Academic Legal Writing - Eugene Volokh [95]
Likewise, say that you're thinking about repeating the following claim (which I've often heard repeated) in your own work:
A BRIEF ASSESSMENT OF THE SUPREME COURT CASES ...
[A] study of the holdings in religion clause cases reveals far fewer victories for religious outgroups than the dominant story would lead one to expect .... As [an earlier article] has trenchantly noted, only Christians ever win free exercise cases. Members of small Christian sects sometimes win and sometimes lose free exercise claims, but non-Christians never win ....
By comparing Christians, who sometimes win free exercise claims, and non-Christians, who never do, this book excerpt seemingly implies that the Court or the Court's doctrine is somehow more hostile to non-Christians than to Christians.
As literally written, though, the statement “only Christians ever win free exercise cases” is incorrect. Cruz v. Beto (1972) upheld a Buddhist prison inmate's right to sue based on a prison's refusing to give him the same opportunity for religious worship as that given to Christian and Jewish inmates. Church of the Lukumi Babalu Aye v. City of Hialeah (1993) struck down a city ordinance that discriminated against practitioners of Santeria (an African religion mixed with “significant elements of Roman Catholicism,” but one so distant from traditional American Christianity that it can't properly be called a “Christian sect[]”). Torcaso v. Watkins (1961) struck down a law that discriminated against atheists on the grounds that it violated the claimant's “freedom of belief and religion” and “religious freedom”; though the case talks both about the Establishment Clause and the Free Exercise Clause, it was largely a free exercise case, and has been cited as such in other leading free exercise cases.
Referring back to the article that the book cites helps explain matters: The article said “the pattern of the Court's results in mandatory accommodation cases is troubling because, put bluntly, the pattern is that sometimes Christians win but non-Christians never do” (emphasis added). Mandatory accommodation claims—claims that the government must exempt a religious observer from a generally applicable law—are a subset of free exercise claims. The book mistakenly failed to limit its assertion to accommodation claims.
But even if you paraphrase the book's assertions to focus on mandatory accommodations, there would still be three important points that you should tell your readers.
1. Tell the reader the size of your set of cases: It turns out that only five Supreme Court mandatory accommodation claims have been won by the claimants, and these cases have involved only three different kinds of claims: (a) entitlement to unemployment benefits when a person was fired for observing his Sabbath (three of the five cases), (b) entitlement to unemployment benefits when a person was fired for a religiously motivated refusal to work in arms manufacturing, and (c) entitlement to an exemption from a compulsory education law.56
It's hard to infer much from a set this small—but if one wants readers to draw such an inference, one should acknowledge the size of the set, and explain why it's instructive despite its small size.
2. Tell the reader how the result would have come out had the inquiry been worded a bit differently: If we ask not who raised the claims in the five cases, but rather who practically benefited from those cases, we see that the holding of three of the five cases substantially (and perhaps primarily) benefited Jews, not just Christians. In 1963, when the first of these cases was decided, there were apparently under 350,000 American Christians