Government regulations can prove discriminatory to minority religions

November 07, 2001

University Park, Pa. -- Even modest changes in government regulation of religion have negatively impacted minority religions, which lack the clout of mainstream denominations, a Penn State researcher says.

"Minority religions are the first to benefit when religious regulations are lifted and first to be stifled when regulations are allowed. State regulations will prevent the startup of new minority religions and will curtail the activities of existing religious groups that lack power," says Dr. Roger K. Finke, professor of sociology and co-author of a study that analyzed 2,109 court cases on religion from 1981-1996, paying particular attention to the 1,307 cases involving the free exercise (religious freedom) clause of the First Amendment.

The study is the first to document that the U.S. Supreme Court Employment Division of Oregon vs. Smith decision of 1990 adversely affected minority religions. Legal scholars have long charged that prior to Smith, the state was required to have a "compelling interest" before denying religious freedoms, as ruled by Wisconsin vs. Yoder in 1972, but following Smith, the state could deny religious freedoms with laws that were formally neutral and general applicable. Yet, they offered little evidence to support this charge.

"The percentage of cases citing a compelling interest test were more than cut in half during the three and a half years the Smith decision was in effect," Finke says. "The percentage of compelling interest cases rose again to pre-Smith levels when Congress passed the Religious Freedom Restoration Act (RFRA) in late 1993, reinstating the compelling interest test. The Supreme Court, asserting its sole right to interpret the Constitution, declared the RFRA unconstitutional four years later."

The analysis by Finke and co-author John Wybraniec, formerly a doctoral student in sociology at Purdue University, found that minority religions, Christian and non-Christian, are far more likely to be involved in court decisions than mainline churches and far less likely to receive a favorable ruling.

Under the category of minority religions, Finke includes a wide variety of faiths: the Mormons, Jehovah's Witnesses, Protestant sects such as Assemblies of God, Pentecostal churches and some Baptists; assorted new religious movements; Native American religions; and Muslims.

Protestant sects, new religious movements, Baptists and Muslims are three times less likely than members of Christian mainline denominations to obtain a favorable ruling from the courts regarding freedom of religion. Contrary to conventional thinking, Native American religions fare somewhat better in court than any of the above, says Finke.

Nondenominational or independent Christian churches, Jews and Roman Catholics also have a poorer chance of receiving a positive ruling when compared to established Protestant churches such as the Methodist, Presbyterian and Episcopalian which are identified most closely with those of mainstream American society, the Penn State sociologist adds.

The researchers presented their findings in "Religious Regulation and the Courts: The Judiciary's Changing Role in Protecting Minority from Majoritarian Rule," in the September issue of the Journal for the Scientific Study of Religion.

The combination of Protestant sects; new religious movements; and Jewish, Muslim and Native American religions comprise only 18 percent of American church membership, but together they generate nearly 62 percent of the free exercise cases weighed by the courts, and nearly one half of all court cases related to religion. In sharp contrast are the mainline Protestant churches, which constitute 21 percent of U.S. church membership but only appear in 4 percent of religion cases, including free exercise cases, says Finke.

"While sects and cults make up a larger percentage of the cases coming before the courts, their rate for receiving a favorable ruling is relatively low: approximately 37 percent," Finke notes. "In contrast, mainline Protestants receive a favorable verdict in almost 70 percent of all decisions and almost 65 percent for free exercise claims.

"The success rate for Jews and practitioners of Native American religions falls below 50 percent, but they do better in the courts than Protestant sects and cults. Oddly enough, while Roman Catholics make up over 38 percent of the nation's church membership, they represent less than 8 percent of the free exercise cases," says the Penn State researcher.

Finke also is co-author of the book, "Acts of Faith: Explaining the Human Side of Religion" (University of California Press), along with Dr. Rodney Stark, professor of sociology and comparative religion at the University of Washington. The book received the American Sociological Association, Sociology of Religion 2001 Book Award.
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Penn State

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