Group Efficacy

Material Information

Group Efficacy Religious Interests in the Court
Oates, Kathryn
Place of Publication:
[Gainesville, Fla.]
University of Florida
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1 online resource (141 p.)

Thesis/Dissertation Information

Doctorate ( Ph.D.)
Degree Grantor:
University of Florida
Degree Disciplines:
Political Science
Committee Chair:
Wald, Kenneth D.
Committee Members:
Smith, Daniel A.
Martinez, Michael D.
Dale, Elizabeth
Hendershot, Marcus
Graduation Date:


Subjects / Keywords:
Amicus curiae briefs ( jstor )
Catholicism ( jstor )
Conservatism ( jstor )
Funding ( jstor )
Interest groups ( jstor )
Law schools ( jstor )
Legal briefs ( jstor )
Liberalism ( jstor )
Political organizations ( jstor )
Religion ( jstor )
Political Science -- Dissertations, Academic -- UF
american, amicus, brief, christian, court, group, interest, judiciary, politics, religion, religious, right, united
Electronic Thesis or Dissertation
born-digital ( sobekcm )
Political Science thesis, Ph.D.


This project examines interest group participation in the Supreme Court. Scholars agree that the power of the judiciary has been increasing over time. It is also clear that as this has occurred, interest groups have attempted to use this branch more often to seek political impact. Groups approach the court in many ways; one of the most visible is filing an amicus curiae brief in a case. The scholarly work that has been done has mixed results with regards to whether or not these briefs are successful in influencing case outcome. The puzzle then, is why is the number of amicus curiae briefs, and thus the amount of money groups must put toward them, continuing to increase significantly if these briefs are not always relevant? Case outcome is obviously not all that matters to these groups. The substantive case area examined here is religious interests. I build on the most comprehensive judicial database available, the United States Supreme Court Database (Spaeth 2007) by adding variables to specific cases regarding the amicus curiae briefs and the party they are supporting. This project includes quantitative analyses of efficacy and collaboration in two divergent case types, symbolic benefit and tangible benefit cases. The final section includes a qualitative analysis and case studies of several of the most active groups. ( en )
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In the series University of Florida Digital Collections.
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Includes vita.
Includes bibliographical references.
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Description based on online resource; title from PDF title page.
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This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Thesis (Ph.D.)--University of Florida, 2010.
Adviser: Wald, Kenneth D.
Statement of Responsibility:
by Kathryn Oates.

Record Information

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University of Florida
Holding Location:
University of Florida
Rights Management:
Copyright Oates, Kathryn. Permission granted to the University of Florida to digitize, archive and distribute this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.
Resource Identifier:
781180880 ( OCLC )
LD1780 2010 ( lcc )


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2 2010 Kathryn Lindsay Oates


3 To Ryan & Jesse & Charlie & Mom


4 ACKNOWLEDGMENTS I thank my family for being so supportive, specifically my mother for several summers of babysitting. I thank Dr. Wald and Dr. Hendershot for putting in the extra effort to work with me on this project from afar.


5 TABLE OF CONTENTS page ACKNOWLEDGMENTS .................................................................................................. 4 LIST OF TABLES ............................................................................................................ 7 LIST OF FIGURES .......................................................................................................... 8 ABSTRACT ..................................................................................................................... 9 CHAPTER 1 INTRODUCTION .................................................................................................... 11 2 GROUP EFFICACY IN JUDICIAL DECISION MAKING ......................................... 14 Interest Gr oup Efficacy in Supreme Court Decision Making ................................... 14 Groups in the Courts ........................................................................................ 14 Judicial appointments ................................................................................ 14 Agenda setting ........................................................................................... 15 Courts as policy forums ............................................................................. 17 The Use of Amicus Curiae Briefs as Political Participation ............................... 19 Quantitative assessment of brief importance ............................................. 22 Amicus briefs and agenda setting .............................................................. 22 Case outcome and amic us briefs ............................................................... 24 Group collaboration in amicus briefs .......................................................... 32 Qualitative Assessment of Brief Importance ..................................................... 34 Conclusions ...................................................................................................... 37 Divergent Interest Group Goals Tangible V ersus Symbolic Benefits ...................... 37 Interest Group Politics on a Broader Scale ....................................................... 37 Early Interest Group Scholars and Pluralism .................................................... 38 Iron Triangles Versus Issue Networks .............................................................. 40 Symbolic Benefits and Group Maintenance ...................................................... 43 Conclusions ...................................................................................................... 46 Conclusions ............................................................................................................ 48 3 GROUP EFFICACY IN RELIGIOUS CLAUSE DOCTRINE .................................... 49 Specifying the Issue Area ....................................................................................... 49 Religious Group Typology and the Religious Clauses ............................................ 50 Religion in Politics ............................................................................................ 50 Religious Political Groups ................................................................................. 53 Institutionalization ............................................................................................. 60 Avenues of Participation ................................................................................... 61 Sample Data ........................................................................................................... 64 Categorizing Religious Group Organizations and Distinguishing Benefit Types ..... 68


6 Conducting a Decision Making Analysis ................................................................. 72 Variables .......................................................................................................... 72 Empirical Hypotheses and Estimation Strategies ............................................. 76 Thinking About Participation Qualitatively ............................................................... 78 4 RELIGIOUS GROUP PARTICIPATION PATTERNS .............................................. 80 Religious Traditions ................................................................................................ 80 Conclusions ............................................................................................................ 86 5 DECISION MAKING ANALYSIS OF GROUP EFFICACY AND COLLABORATION ................................................................................................. 87 Efficacy ................................................................................................................... 87 Collaboration Analysis ............................................................................................ 96 Religious Traditions ................................................................................................ 97 Discussion .............................................................................................................. 98 6 QUALITATIVE ANALYSIS: A CROSSSECTION OF FO UR GROUPS ............... 106 Case Studies ........................................................................................................ 106 Group Overviews .................................................................................................. 107 American Jewish Congress ............................................................................ 107 United States Conference of C atholic Bishops ............................................... 109 Christian Legal Society ................................................................................... 110 Baptist Joint Committee for Religious Liberty ................................................. 112 Groups, Benefit Typologies and Efficacy .............................................................. 114 Discussion ............................................................................................................ 117 7 CONCLUSION ...................................................................................................... 118 Major Findings ...................................................................................................... 118 Future Research ................................................................................................... 122 APPENDIX: GROUP CODING .................................................................................... 124 LIST OF REFERENCES ............................................................................................. 135 BIOGRAPHICAL SKETCH .......................................................................................... 141


7 LIST OF TABLES Table page 3 1 Groups that filed ten or more briefs .................................................................... 69 3 2 Statistics of Interest ............................................................................................ 75 5 1 Logit Regression Model of the Influence of Amici Curiae by number of briefs in the U.S. Supreme Court, 19532005 Terms ................................................... 89 5 2 Logit Regression Model of the Influence of Amici Curiae by number of groups in the U.S. Supreme Court, 19532005 Terms ................................................... 93 5 3 Collaboration by Case Benefit Type ................................................................... 96 5 4 Collaboration by Case Benefit Type by Side ...................................................... 96 5 5 Logit Regression Results, Religious Tradition Participation on Case Outcome .. 98 5 6 Collaboration by Case Benefit Type by Religious Tradition ................................ 98


8 LIST OF F IGURES Figure page 2 1 Supreme Court Cases Containing at Least One Amicus Brief ........................... 21 2 2 Participation as an Amicus Curiae on the Merits of Supreme Court Cases, by Group Type ......................................................................................................... 23 3 1 Cases per Issue by Supreme Court Term .......................................................... 66 3 2 C ases per Benefit Categories by Specific Issue ................................................. 71 4 1 Participation by Case Type and Religious Tradition ........................................... 81 4 2 Participation by Detailed Case Type and Religious Tradition ............................. 81 4 3 Percent Participation by Case Type ................................................................... 83 5 1 Predicted Probability of Separation Outcome by Number of Separation & Neutral Briefs ...................................................................................................... 91 5 2 Predicted Probability of Separation Outcome by Number of Accommodation Briefs .................................................................................................................. 92 5 3 Predicted Probability of Separation Outcome by Number of Separation & Neutral Groups ................................................................................................... 94 5 4 Predicted Probability of Separation Outcome by Number of Accommodation Groups ................................................................................................................ 95 6 1 Case Study Group Participation Overlap by Citation. ....................................... 115 6 2 Group Participation by Benefit Case Type. ....................................................... 116 6 3 Percentage Case Won per Benefit Category. ................................................... 116


9 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy GROUP EFFICACY: RELIGIOUS INTERESTS IN THE COURT By Kathryn Lindsay Oates December 2010 Chair: Kenneth D. Wald Major: Political Science This project examines interest group participation in the Supreme Court. Scholars agree that the power of the judiciary has been increasing over time. It is also clear that as this has occurred, interest groups have attempted to use this branch more often to seek political impact. Groups approach the court in many ways; one of the most visible is filing an amicus curiae brief in a case. The scholarly work that has been done has mixed results with regards to whether or not these briefs are successful in influencing case outcome. The puzzle then, is why is the number of amicus curiae briefs, and thus the amount of money groups must put toward them, continuing to increase significantly if these briefs are not always relevant? Case outcome is obviously not all that matters to these groups. The substantive case area examined here is religious interests. I build on the most comprehensive judicial database available, the United States Supreme Court Database (Spaeth 2007) by adding variables to specific cases regarding the amicus curiae briefs and the party they are supporting. This project includes quantitative analyses of efficacy and collaboration in two divergent case types, symbolic benefit and tangible


10 benefit cases. The final section includes a qualitative analysis and case studies of several of the most active groups.


