Why we lose

Yesterday I blogged on law professor Greg Sisk's finding that the religious groups most likely to lose religious liberty cases are Catholics and Baptists. I suggested that the reason may not be an anti-Christian bias but exaggerated solicitude for people perceived to be minorities. Today Sisk splits the difference in an interesting way. He agrees that it is, in some ways, easy for us to give a pass to people who we see as outside the mainstream:

William Marshall has argued that “[a] court is more likely to find against a claimant ... when the religion is bizarre, relative to the cultural norm.” I submit that the opposite may be more common, given the natural human tendency to respond more vigorously to the perceived threat next door than to the peculiarity on the far side of town.

Thus, when we hear stories of strange (to us) religious beliefs and practices, our reaction tends to be one not of antipathy or disagreement, but of detached curiosity. Because such unconventional thinking or conduct is so distant from our own, we are less likely to compare those attitudes and actions against our own beliefs and practices.

But Sisk also argues that Baptists and Catholics are more likely to be at odds with the values of the law profession culture:

During the course of American history, both the political left and the right at different times and in different ways have posed threats to our most cherished liberties, whether freedom of speech, procedural protections against government action, or free exercise of religion. In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right. Today, the greater threat may come from the left through imposition of anti-discrimination and social welfare requirements even against private associational groups, such as religious believers and communities.

What Catholics and evangelical Protestants tend to hold in common today is a general adherence to traditional or conservative social values that may conflict with the commands of liberal governments. Thus, when traditionalist Catholics and Baptists resist governmental regulation by seeking exemptions from, for example, anti-discrimination or licensing laws, they run against the grain of mainstream secular society in certain regions of the country.

Oh, and the other thing that happens is that any push back against the elite secularist view is denounced as incipient theocracy.