Tuesday, February 28, 2006

Politically correct jurisprudence?

Greg Sisk, a law professor at St, Thomas, blogging at the Volokh Conspiracy discussed the results of a survey that he conducted with two colleagues in which they attempted to determine how likely different religious groups fared in religious liberty cases in the courts over the past two decades. Here is his conclusion:

First, those religious groupings that both today and historically have been regarded as outsiders or minorities, such as Jews, Muslims, Native Americans, and various others (including Jehovah's Witnesses and Christian Scientists), did not succeed or fail in making religious liberty claims at a rate (controlling for all other variables) that was significantly different than for other religious classifications. In sum, with the potential exception of Muslim claimants in certain claim subcategories, religious minorities did not experience disproportionately unfavorable treatments in the federal courts of the 1980s and 1990s.

Second, two categories of religious affiliation by claimants emerged as consistently and significantly associated with a negative outcome:Catholic (at the 99% probability level) and Baptist (at the 95% probability level).

In other words, Catholics and Baptists asserting religious liberty claims were more likely to lose that groups traditionally regarded as "outsiders." While some will claim that this reflects an anti-Christian bias (and it might), I'd suggest that it also may be an artifact of what JusticeScalia calls the "law profession" culture. Over the past forty years or so, legal training has emphasized taking special care to protect groups that are said to have been "historically disfavored" (think all of the stereotypical "politically correct" minorities) who are said to be discrete and insular minorities unable to protect themselves in the political process.

This tendency was, perhaps, an understandable response to historic discrimination, but probably was taken - and continues to be taken - too far. In emphasizing the need to include those who were outsiders, we may just have created a new class of disfavored groups. In emphasizing solicitude for minorities, we may be damaging the way in which the majority culture states and strengthens its values.

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