11 CHAPTER 1 INTRODUCTION Students at Davidson College in Raleigh, NC have just been told they cannot have state police on their campus. The Court of Appeals ruled that because the school is a religious institution, the presence of commissioned law enforcement officers violat es t he Establishment Clause. This school has consistently been ranked among the best liberal arts colleges in the nation and the Associated Press (2010) reports that, Davidson and schools like it have well established principles of academic freedom and religious tolerance Other schools across the state of North Carolina are working to determine whether their departments will fall under the ruling. Principles of entanglement have continued to engage society and politics, although, acco rding to the New York Times, it seems to make people uncomfortable on the rare occasions it is raised (Liptik 2010) Whether religion or its interpreted place in American society matters to the masses, religious groups have a presence in the interest group universe, and this presence has translated into activity at all levels of government. When court cases receive national attention, interests flood the issue to make themselves heard. This project examines the intricacies of interest group and judicial politics within the niche of religion clause cases pertaining to separation of church and state. A recent consensus exists among judicial scholars that judicial power is expanding. This expansion has major implications in American politics. One such implication is the impact of judicial expansion on interest group behavior. If judicial power is truly increasing, we should see an increase in the use of the courts by interest groups engaging in political action. We have seen more attention given to religious influence in


12 our various branches of government. Religious interests groups have been growing in number and power. If the courts are truly expanding in power, it makes sense that interest groups would seek to maximize their utility of this political avenue. Much attention has been given to interest group influence within legislatures, but interest groups could be seeking to gain more access in the judiciary as well. Those concerned with the democratic aspects of interest group politics should spend time examining an increasing influence in the courts. Furthermore, those who concern themselves with the separatio n of church and state must also consider religious influence in the courts. I examine the nuance of interest activity in the courts by assessing efficacy as it relates to benefits sought by participating groups. Do groups participate because they intend t o immediately influence outcome? Or, are they asserting themselves in order to rally their membership? I suggest that the goals of participation vary between group types, and that these goals are different depending on the type of benefit a win in cour t would actually provide to an interested party. Not every political battle has material rewards. Especially when it comes to ideological groups, like religious organizations, there is potential for symbolic or intangible benefit instead. This project begins by delving into the literature that encompasses judicial politics, interest group politics, and even religious interests in the political sphere. These areas are vast, but their overlap and sometimes conflicting expectations provide a puzzleis it all about a win as judicial scholars might suggest? Or do interest group scholars have it right when they suggest that tangible benefit is not all that counts? The answer I suggest is found by drawing on interest group theories regarding incentives and


13 o rganizational maintenance. Next, I set up a research design to outline my approach that includes an overview of religious group political participation, historically. Chapter 4 explores the originally collected data with regard to religious tradition as the subject area of the case selection. The subsequent two chapters include empirical and qualitative analyses to address the puzzle of what winning really means to these interests.


14 CHAPTER 2 GROUP EFFICACY IN JUDICIAL DECISION MAKI NG Interest Group Effica cy in Supreme Court Decision Making Groups in the Courts Interest groups have always used the courts to some extent. Specifically, they have used the courts to achieve policy goals by way of filing litigation, filing briefs or influencing judicial appoint ments and setting the political agenda. This is especially true when they have had trouble influencing other branches and when they intend to influence policy. Historically, scholars have paid more attention to the use of the courts by liberal citizen groups, but some have noticed an upward trend in participation by conservative groups (Brown 2002; Epstein 1985; Hacker 2005; O'Connor and Epstein 1983) There are several levels in which interest group participation could be envisioned in the courts. Groups can attempt to influence the process by which those on the bench are selected. They can file cases and actually be a litigating party, and they can seek to initiate collaborative action in several different states at the same time for a particular issue. Groups can also fund litigants that they supp ort who may or may not be able to afford the suit themselves. As is the focus here, they can file an amicus brief advocating for a case to be heard, or advocating for a particular side of a case that will be argued in the court. Judicial appointments Bent ley was probably the first to mention the nomination process as a possible influential point for interest groups in the judiciary (Bentley 1908) but it was quite some time before scholars picked up on this idea and really saw interest groups engaging in activity during the nomination process. OConnor specifically points to a range of


15 activities that interest groups may be involved in (2005, 321) The first includes internal group activities such as testifying to the Senate Judiciary Committee or lobbying senators. The second includes activities she terms coali tional inter group activities, such as supplying staff or financial support to other groups and participating in strategy sessions. Finally, participation occurs in external group activities, such as conducting polls and building public awareness of the n ominees. She goes on to describe the nomination process (and its ultimate failure) of Robert Bork in 1987 in which almost 150 different interest groups claim to have participated. Caldeira, Hojnacki and Wright (2000) assess the strategies used by organiz ed interests in the federal judicial nomination process. They support OConnors conclusions by empirically affirming the many different types of strategies used. The overall political participation by groups varied based on the importance of the office, but the tactics were actually quite consistent regardless of importance. They also suggest that groups are actually trying to influence outcomes of nominations, and are not just participating to show members their dues are being well spent. OConnor als o cites figures of money spent by interest groups during the nomination process; somewhere between an admitted two million and reported ten to fifteen million dollars was spent by Bork opponents (these conflicting reports come from liberal groups and Bork supporters) (O'Connor 2005, 334) Ne ither attention nor money seems to be spared in interest group activism in the judicial branch. Agenda setting Interest groups may also become active in the courts to set the agenda for other political arenas. Even if groups lose the case for which they are advocating, there is enormous importance in gaining publicity alone for their issue (Epp 2005; McCann


16 1994) If the groups gain momentum through publicity, the case can be used as a springboard to initiate Congress into action in regard to that particular cause (Epp 2005, 348) Groups are mobilizing the law when they go to court, win or lose (Mather 2005, 255) Publicity is altogether different than is actual case outcome. Caldeira and Wright engaged in a detailed study that specifically addressed whether briefs were filed mo re at the agenda setting (certiorari) stage, or the merit stage of a case. They did not find evidence that supported high levels of success at the certiorari stage, although they mention that groups simply may not be taking advantage of particular agendasetting brief utility. Proponents of Political Opportunity Structure Theory argue that groups will be more successful if the political structure is open to them. This theory has also led to the concept of forum shopping or avenue shopping, as Truman (1951) briefly discussed. Mather argues that those that do not, or cannot, win in legislative or executive politics attempt to fare better in the courts; that much of American politics is moving issues from one sphere of government to anotherenterprising policy entrepreneurs routinely take advantage of the multiple options available to them (2005) OConnor and Epstein argue similarly (19811982) Yet another scholar, Charles Epp (2005) discusses a comparable idea, that courts are attractive for excluded groups especially because the number of American courts is so large. The political opportunity seems to exist in the courts for any number of groups that have not been successful in infiltrating either of the other two branches of government. Opportunity Structure scholars would expect to see participation in the court linked to case outcome and thus policy change, matching the expectations of judicial efficacy.


17 Jack Walkers (1991) research on interest groups in Mobilizing Interest Groups in America was a landmark publication based on survey data from the 1980s. He devotes a chapter to groups in the courts and finds that citizen and rights based groups will frequent the courts more than other types of groups such as trade organizations or business lobbies because group goals and other characteristics allow them to utilize the advantages of the court in policymaking. He also points out that these groups are in the fight for the long haul, so immediate policy success may not be necessary to foster participation in this avenue. The use of courts as agendasetting and attentiongarnering avenues lends itself more to symbolic benefits. The goal here isnt necessarily a policy outcome that would affect change for groups, but instead it is to draw attention to certain problems they face. Competing political opportunity s tructure suggests otherwise, if groups have not been successful in other avenues, perhaps they can influence policy in the courts. As a method of participation, it may be less expensive to look to the courts for agendasetting purposes than it is to parti cipate in the nomination game. However, if groups are actual litigants, it may be just as, or even more, costly. Courts as policy forums Rosenberg (2005, 281) tells us that Courts in the United Statesare forums for major policy debates. Caldeira and Wright (1990) support this view. Because a chief objective of an interest group is to influence policy, it is therefore necessary that the interest group interact with as many political actors who have an impact on this policy as possible. The courts policy decisions also help to explain why groups become involved in the judicial nomination process ; the more that groups recognize the power of the judiciary, the more they seek to influence it in any way possible. Not only do groups


18 seek the court as a policy forum, they do so rationally. Howard (2007) uses tax litigation to show patterns in which groups seek particular court forums where they believe they can be successful. When groups turn to the courts for pol icy decisions, they are seeking benefit of some form to their organization. The policy decisions exemplify what particular groups are fighting for. Agenda setting and policy outcome can be difficult to differentiate because they both begin with the same step: bringing a case to court. However, the difference is in whether these groups truly believe their case has a likelihood of being heard and ruled on in their favor If they believe they can win, it is evidence of groups seeking the courts as a policy forum. If the group has littleto no hope of winning, it is likely that it is seeking attention in a way that would lend itself solely to purposive benefit. The courts role for social change has been perhaps addressed most directly in Rosenbergs Hollow Hope(1991) Rosenberg examines the Supreme Court decisions that are touted as bringing forth big policy changes individually such as Brown v Board of Education(1954) and Roe v Wade (1973). This seminal book argues that the courts role in policymaking is constrained, meaning that by itself, it has little to no effect of bringing about social change. Specifically, courts depend on political support to produce reform. This might include legislation or enforc ement, among other things. Though the project was a series of case studies, Rosenberg argues that the judiciarys lack of implementation powers will constrain the impact of almost any case. Social change that occurs that is attributed to cases is actually a result of the political climate already being primed for that particular change. Consequently, Rosenberg does not see litigation as a


