Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts

Abstract

In our continuing empirical study of religious liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. Holding other variables constant, the likelihood of success for non-Muslim claimants in religious free exercise claims was 38 percent, while the probability of success for Muslim claimants fell to 22 percent (with the disparity being even higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to receive accommodation that was enjoyed by claimants from other religious communities.

Drawing on insights from legal studies, political science, and social and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society along with opposition to groups holding traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. As a new threat to religious liberty, the persistent uneasiness of many Americans about Muslims appears to have filtered into the attitudes of such well-educated and independent elites as federal judges.

Keywords: empirical legal studies, religious liberty, first amendment, Muslims, judicial decisionmaking, free exercise, free exercise of religion, law and religion, minority rights, civil rights, civil liberties, law and courts, cognitive psychology