject to the Supreme Court’s endorsement test, which forbids state action that endorses or disapproves of religion, but argues that the test covers only “explicit negative references” to religion. That is, governments may not expressly disparage religion, but may take positions that incidentally offend religious believers. Wexler believes that his approach would allow government to function effectively, while avoiding messages that make particular religious communities feel like outsiders — the whole point of the endorsement test. Worth reading.