19 highly effective means of participation by groups. The argument in Hollow Hope does leave room for amicus brief influe nce. Although we would assume a brief would have less influence on social change than a litigant would, groups do not have to put forth as much effort or resources to file them. Therefore the payoff for using briefs as participation can be measured differ ently than that for litigants. Assessing the political activity of religious interest groups is too broad for one project alone. Therefore this project specifically looks at these groups within a context of one particular set of cases in the Supreme Court The Use of Amicus Curiae Briefs as Political Participation The literature describing interest groups in the judiciary is expansive and covers diverse methods of participation. As the number of active interest groups continues to climb, these groups seek to maintain a presence not only within the legislative policy making branch, but also in the judicial branch. There are many different levels of activism at different stages of the court process in addition to differing strategies used by various groups. A number of scholars find that amicus curiae briefs have a significant role, while others suggest less influence. The definition of amicus curiae is this: A friend of the court. A term applied to a bystander who without having an interest in the cause, o f his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge (Bouvier 1914, 188) However, scholars have recognized the changing narrative of the amic us brief: Krislov (1963) states The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not oth erwise represented. At this level the transition is completeThus the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to


20 advocacy. Contemporarily, there is an ulterior motive for a party filing a brief; m ost certainly this is the case in regard to the briefs filed by interest groups. In order to file a brief, both parties to the litigation must agree to it. If they do not, the filer must motion to the court for permission to submit the brief. This perm its virtually unlimited amicus curiae participation. The Supreme Court rarely denies these motions, when they are required (Caldiera and Wright 1990) OConnor and Epstein (19811982) empirically tested this notion by looking at motions from 19691981; t hey find that the Court denied only 11% of motions. Amicus curiae briefs can be submitted at two stages. Initially, the brief may be filed to support whether or not the court will actually hear a case. Once it is decided that the court will hear the case, groups (and individuals) have the second opportunity to file briefs. This study will only address cases that were granted a writ of certiorari, meaning that they were actually heard in front of the Court even though briefs were documented at both levels. The Court recognizes amicus curiae briefs as useful and as an opportunity for third party representation (Krislov 1963) Furthermore, federal, state and private interests all utilize the amicus curiae brief as a way to influence the court. The accepted importance of the briefs filed has largely been in an informational capacity. The briefs serve as data for the judges hearing a case. In this way, filers can act very similarly to Congress ional lobbyists. Legislators do not know details of every issue in a piece of legislation, neither do judges; therefore, information provided in the briefs can be helpful in decision making. The information brought forth via amicus briefs can also include an argument or strategy that was too risky for the actual litigant to use in court, but that could still be influential when noted by a judge. Krislov (1963, 703-


21 704) claims where the stakes are highest for groups, and where needs on the part of judges for information and for sharing responsibility through consultation are at their peak, access [for amicus briefs] has appropriately and almost inevitabl y, been [at] its greatest. Judges also look to amicus briefs to gauge their audience, the public. The number of briefs filed may signal the level of salience a particular issue has at that time (McGuire 1994) The significance of the brief is debatable and thus is one of the primary foci of this study. The Supreme Court has been so flooded with these documents that it is hard to believe they draw much attention in and of themsel ves. Recently, all types of groups have filed briefs. The trend seems to be upward; such filings are increasingly common (Caldiera and Wright 1990; Kearney and Merrill 2000) Figure 21. Supreme Court Cases Containing at Least One Amicus Brief, Data Source: Epstein, Lee. 1985. Conservatives in Court Knoxville, TN: University of Tennessee Press


22 Part of this increase in participation can certainly be attributed to peer pressure. Briefs seem to be a necessary part of group activity, an illustration of DiMaggio and Powells (1983) institutional isomorphism. This conceptualization of group behavior suggests that groups become more and more like each other as they try to increase their own influence. Quantitative assessment of brief importance The assessment of the importance of an amicus curiae brief to the Court in influencing judicial decisions is somewhat controversial. A number of scholars argue that briefs matter to judges, even if just to frame the conflicting arguments (Caldiera and Wright 1990; Collins 2007; Collins 2004; Craig 1993; Epstein 1992; Kearney and Merrill 2000; McGuire 1990; McGuire 1995, 56; McGuire 1994) Another set of findings argues that briefs are not significant to the judicial process (Songer and Sheehan 1993; Spriggs and Wahlbeck 1997) There are two specific areas in which these studies have focused: agenda setting and outcome. Amicus briefs and agenda setting Do amicus curiae briefs make a difference in determining whether a case will be h eard? Caldeira and Wright engaged in a study that compared 14 different organizational types to see who filed an amicus brief most often in 1982, and at what stage. Their study is one of the most comprehensive available, yet it covers only one year of data. Caldeira and Wright used a classification scheme to organize the filers in their study. Organizational types range from individual to government to citizen group to other. Churches and religious denominations in this analysis were placed in the o ther category. Other variables taken into account were the total number of amici, the


23 number of distinct organizations participating as amici, the number of cases for which briefs were filed and the total number of briefs filed. This analysis was frequency based. It found that much more filing occurred at the merit stage of the cases than at the certiorari stage. This result suggests that either briefs were not important as an agendasetting tool or that groups were not taking advantage of them as such. Within the organizational classifications, Caldiera and Wright found that individual state governments filed most frequently, followed by professional or business associations, and then citizen advocacy groups. The citizen groups filed 15.6% of all brief s filed at the merit stage, when the court has already agreed to hear a case. They also found that citizen groups have a high percentage (28.1%) of briefs filed in opposition, and are second only to the professional or business associations in this analys is. In terms of Caldiera and Wrights classifications, religious interest groups would fall into the citizen group category. Figure 22. Participation as an Amicus Curiae on the Merits of Supreme Court Cases, by Group Type, Data Source: Epstein, Lee. 1 985. Conservatives in Court Knoxville, TN: University of Tennessee Press


24 Case outcome and amicus briefs Amicus briefs have primarily been studied for their effect on case outcome. Historically, the influence of briefs on case outcomes has been evaluated in several ways. Earlier assessments used a win for the petitioner as a dependent variable, while the most recent study utilized a liberal conservative dichotomy. Among several more relevant studies, a variety of methods have also been used. This includes frequency distributions, odds ratio, matched pairs analysis, logit and probit. The findings themselves have been almost as diverse as the methodology, although the later studies are starting to show uniformity. Some of the most recent work has been consistent in producing significant outcomes, and earlier projects finding significance were part of the scholarly conversation regarding how much these briefs matter. The beginnings of amicus brief research were subsets of studies that focused primarily on other variables. Some of McGuires (1990; 1995) work did not focus on amicus curiae but includes briefs as independent variables in case outco mes. They were found to be significant. In his amicus specific research in 1994, he examined cases where lawyers sought organized interests and found that they filed briefs on interests behalf as an effective strategy in winning their case by using lawyer s efforts as the dependent variable, and a series of predictor variables dealing with whether the goals were policy or client driven. Other independent variables in the probit models included experience and expertise. The outcome was strongest in cases t hat were important to society as a whole, or the policy driven independent variables. (McGuire 1994) Kearney and Merrills work in 2000 also showed evidence that briefs do have some level of influence in case outcome. This study did primarily examine briefs. Case


25 selection encompassed a vast time span of approximately 50 years for which they tracked wins for the petitioner and the number of briefs filed on each side. Kearney and Merrill separately tracked four major litigants, to see if they were any different from the average filers. They asked whether briefs influence outcomes, whether disparities in briefs on each side had an impact, and whether it mattered if the briefs wer e high in quality. Their findings were that first, respondents seem to have some benefit from filing briefs, but petitioners do not. Second, that a disparity of only one or two briefs does seem to matter, but large disparities do not. Finally, lawyers w ith more experience who file briefs do seem to have more success. The research is also interesting because Kearney and Merrill match their findings with the models of decision making that judicial scholars are so familiar with. They argue that their final conclusions are most supportive of the legal model of decisionmaking because of the higher impact when respondents file as well as the appreciation by the judges of high quality briefs. Because their research is frequency based it does not use control v ariables, aside from removing the Solicitor General briefs from analysis.1 Collins (2007, 56) research is both recent and applicable, and he clearly states that it supports the primary motivation for brief filing by interest groups as influencing case outcome. His studies directly assess brief influence on case outcome Collins original contribution is his set of control factors. Variables in his first study include: four independent variables describing the number of briefs and of participants on each side of the case, two controlling for the Solicitor General, others controlling for justice ideology, litigant resources, lower court conflict, and certiorari. He utilized a logit model 1 Most research has shown that amicus briefs filed by the Solicitor General are effective, and much more so than other filers.


