Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions

125 Pages Posted: 16 Jan 2004  

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

Michael Heise

Cornell Law School

Andrew P. Morriss

Texas A&M School of Law; PERC - Property and Environment Research Center; George Mason University - Mercatus Center

Abstract

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much less has been written about whether judges' religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. In this comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking is abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion - religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior. Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we must not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense.

Keywords: Constitution, religion, judges, judicial decisionamking, empirical

Suggested Citation

Sisk, Gregory C. and Heise, Michael and Morriss, Andrew P., Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions. Ohio State Law Journal, Vol. 65, No. 3, 2004; Cornell Legal Studies Research Paper No. 04-015; Case Legal Studies Research Paper No. 04-17. Available at SSRN: https://ssrn.com/abstract=486148

Gregory C. Sisk (Contact Author)

University of St. Thomas School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

Michael Heise

Cornell Law School ( email )

310 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
607-255-0069 (Phone)
607-255-7193 (Fax)

Andrew P. Morriss

Texas A&M School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76133
United States

PERC - Property and Environment Research Center ( email )

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

George Mason University - Mercatus Center ( email )

3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States

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