Constitutional Consequences

68 Pages Posted: 13 Oct 2023

See all articles by Netta Barak Corren

Netta Barak Corren

Harvard Law School; University of Pennsylvania - Carey Law School; Hebrew University of Jerusalem

Tamir Berkman

Hebrew University of Jerusalem - Faculty of Law

Date Written: September 18, 2023

Abstract

For over two hundred years of Supreme Court doctrine, judges and scholars have tried to figure out how the Court’s rulings impact ordinary citizens. Yet the answers often seem to depend on whose opinion you read or even which press releases you read. How can we actually measure the consequences of constitutional decisions?

This Article provides a new methodological inroad to this thicket—one which triangulates a nationwide field experiment, a longitudinal public opinion survey, and litigation-outcome analysis. We do so while focusing on a recent set of developments at the intersection of religious freedom and anti-discrimination law that transpired in Fulton v. City of Philadelphia (2021).

We find that Supreme Court decisions can have substantial behavioral and legal effects beyond a seemingly narrow holding. In Fulton, the Court avoided deciding the equality-religion conflict at the heart of the case for a fact-specific decision that should have been easy to circumvent. Yet our results suggest that the Court’s audience focused on the bottom-line message of the decision rather than the holding. Across the nation, foster care agencies became less responsive to same-sex couples. The public became more supportive of religious service refusals. And courts and litigants resolved all open disputes between equality-seeking governments and refusing religious agencies in favor of the agencies.

Our findings contribute to the development of an empirical approach to constitutional doctrine. Constitutional questions often require determining whether the harm to, or burden on, an individual or group is justified by a compelling state interest—and whether the means are narrowly tailored to that end. These tests often hinge on evidence, yet the Court rarely offers parties guidelines for substantiating their interests at the right level of precision. Our work provides both data and empirical tools that inform the application of this test in the realm of Free Exercise doctrine, equality law, and beyond.

Keywords: constitutional law, empirical legal studies, law and religion, first amendment, free exercise, religious liberty, equality, discrimination, foster care, audit studies, field experiment, expressive law

Suggested Citation

Barak Corren, Netta and Berkman, Tamir, Constitutional Consequences (September 18, 2023). New York University Law Review, Vol. 99, No. 3, 2024, Available at SSRN: https://ssrn.com/abstract=4529452

Netta Barak Corren (Contact Author)

Harvard Law School ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

University of Pennsylvania - Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Hebrew University of Jerusalem ( email )

Mount Scopus
Jerusalem, Jerusalem 91905
Israel

Tamir Berkman

Hebrew University of Jerusalem - Faculty of Law

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