26 to test for petitioner win and found most variables significant, with the exception of the two participant variables; the number of gr oups on each side did not seem to matter. However, the amicus brief variables had the lowest marginal impact when compared to the other significant variables (with the exception of the certiorari variable). In his discussion, Collins (2004) refers to other subsidiary reasons regarding why groups may use amicus briefs, aside from influencing case outcome. He includes such things as we have previously stated: Group maintenance and membership building, coalition building, and purposive benefits such as credit claiming. In addition to his 2004 article, Collins (2007) has since published another article that is perhaps the most closely related methodologically to t he current study. Instead of focusing on petitioner wins as the dependent variable, the estimation is based on whether the decision is liberal or conservative. There are additional independent variables and slight differences in his later article; the model is much more complicated. He does not include the certiorari variable, but does use the lower court variable. There are two resource variables, which give values for the level of resources on both the conservative and liberal sides, an ideology value based on MartinQuinn ideology scores, and four interaction terms. The first two of these interactions are case salience with the conservative and liberal amicus variables; the third and fourth control for group proliferation and are amicus proportion int eracted with the same amicus variables. Finally there are dummy variables for terms. The findings in this article support Collins previous findings, that briefs matter to case outcome and have influence in shaping the ideological direction of the cases. None of the interaction terms were at all significant, however, the base term for case salience was significant. The study also included


27 regressions to account for endogeneity, and for whether or not case outcome was influenced only because groups that fil ed briefs did so because they thought winning was likely. This did not seem to be the case. Collins recent book (2008) is perhaps the most thorough examination to date of amicus brief efficacy. Conclusions support his earlier articles. His study utilizes a broad case spectrum and analyzes efficacy both on a case level and to ind ividual justices, by way of opinion writing. He suggests that looking at individual justices votes and their variability is the appropriate way to examine the theoretical background of why groups participate via amicus curiae briefs. Collins adds to the literature by providing evidence of group strategy and efficacy simultaneously. His empirical study operates under the premise that the primary goal of amicus participation is to persuade the justices to endorse policies congruent with groups varying p references (Collins 2008, 35) This analysis begins with a look at the various issue areas u nder which amicus briefs are filed. Civil rights cases, under which religion clause cases fall are among the most frequently filed issue areas. A couple of other noteworthy trends: both ends of the ideological spectrum file fairly equally, and groups do n ot seem to file more in cases they are more likely to win. Collins also uses a typology to organize interest groups that file, finding trade associations and state governments are most frequent to file. Still, public advocacy and public interest law firm s (in which most groups in this project are categorized) are not far behind. Last in this section, Collins looks at the type of information provided in amicus briefs, finding that most often, briefs offer legal arguments to the justices.


28 The next several analyses use probit modeling to analyze the impact of amicus briefs. The dependent variable in the first model is each justices individual vote. Independent variables are similar to those Collins used in his previous projects on this topic, Solicitor Gen eral, number of briefs, resources on each side, lower court direction and ideology. He finds most of these variables significant, and argues that the legal model for decisionmaking is upheld in his findings. Justices were less persuaded by their ideolog y than they were by some of the arguments made in the briefs. Briefs seemed to be most significant in cases where there was asymmetrical participation. The second model is a heteroskedastic model using the same variables, and adding variables on total brie fs, salience, statutory interpretation, lower court conflict and tenure. This model addressed the variability in a justices decision and Collins finds that amicus briefs lead to more varying behavior by each justice by increasing the ambiguity of a case. The final empirical model in the analysis looks at amicus briefs and opinion writing. This multinomial probit model has categorical outcomes of joining the majority opinion (baseline), regular or special concurring opinion or dissenting opinion. The fin dings here show that amicus briefs have contributed to the increase in opinion writing by justices. They provide some of the research for justices that would be required in authoring such opinions and thus facilitate multiple opinions in the same decison. Collins book streamlines much of the previous scholarship in this area, addressing a literature that has been divided because of a lack of work in this large a scale. The major perspectives in judicial literature are restructured in a way that makes sen se for this particular niche. For example, the attitudinal, strategic and legal models of judicial decision making are tested on a broad scale with particular mind to amicus


29 curiae briefs. The implications of Collins work here are that the legal model may be making a resurgence, the voices of interests are being heard in the Court and the venues of such participation remain fairly open. Although there is scholarship that supports both effectiveness and ineffectiveness of amicus briefs on case outcome, w ork from the past decade does support attributing some amount of success to briefs. Collins work is clearly the most rigorous in this area. His outcome may be a reflection of this. Alternatively, different types of groups with different goals may be th e reason behind different outcomes in these studies. Thanks largely to Collins work, the recent mainstream literature on amicus curiae brief effectiveness is more supportive of efficacy. However, other scholars take issue with these conclusions and find little to no significance of amicus briefs. Songer and Sheehan run an analysis among matchpaired cases that involve one case that has at least one amicus brief filed and another case that has no briefs filed and that display no significant difference in the outcome. Their study was reactionary to work that had been done in support of the effectiveness of amicus curiae briefs. They were skeptical of some of the theoretical implications, such as the contrast with justices ideological decisionmaking model. If justices decided cases based on their predispositions, then it would not make sense for amicus briefs to have an impact. They also argued that the empirical studies finding for effectiveness of the briefs were too narrow in scope to be used in generalizations (McGuire 1990; Songer and Sheehan 1993; Wolpert 1991) Songer and Sheehans solution was to examine the effectiveness of such briefs by comparing cases that had the support of one or more amicus briefs to those that had


30 no support. Their time span was broader than Caldeira and Wrights, and encompassed odd numbered terms from 19671987. They removed from consideration cases that had amicus briefs filed by the government or private individuals, cases in which briefs were filed on both sides and cases where there were no briefs on either side. They were left with a selection of cases where briefs were only filed on one side or the other, and were filed by businesses, private associations or interest groups, N=132 pairs of cases. The authors do point out that there are some selection biases, such as that those filing may have chosen which cases to participate in based on their likelihood to win, and also that the case facts for each pair are not perfectly aligned. When the pairs are examined, Songer and Sheehan found only a 1.2% difference in the percent of cases won that had one or more briefs written on their behalf. In addition to this, Songer and Sheehan compared appellants and respondents regarding which side was supported by the brief, and here also found only a trivial difference (in one case the difference actually favored the side of an appellant who had no briefs filed on his behalf). Other models look at different types of litigants, different issues and different time periods with similar results. The authors conclude that there is no evidence that amicus curiae briefs actually have an influence on the outcome of the case; they point to the ideological preferences of the judges as a possible explanation for why briefs did not have significant influence. Aside from the limitations that Songer and Sheehan put forth regarding case selection and case facts, their study brings to mind some interesting additions that this one will address. Accounting for the actual number of briefs filed, and creating a variable for collaboration will both be done here. Perhaps ten briefs filed are more


31 effective than one, or, groups working together on one brief might make it more effective. Case selection is expanded by not excluding cases with briefs filed on both sides so that the most salient cases are included in the analysis. Another study that also addressed brief influence on case outcome was Spriggs and Wahlbecks 1997 project. Here, the authors used a different dependent variable and chose to focus on the role of information on outcome. Amicus curiae briefs have been said to provide information to justices; Spriggs and Wahlbeck tested this hypothesis by looking at whether amici provide arguments not already presented in briefs filed by each party and whether or not the courts majority opinions adopt the arguments that are exclusively made within amicus briefs The analysis spanned one term, 1992, and used the United States Supreme Court Judicial Dat a Base to examine opinions written, and used Lexis Nexis to examine briefs. Amicus briefs were coded in a way that stated whether they presented only new arguments, whether they only reiterated arguments made by a party to the case, or whether they both added new arguments and reiterated arguments. Briefs were coded to state whether the majority opinion accepted, rejected, or did not use each argument. The authors also performed an intercoder reliability test with positive results. In looking at what kind of information amicus briefs provide, the authors provided a frequency distribution. It shows that although it is quite common for amici to present new information, it is even more common for them to reiterate information already provided by a litigant. A similar frequency distribution regarding whether or not opinions adopt this information shows that opinion writers more frequently reject or do not use the amicis argument, than they do adopt it, even when controlling for the type(s) of


32 information in a n amicus brief. Spriggs and Wahlbeck also engaged in a multivariate analysis that controlled for the Courts ideological predispositions and amici party status (or resources). It also controlled for whether the brief was written by the Solicitor General (the ultimate repeat player), whether the brief supported the petitioner and the number of cosigners on the brief. The dependent variable was a dichotomous representation of whether or not the Court accepted an argument from the brief. The probit analysi s suggests that an amicus curiae brief that reiterates the arguments of a litigant is more likely to be cited in an opinion than a brief that proposes a new argument. Spriggs and Wahlbeck concluded that their empirical evidence did not support the conventional wisdom that a main function of the amicus curiae brief is to provide new information to the court. Instead, it is more likely that amici actually reiterate arguments already made by one of the parties, and are more likely to be cited in an opinion if they reiterate old, rather than add new, arguments. These findings again question the relevance of amicus curiae briefs. If one of the chief objectives of amicus curiae briefs is indeed to provide new information and data is not showing this occurring, then there is evidence that these briefs are not having the efficacy that groups desire. This literature highlights the inconsistencies of amicus brief literature with regards to case outcome, or efficacy. Another aspect of brief usefulness is in regar ds to collaboration. Group collaboration in amicus briefs Networking, as initially addressed by Heclo, is another vein of interest group research that relates to this current study. Not only have groups approached the court


33 individually, they work together both in bringing cases into the court and in filing briefs. Their efforts have become increasingly coordinated. Hula (2005) studied the alliances among organizations opposed to human cloning and embryonic stem cell research. He defined these coalition s as purposive groups of organizations united behind a symbiotic set of legislative or regulatory goals (2005, 232) and explains that they are necessary due to the increased complexity of governmental processes. Hojnacki (1997) empirically assessed the reasons groups are willing to work in coalition. She looked at a series of costs and benefits that organizations weigh when determining if working in coalition will be more successful than working alone. She found that if a group interest is very n arrow and allies do not have much to contribute to the campaign, the costs of joining an alliance would not be outweighed by the benefits. Alternatively, when there is strong organized opposition to group interests and the interests are more broadly defin ed the benefits will outweigh the costs and coalitions will form. These two studies did not address the court specifically, but the same principles can be seen in this branch. Theoretical underpinnings of both Hula and Hojnackis work do not mandate poli cy benefits where these coalitions exist. If policy benefits are not there, then groups have shared the cost of filing the brief while bolstering membership and providing purposive benefits, making it worth the cost of coalition. If policy goals are met, that is obviously an even greater payoff for groups. Another recent study examines coalitions on amicus briefs. Whitford (2003) looks at coalitions formed in environmental litigation. He suggests that coalitions formed are relatively low cost for groups, whereas utilizing a judicial strategy is high cost. Coalitions, therefore, are especially important in giving more power to minority groups


34 that choose to work together. Because of thi s, coalitions enhance a groups ability to participate in the judiciary. Whitford also argues that the networking aspects, including relationships built between various interest groups, may be as important as the policy goals they are seeking. This would suggest another purposive benefit for group members. Whitford does not assess policy effectiveness, and based on his suggestion that the coalition itself has importance, it is not necessary for briefs to influence case outcome for them to be important to groups and their members. Qualitative Assessment of Brief Importance There has been a marked difference in the conservative versus liberal employ of the court, especially in scholarly work. This is primarily because traditionally leftist groups have been the minority (and would therefore not have access at the executive or legislative level) so have sought effectiveness in the courts; courts have made tremendously important policy decisions extending certain rights to citizens such as African Americans and women. Strolovitch (2007) mentions the social movements of the 1950s, 60s and 70s as evidence to contradict Schattschneiders pessimism regarding the usefulness of groups. These groups have been thought to have less access to Congress or the Presidency which are majoritarian institutions, and therefore in order to pursue goals, they have resorted to the court. P rogressive groups are by definition those seeking social change, whereas (again, traditionally) conservative actors have sought to maintain a certain status quo. However, as previously mentioned, several scholars do see an upward trend of conservative court action that somewhat counters this conventional wisdom. Epstein (1985) examines conservative groups and sees that they mature over time and become successful advocates to the courts. Brown and Hackett focus on conservative Christian groups, and so are


35 particularly relevant to this study. Minority reli gious groups such as the Amish or Jehovahs Witnesses who were among the plaintiffs in critical churchstate cases in the 1960s and 1970s --are no longer the prevalent participants. Steven Browns (2002) study of the New Christian Right in the courts examined the theoretical underpinnings of why conservative Christians utilized the court and it examined some of the more influential law firms involved in conservative Christian activism. He discusses strategies such as funding litigation and filing amicus curiae briefs, and even extracourtroom strategies such as public education, prelitigation and nonlitigation. In his discussion of the use of amicus curiae briefs, Brown mentions the controversy surrounding the actual impact of such briefs, especially now that they are so numerous. He also describes amicus briefs as giving ownership to a group involved in a case, thus the briefs can be used in garnering more overall public support. The impact of the brief is not only within the court case, but also in how it actually reflects back on the group as a whole. Browns study also provides a limited examination of the New Christian Right influence in the lower courts, showing that involvement has not been seen only at the federal level. Browns study looks at involvement between 19802000 and examines one particular set of litigants, Christian Right activists. There is no empirical comparison of activity between different religious groups that may oppose each other in court, nor is there any comprehensive em pirical examination of participation either in terms of actual litigation or in filing amicus briefs. The success of Christian Right groups in court (or any other group for that matter) cannot be examined without also considering opposition


36 that these groups may face. The important contributions of this book are theoretical, and I build upon these findings by using empirical methods. Hackers (2005) study also focuses on a limited number of groups within the Christian Right activist frame. Like Browns work, Hackers is a more theoretically structured argument as opposed to an empirical analysis. Hacker examines the behavior of these interest groups as an outcropping of their group culture, in other words, how the groups goals help to define its strategy. He uses three groups as case studies and includes interviews with group leaders as well as access to their documents. Each of the three groups has the same primary goal of policy influence, but their cultures and ideologies vary. After individually examining the three groups in his analysis, Hacker spends time comparing them, concluding that religious ideology explains the differences in litigation practices and emphases. The limitations of Hackers study are similar to Browns. The groups studied are even narrower in scope and there is still no comparison of activity between groups and their opponents. The time span examined is based on the individual cases. There is no real discussion of the influence or effectiveness of the activity. Instead, the focus is on why particular strategies are used in regards to characteristics of the individual groups. Taken together, these two substantial studies provide some theoretical background to look empirically at religious interest groups and their activity in the court. Clearly this activism is noticeable and while these analyses discuss strategy, they fail to provide any measure of effectiveness. Instead, the authors assume that these groups are effective policy wise, perhaps taking note of recent judicial literature conclusions. According to Hacker and Browns discussion of strategy and activism, this study should


37 find efficacious results. Browns study does allow for briefs to make an impact on groups as a whole, thus a purposive benefit can be counted. Conclusions Although ami cus briefs have been covered in the literature in a variety of ways, there is disparity between findings. The recent trend, by scholars such as Hacker and Collins, supports brief efficacy. However, other analyses have found different results and suggest that briefs do not have the kind of influence filers might hope for. There are several possibilities as to why scholars have had differing results. Collins work is by far the most rigorous, and it is also the most current. The use of justicelevel data and such a wide range of controls may be a better way to look at amicus curiae briefs. Because his work is so recent, it is also possible that those who would continue to disagree about brief influence have not yet had time to combat his findings. It i s also possible that different groups, different briefs, different types of cases mean different amicus brief influence. Groups may not always be seeking a win based on case outcome when they file briefs, and therefore the definition of success that has been used in most of these studies may not even be applicable to them. Divergent Interest Group Goals Tangible Versus Symbolic Benefits Interest Group Politics on a Broader Scale Religious groups can be understood as interest groups when they make claims on public policy. Hence, we can use interest group theory to understand their creation, strategies, successes and failures. If Collins findings hold true for every setting, briefs influence outcome and the investment must be worth it. However, if others who have found contradictory results hold credence, the puzzle of amicus group participation rests largely on apparently nonrational behavior: if groups are not influencing the outcome of


38 the court, there must be another reason for their participation. T his examination of organizational incentives through interest group theory is a more suitable approach because it allows for other explanations of group success, though this study does not test specifically for conclusive motivation. Early versions of gr oup theory focused on the influence applied through the legislature; but as groups have evolved new strategies so has the scholarship become more reflective of the current strategy. Policy influence is seen in many avenues in modern politics. The means o f group formation and maintenance also have an impact on what kinds of policy influence these groups seek. But group theory began with classical scholars who held normative discussions about interest groups and how they affected democracy. Early Interest G roup Scholars and Pluralism Interest group pluralism describes the increasing population of different interests in the public sphere. One generalization about such groups that can be made is that over time they have increased greatly in number. Early scholars of pluralism differed on whether this growth was negative or positive for democracy. Both Bentley (1908) and Truman (1951) promoted interest groups as representative of the needs of the people. They saw the goal of interest groups as policy influence; this narrow goal structure aligns closely with the judicial scholarship of rational behavior discussed in the preceding section. Bentley discusses groups and their relation to one another, setting the stage for future discussions of coalition building efforts by groups, both in and out of court. Specifically, No group has meaning except in its relation to other groups (Bentley 1908, 217) Groups have certain means for power, and Bentley includes three components: the number of men in a group, their intensity, and their tech nique. David


39 Trumans research fits more into the area of avenue shopping. He suggests that the more doors a group knocks on, the more powerful the group, but the fewer resources a group has, the more strategic they must be in choosing which avenue to seek. Pluralist scholars suggested that in general, people joined groups in support of the groups goals, and they stayed in a group (and attracted new members) by maintaining political goals around their particular interest. The criticism of pluralist theory was that it focused too much on the political and did not account for incentives (Moe 1981) Chief anti pluralists include E.E. Schattsneider (1961) C. Wright Mills (1956) and Ted Lowi (1979) Schattschneider saw interest groups as private interests influencing politics, and also asserted that those interest groups that were able to be powerful were those wit h the most resources. Thus not all private interests were represented, but the wealthy ones were. Religious interest groups support the pluralist scholar normative endeavor that groups are representative of the people, especially many members of the Chr istian Right. Many of the grassroots supporters of this movement are not materially wealthy. The resources they bring to their groups may be small monetary contributions, but they are passionate about the change they seek and thus have been willing to par ticipate in letter writing, or phoneflood campaigns. Religious interests, though always present throughout our nations history, swelled recently in response to what they saw as a social and political problem in the 60s and 70s, precisely the kind of organizational dynamics that support democracy and that Truman and Bentley would expect (Hertzke 1988)


40 Iron Triangles Versus Issue Networks As Truman, Bentley and Schattschneider were discussing normative implications of group formation, others studied group activity with a focus on policy influence within the legislature. Mills and Lowi used an illustration of the iron triangle to describe interest group influence in policymaking. Each triangle was its own mini government that linked sympathizers in the bureaucracy and Congressional committees wi th interest groups. The relationships between these three points strengthened over time thus creating a monopoly on each particular issue. Policy outcome based on the particular issue and triangle members (points) would be very predictable. These triangl es were closed, suggesting that newcomers to the political process could not find their way in. Groups provided electoral, political and monetary support to these politicians in exchange for special favors, low regulation, or friendly legislation. Unfor tunately, the iron triangle system leaves a lot to explain with regard to group activity. If access were so closed, why would new groups form? How can we explain participation in other avenues of government if existing triangles were monopolizing all pol icy decisions? Group participation in the federal courts also seems to be unexplained by the iron triangle system because still the focus lies on a policy changing outcome. Supreme Court justices do not have to worry about reelection, or funding, therefo re groups cannot provide the same support to the courts as they do in legislative relationships. These questions and more were addressed in Heclos conception of issue networks as an alternative way of looking at relationships between interests and the governmental process. Heclos (1978) alternative way of looking at groups also fits well within d iscussions of group coalitions. Networks have a primary purpose of providing


41 information to policy makers. Because the purposes are understanding and information, groups are not always seeking policy change when they provide such information. The network s are much more open and susceptible to change than iron triangles would be. In networks, authority would change, making policy outcome less predictable. New coalitions would arise from outsiders, surprising the insiders. The issue network system is alt ogether much more fluid and amorphous than the rigid definition of iron triangles allows for (Gais, Peterson, and Walker 1984) The system is also highly complex thus allowing for it to fit more group situations that the iro n triangle (Jordan 1981) Jordan (1981) draws helpful compari sons between iron triangles and issue networks. In triangles, alignments are stable whereas in issue networks they are not. Iron triangles allow for segmented power but power can be best described as fragmented within issue networks. Another crucial diff erence is that the number of participants is very limited in an iron triangle, but the number of participants is unlimited in an issue network. Other distinctions are that access is closed in an iron triangle but open in a network; there is a final decision maker in an iron triangle leading to most issues being resolved but there is not a final decision point in a network, leading to lots of unresolved issues. Proponents of issue network theory allow iron triangles their day, that is they accept iron triangles as a good description of political power in the 1940s and 50s. Changes in the political landscape since then, including pluralism and a much more open structure for groups, are what have changed the methods of influence from iron triangles. As evidence to support issue network theory, Gais, Peterson and Walker


42 (1984) discuss pluralism and the Leftist and Rightist groups that arose from the 60s 80s, such as Civil Rights and Environmentalist groups versus M oralistic Religious Groups (i.e. the Christian Right). Issue networks also allow for policy influence outside of the legislature, but iron triangles do not. We know that policy change occurs within the judicial branch as well as within the legislature, w hich is another crucial component of issue network theory that makes it more applicable to todays political system. Benefits sought by groups in the political process can be thought of in two ways, tangible and symbolic. A tangible benefit describes an outcome that specifically affects a group monetarily or policy wise. As the word tangible suggests, this type of benefit is something that can be literally observed. It is equivalent to the traditional expectation of judicial scholars with regards to gr oup activity: that the central motivation behind filing of amicus briefs in the courts is outcome and policy based. A symbolic benefit is much less specific. A symbolic benefit could describe group maintenance issues or moral victories. For example, seei ng to it that school prayer does or does not take place on public campuses, or that the existence of a religious display on government property does not result in a monetary benefit for a group on either side. Groups have more on their minds than specific policy goals in many cases. In issue network theory, symbolic benefits are promoted as being a primary focus for groups. This type of benefit structure is much more fitting to explain group activity in the courts. In an iron triangle relationship, interest groups would not have motivation to participate judicially because they have little to no support they can lend to justices in exchange for outcome. Instead, issue network theory allows for group participation to be motivated by nontangible benefits


43 Symbolic Benefits and Group Maintenance As an alternative to pluralism, Mancur Olson (1965) argued that groups arose not because of political goals or interests, but were only successful in forming when leaders provided incentives to participants. Individuals made rational decisions on their involvement based solely on the economic benefits they would receive by joining a group; these benefits had to outweigh those they would receive as a free rider. Furthermore, these benefits would have to continue to be provided in order to retain members in the long term. In looking at research from other disciplines, benefits can be understood even more precisely, especially in reference to groups that have religious purpose. Clark and Wilson (1961) provided an incentive structure for organizations based on psychology and collective action that can be incorporated into the symbolic benefits model to make the theory more co mplete and useful. They categorize organizations and suggest that the typology provides information about what types of benefits may be necessary to generate and retain membership. The three types of organizations are utilitarian, solidary and purposive. The utilitarian organization includes business firms and political parties. These are some of the oldest interests active in the political system and would have had access in iron triangles. The general incentives for joiners here are material incentiv es; this would follow well with Olsons symbolic benefit theory. The second and third types of organizations blend together, especially with respect to religious groups that may fit either or both categories. The solidary categorization includes service organizations, colleges, and some reform groups. This type of group will be looking for publicity and organizational prestige via the public good.


44 In some ways religious groups can be considered reform groups, and they certainly have sought similar goal s as Clark and Wilson suggest solidary groups would (publicity for example). The purposive group is perhaps a better fit for religion though, as this type is almost solely based on ideological tenets. These groups will have broad goals (think separation of church and state or abortion prohibition). Leaders may point members to moral victories versus actual accomplishments. Clark and Wilsons wording sounds very familiar for both definitions when thinking of certain groups that are active in religion c lause cases. If a group were utilitarian or materialistic, it seems its only important goal would be policy success, thus supporting scholars who assert that amicus curiae briefs must have influence on case outcomes to continue motivating groups to exist. However, there is room both in solidary and purposive understandings for symbolic effort that may appease members, but not necessarily result in an immediate policy change. Similar to Clark and Wilsons understanding is Salisburys (1969) structure of material, solidary and expressive benefit. Salisbury asserts that not only must groups provide these benefits to members to entice membership, but there must be a continual exchange in order for the group to survive. In describing benefit itself he says: We do not attempt to assess real or true benefits. Rather we assume that people do or pursue those experiences and things which they value, for whatever reasons, and in this sense only may be regarded as rational. Expressive benefits closely align with Clark and Wilsons conception of purposive benefit. The difference between purposive and expressive benefit is the recipient. When discussing broad concepts such as civil rights, Salisbury says that the purposive benefit of success can be felt by freeriders; however, the expressive benefit of satisfaction felt by seeking civil rights would only be felt by the mem bership. In this


45 way, the conceptualization of expressive benefit is more fitting in relation to group maintenance. Drawing on these typologies, Moe suggests a revised version of Olsons symbolic benefits that draws in pluralistic aspects. He suggests th at a perception of efficacy may well be a purposive benefit that also supports a pluralistic or political ideal as the basis for membership. Solidary and expressive benefits are not material, yet they are benefits that may entice membership (Moe 1981) A sense of satisfaction or giving back can also be considered a benefit. Once we move beyond the idealized world of perfect information and economic self interest, we are no longer led to Olsons nonpolitical perspective. We are led, rather, to a broader view that leaves a good deal of room for political action and that outlines the theoretical roles of perceptions and values in explaining why political action occurs (Moe 1 981, 537) Aside from explaining group formation, scholars have assessed group maintenance and how groups do or do not survive through time. Walker (1981) focuses on this aspect in a survey project and asserts that patronage is an essential feature to kee ping citizen groups, especially, afloat. Patron donors can provide startup funds, and in 89% of the surveyed groups, continue to contribute once the group is established. Aside from keeping membership happy and paying dues, leadership must concern itself with keeping these patrons invested. Moens discussion of group institutionalization by way of the Christian Right (1994) includes a mention of the private donors these groups relied heavily on even after forming genuine membership organizations. This proj ect does not test directly for alternate explanation of participation in the Court. Instead, in the absence of efficacy I theorize about possible grounds for


46 otherwise irrational behavior. The subset of groups involved in this analysis lends particularly well to an organizational maintenance justification Moen also discusses the importance of issue framing as it relates to group maintenance for the Christian Right. When groups attempt to gain relevance in the larger political spectrum, they often need to step outside of the language that most directly appeals to their membership. Christian Right organizations sought a balance between continuing to appeal grassroots membership and influencing policy during their institutionalization process. A symbolic benefit is a broad term that describes virtually any type of nonmaterial reward gained by an interest group. In terms of the Establishment and Free Exercise Clauses, it is also easy to see how symbolic benefits may encourage involvement. While Establish ment Clause policy changes may lead to more funding for religious schooling, or, for a separationist petitioner, may bring that same funding back to public secular schools only thus resulting in a tangible or material benefit, a petitioner seeking violation of the Free Exercise Clause hopes to receive the symbolic benefit of free expression wherever he has been denied. Conclusions Religious group activity can be explained much more thoroughly by using the issue network model. Because most of these groups were new in the early 1980s, they certainly were not insiders that would have benefited from longtime arrangements with bureaucracy and congressional committees. Instead, they found the system somewhat open to their influence, at the very least in agenda setting; their activism in many avenues cannot be explained by an iron triangle arrangement. Furthermore, group activity in the Courts is not well explained by iron triangle theory because groups do not have the same support to offer the Courts as they do the legislature. The benefit


47 structure of tangible versus symbolic benefits also speaks to the use of umbrella groups in the courts. Groups can lower their own costs by coming together around a single case or cause. They can generate large volumes of br iefs in support of each other that say the same thing. Potential policy rewards in the courts are not always enough for groups, they must als o be concerned with maintaining membership, which leads to a different goal structure altogether than we would expect based on an iron triangle relationship. This interest group theory suggests several overarching hypotheses. The first suggests the meaning of significance in decisionmaking outcome versus briefs as participation. When a tangible benefit is the goal o f participation, efficacy becomes more important than for a symbolic benefit. H1: Group participation influences case outcome more so in tangible cases than it does in symbolic cases The second revolves around the importance of coalition. Groups that work to achieve specific tangible goals may not have the same luxury of compromise that symbolic achievement allows. Groups participating as amici curiae in tangible benefit cases may not seek collaboration with other groups, as they are less willing to compromise and more willing to expend resources to achieve a higher goal. Groups participating as amici curiae in symbolic benefit cases may have other motivating factors behind their behavior aside from efficacy. Therefore, they may evidence higher levels of collaboration, as they are more willing to compromise and seek to conserve resources. H 2 : Group participation in tangible cases has relatively lower levels of collaboration than does participation in symbolic cases. Religious groups as part of the interes t group universe have individual characteristics that make them more or less exemplify the trend toward symbolic or


48 tangible benefits Their larger political goals and participation patterns help to define more specific expectations between different traditions. Religious traditions pursuing tangible benefits should be achieving efficacious influence in the courts and participation should be have an influence on case outcome. Religious traditions pursuing symbolic benefits should not necessarily be concerned with achieving efficacious influence. Success for these groups is not dependent on a win or loss in court. There must be other reasons for participation and organizational maintenance is a likely alternative based particularly on the understanding of i nstitutionalization of the Christian Right. Conclusions Group efficacy as perceived by judicial scholarship and group goal structures as explained by interest group theory highlight discrepancies in their vast literature areas. What we understood about gr oup policy influence in the 40s and 50s does not allow or explain groups who participate in nontangible political areas, yet it seems to be more closely drawn from in efficacy analysis. The next chapter delves into r eligious groups specifically as a subse t of the larger interest group arena. These groups have high levels of participation in each political branch, including the judiciary. The goals of their movement can be understood as two fold, tangible and symbolic. Success in terms of these goals therefore may or may not lead to efficacy as it is currently understood within judicial politics. This project endeavors to examine participation more thoroughly to see whether or not efficacy is an appropriate measure for group goals in the Court, and whet her there are differences based on group characteristics and political goals.


49 CHAPTER 3 GROUP EFFICACY IN RELIGIOUS CLAUSE DOCTRINE Specifying the Issue Area To study the puzzle of group participation and success in the courts, I examine a subset of United States Supreme Court cases. I use First Amendment Religion Clause cases in the Supreme Court. This area highlights the activity of religious groups in the courts more comprehensively than any other issue area. No matter what the religious tradition, if it has survived in the United States, the tradition has had some run in with the religion clauses. This may be in day to day operations, politics, or simply in their determining how to file taxes. The outcomes of these cases affect all religious groups indiscriminately. Much of the scholarly work that has been done on religion in the court focuses on the religious preferences of the individual justices. According to Sorauf (1976) and more recently Bornstein and Miller (2008), there are systematic differences in judges decisionmaking due to their religion. Because Soraufs analysis occurred prior to the Evangelical and Mainline Protestant parting of ways, its not as thorough as Bornstein and Millers. Both studies find Jewish justices ruling consistently more liberal than Protestant counterparts. Bornstein and Miller also find that Catholic justices are more conservative on some issues and liberal on others according to the issues on which the Church specifically has a stance. Evangelical justices are overall more conservative, a finding that supports Songer and Tabrizis study at the State Supreme Court Level (1999). Mainline Protestant justices are harder to characterize as a group because of the diversity among denominations included. Religious preferences of the justices reflect in their overall ideology, which is included in this study. Though scholarship has


50 included the religious background of individual justices, no one has examined persuasiveness of briefs in this particular case area. Th e Religion Clauses are also an excellent arena in which to examine the discrepancy between symbolic and tangible benefit. Many cases that fit into this area have a monetary impact on the groups involved, such as funding for religious schools. There are also cases in which this kind of tangible benefit does not exist, such as the constitutionality of prayer in school. Religious interest groups, perhaps more than other types of groups, must maintain a balance between financial gain and the morality goals. This chapter begins with a detailed historical analysis of religion and politics in the United States, including an overview of how separation of church and state has been handled historically, and backgrounds of several of the most visible religious traditions. Then, details of the empirical sample and hypotheses follow. Religious Group Typology and the Religious Clauses Religion in Politics Religious group activism is not a new phenomenon. Worldwide political upheaval throughout the ages has been defin ed by religious conflict. In the United States, religion is addressed in the Constitution by way of the religion clauses of the First Amendment. The religion clauses and their meaning have changed dramatically over time. The interpretation by the courts has been a primary catalyst to such changes. The Establishment and Free Exercise Clauses, alongside Jeffersons separation metaphor have helped to define the place of religion in public America and the concept of separation of church and state is discuss ed as a Constitutional principle or as a matter of fact in everyday conversation. The development of the religion


51 clauses of the First Amendment was not so simple, nor has its understanding been. Even today, scholars argue over the founders intent for b oth the Establishment and Free Exercise Clauses. One evaluation of intent is that America was founded as a Christian nation, and that though not specifically mentioned in the Constitution, Protestantism was thought of as a guiding religion for the success of the country. The opposing viewpoint is the classical liberal perspective that there should be a strict separation between church and state in order for religious liberty to prosper The courts, and here specifically the Supreme Court, has worked to im plement an interpretation of these clauses for use in American political life. Bartrum (2009) neatly summarizes this case history, and concludes that its much easier to simplify the debate than it is to truly assess it historically. Two cl auses in the First Amendment are referred to collectively as the religion clauses stating: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The first component is entitled the Establishment C lause and it has been used specifically to prevent legislation from being passed regarding particular religions, to strike down school prayer as unconstitutional, in issues of funding religious schools versus secular schools and more. The second component is entitled the Free Exercise Clause and it has been used to protect religious believers from interference from the government in issues such as proselytizing and even animal sacrifice. Many times these two clauses are used in conjunction with one another, or are even used at odds with one another. They frequently interact when citizens or interest groups go to court when they perceive their rights have been infringed upon.


52 Since the courts have made decisions based on these clauses, two bodies have emerged as opposing viewpoints of how they are to be interpreted. Accomodationists see the Constitution as intentionally compliant of religion. They have also been referred to as religionists. Opposing accomodationists stand separationists. These indiv iduals see the purpose of the religion clauses as creating a wall of separation between government and religion, and also tend to view the two clauses as in conflict with one another. They cite Jeffersons separation metaphor as evidence that the founders intended for religion to be completely separate from government. The creation of the ideas within the clauses began with religious dissenters in 18th century America, who were religious individuals of independent religious bodies. They feared government persecution and therefore sought protection based on the need for religious liberty. Many of the framers who were prominent in creating the religion clauses identified with these dissenters. Thomas Jefferson penned the wall of separation phrase into a letter to the Baptist Association of Danbury Connecticut in describing his personal interpretation of the religion clauses as the founders wrote them. He could not have foreseen how this phrase would be utilized in the future. Jeffersons part in defining the religion clauses is interesting, as he was not one of the foremost players in composing this section of the Bill of Rights. Jefferson did not argue that separation was the meaning of the religion clauses; instead, he argued that it was an underlying principle in the Constitution. Also, his description of separation was a barrier between the federal government and the church, but he still left religious establishment as a power of state governments, consistent with his own interpretation of federalis m. Jefferson was not the first to use


53 separation metaphors. Richard Hooker, Roger Williams, James Burgh, all used separation metaphors prior to Jefferson. Religious Political Groups This early history addresses the premises of more current religiopolit ical debate. It also points to why some religious groups shied away from political participation for many years. Certain groups have a longer history of political activism, like Catholic and Jewish Congregations. Secular groups have fought religious bat tles beside them and against them, like the American Civil Liberties Union (ACLU). Christian conservatives have more recently joined the political scene as they assert a national religious identity and seek to preserve or bring back this Christian Nation. Catholic churches and organizations have maintained a national office in Washington since the early 1900s first as the title and then as the United States Catholic Conference/National Conference of Catholic Bishops They have maintained a stable presence and have participated across the spectrum of political branches. Currently, 6 Supreme Court Justices are Catholic. Historically, Catholic voters were thought to be aligned more with the Democratic Party. However, current Catholic values have not al igned too deeply with either major political party. Several issues continue to divide the Church and its leaders. Those Catholics who strongly oppose abortion tend to favor the Republican Party; others who prioritize social justice issues (such as welfar e and charity) may lean more to the Democratic Party. This breakdown has also led to interesting group alignments and strange bedfellows on a caseby case basis. The Catholic school system is very broad and thus has a great interest in protecting whatever state funding it receive, thus this is another area in which Catholic groups align with a more conservative position. Within the judicial system, this is the


54 area in which we might expect to see the most participation because the interests of those scho ols Is best served by the accommodation position. Catholic political organizations stand for these differing viewpoints. The National Council of Catholic Bishops has been around since after World War I and represents the official political positions of th e Catholic Church in the US Aside from the official organizations, which are supported by the Catholic Church itself, there are smaller groups whose activity is not quite as uniform. The Catholic Church has faced its own set of struggles, not entirely unique to this religion but perhaps felt more strongly than in others. The church has been declining in numbers of clergymen, and large numbers of members may identify with the Catholic Church, yet not practice. These internal struggles have made it more di fficult for the political organizations to be as effective as they once were. Jewish Americans have historically been a politically active, highly educated and affluent group. Jewish organizations have benefited by this particular resource pool. The first Jewish interest group formed in 1906, the American Jewish Committee, and is still politically active Other groups followed, such as the American Jewish Congress, and the Anti Defamation League of Bnai Brith. These groups consistently appear to lobby their interests in a variety of areas, and are also among the most highly active groups who file amicus curiae briefs. The major branches of Judaism all hold offices in Washington, though the most frequent activity is seen among the liberal branch. In ge neral, Jews are considered to very liberal and have been aligned with the Democratic Party since the Depression Era. However, with regards to Israel they have different political allies. One of the largest Jewish groups is the America Israel Public


55 Affair s Committee, and it is solely dedicated to protecting the interests of Israel as the Jewish homeland. This group (and others with similar goals) allies itself with conservative Christian groups. Jewish organizations have benefited from the resources of i ts membership, but also from the level of engagement they receive from members. Unlike other religious movements, the Jewish belief system emphasizes participation in this world activity. Thus leaders of these groups have not had to spend time convinci ng their members that political participation is a good thing. This long time involvement in politics has led to an over representation of Jews in politics, which continues to foster strategic interaction between these groups and American government by gr anting access. Religious groups have not been the only ones to fight religiopolitical battles, especially in the Court. The ACLU has been one of the most visible secular groups in this arena. The ACLU has helped to lead the separationist movement, aligning most often with some of the Jewish organizations on various cases. This group has been around since 1920 and has acted as a litigant in many seminal cases, such as Brown v. Board of Education (1954) More recently, the ACLU represented parents who opposed intelligent design being taught in the classroom ( Kitzmiller v. Dover Area School District, 2005 ). The ACLU has also been more active in Supreme Court cases than any other private organization. People for the American Way is another prominent sec ular, separationist group. These groups and others maintain a presence in religion and politics debate. Their activism is part of what spurred an oppositional movement, the Christian Right.


56 The Christian Right is a broad label that applies to many diff erent organizations, groups, and personal identities. It has adapted over time to meet the demands of denominations, such as the Southern Baptist Convention, and even those of nondenominational churches and talk radio, but its core ideology has remained t he same for a quarter century. Although no counterpart to the Christian Right has become as widely known, various groups, both religious and secular, a rose in order to combat the goals of this movement. For some time, evangelical Christians in America avoided organized and national political activity based on ideals of separationism which sought to protect their religious beliefs from outside influence (see e.g. Moen 1992; Oldfield 1 996; Wuthnow 1993) However, during the 1960s, evangelicals came to perceive deviant lifestyles as infiltrating everyday life in America. As Oldfield (1996) describes it, Evangelicals created a well developed subculture within American society [and] were moved to political action as that subculture found it h arder and harder to insulate itself. Wilcox views evangelicals as adopting a reactive posture, and defends their place in politics: If the Christian Right is a defensive movement that seeks to protect religious liberties of conservative Christians, the n there can be no question it has an obvious place at the bargaining table of American politics (Wilcox 2002, 12) Similarly, Fowler, Hertzke and Olson assert that the Christian Rights dissent stems from a belief that todays society denies Christians the opportunity to nurture their versions of meaning, morality and community the Christian Right emerged to insist that society must be changed (Fowler, Hertzke, and Olson 1999, 151)


57 As a cohesive political movement, the Christian Right is not more than three decades old. It was initially led by four major groups: Moral Majority, Christian Voice, National Christian Action Coalition (NCAC) and Religious Roundtable (Moen 1992) Although these groups had similar goals, they employed very different means. Moral Majority organized mar ches and rallies, registered voters, and claimed credit for electing Ronald Reagan in 1980. The Christian Voice concentrated its efforts on lobbying in Washington and published a rating of candidates. The NCAC produced newsletters for grassroots supporters, and Religious Roundtable focused on recruiting Southern Baptist pastors into political activity. All four groups met with some success, earning for themselves a place on the political agenda and claiming to register millions of new evangelical voters. But all four groups were also inexperienced and died rather quickly. This rapid decline can be attributed to three overlapping factors: high levels of religious fundamentalism, tactical failures, and limited grassroots support. Religious fundamentalism encouraged sectarianism that made cooperation and coalition building difficult. Although not all evangelicals held fundamentalist perspectives, factionalism limited the movements appeal to small constituencies. Some leaders attempted to reach out to ot her religious traditions that they believed held similar values, such as the Jewish, Catholic, and Mormon faiths (Wilcox 2002) (see also Guth et al. 2002, 163) However, ecumenism was not fully embraced because of the sect arian and exclusive nature of evangelicals view of scripture. Levels of fundamentalism within the movement also made it difficult for leaders to justify the priority they were putting on political involvement over evangelism (Fowler, Hertzke, and Olson 1999; Oldfield 1996; Wuthnow 1993) Finally, denominational differences within


58 evangelicalism, especially differences concerning how politically active one should be, proved problematic for the early Christian Right. Specific tactical failures of the early groups also contributed to their early collapse. Although the rallies that Moral Majority held may have been uplifting and effective in promoting considerable name recognition, they di d not hold long term promise. The Moral Majoritys lobbying arm lost its reputation in Washington and, as a result, the $11 million in lobbying funds that these rallies had raised proved virtually useless (Moen 1992) Direct mail tactics, as used by the Religious Roundtable, could not sustain supporters interest, since supporters were often more interested in local rather than national issues. Furthermore, membership in these groups was disorganized, and monetary contributions were often meager. Moen also asserts that the Christian Voice and Moral Majority define d their missions too broadly, while the Religious Roundtable and the National Christian Action Coalition defined purposes too narrowly; and failure was due to the fact that some of the tactics employed harmed the movements public image such as their exclusivity and fundamentalist rhetoric. In turn, many of these tactical failures can be traced to the lack of experienced elites at the helm of these organizations. A final source of early failure was the difficulty the movement had in garnering grassroots support for national political battles. Most grassroots supporters were much more concerned about what was going on in their local areas than they were in the interest groups attempt at national activity. Evidence for this claim is provided by the fact that localization was one of the major, successful changes introduced by movement


59 leaders later in time, and it remains a major source of success for the Christian Right today. Counterpart groups to this conservative Christian movement are vast, although they have never developed the same kind of cohesive identity as the Christian Right did. Membership seems to be smaller on this side, but the actual number of groups may be larger (Hofrenning 2001) The liberal religious groups include denominations generally categorized as Mainline Protestant, such as Presbyterian Church (U.S.A.) and the Evangelical Lutheran Church in America. There are also groups like the National Council of Churches (NCC), which are ecumenical organizations among denominations. Jewish Americans are well represented by prominent groups such as the American Jewish Congress. Catholic organizations (who fluctuate between liberal and conserv ative allies depending on specific issues) are also fairly well represented. There are a few issues that draw together strange bedfellows, such as aid to Israel, which both Jewish and Christian Right groups support. And most religious groups work together when their tax exempt status is threatened. Liberal religious groups have not been referred to as a political movement in the same way as Christian Right groups; hence although individual groups may have matured over time, this set of groups has not been included in the discussion of political institutionalization. The Christian Right movement matured and moved past its early failures. Although in many ways the efficacy and influence of the initial organized groups diminished, the Christian Right movement still had a base, still had grievances, and still had a place on the political agenda. Leadership maturation and institutional secularization stimulated a new phase of activity.


60 Institutionalization The leadership of the movement became more sophistic ated and experienced over time, and it attracted over time new supporters that often had organizational and other skills crucial to movement success. Christian Right leaders, observes Oldfield, learned the political ropes, emerged from under the tutelage of the New Right and the [Republican] Party, and adjusted their strategies in light of experience (Oldfield 1996, 220) Moen (1992) explains that partly as a result, there developed a growing pool of supporters from which to draw new leaders and activists, and Wuthnow (1993) argues that religious leaders began to develop networks among themselves and their organizations, enhancing the movements potential ability to generate both monetary support and potent alliances and coalitions. Secularization occurred alongside institutionalization. Religious references were dropped from the titles of some movement organizations and literature, and importantly from general rhetoric in speeches, briefings and other materials intended for public consumption (Oates 2007) Such rhetoric has been recast in terms of rights, equality and opportunity, instead of Biblical reasoning. Secularization was also evident as Christia n Right groups became less separatist and in so doing attracted new allies (Moen 1994) Even non religious groups that share similar policy agendas have been accepted in some cases as political allies. Leaders have been willing to downplay religious components of the movement when it benefits the groups politically. On the whole, the Christian Right has grown much more politically sophisticated in recent year s.


61 Avenues of Participation Truly, there is no realm of politics unexplored by religious groups today. The more institutionalized these groups became, the broader their activism. Grassroots activism, Party politics, legislative and judicial politics are several areas in which political sophistication is both obvious and relevant. Institutionalization has led groups to support a new focus on grassroots activism and local organization. New interest groups have emerged, providing targeted symbolic incentiv es and benefits, and these have proved generally successful in mobilizing grassroots support and engendering and sustaining monetary contributions (Deckman 2004; Moen 1992; Moen 1994) Christian Right supporters were so numerous; their grassroots efforts were both crucial in the formation of political groups and supporting influence. Grassroots strategy also sustains other types of influence, like lobbying the legislature or affecting local school board decisions (Deckman 2004) Grassroots level policies and activities also have fostered closer ties between local movement groups and organizations and the Republican Party (Fowler, Hertzke, and Olson 1999; Oldfield 1996) As the Party politics have shifted and changed over time, so have the alliances made with varying religious groups. The most modern era of party alignment traces back to the Civil Rights Movement. The Democratic Party aligned itself with Civil Rights in 1964, generating support from African Americans while alienating White Southerners. As what were called social issues made their way into politics via court decisions such as Roe v. Wade (1973), Republicans garnered the conservative religious vote, a base of which originated in the South. A perceived intolerance to religion by the Democratic Party also fostered this relationship (Koopman 2001) There is a tension between the


62 Christian Right and the Republican Party though. Party leaders knows that the perception of Christian Right entrenchment and influence within the Party can actually hurt them in terms of maintaining national majority status. At the same time, the sizable base is hard to ignore and if the Party cannot find the correct balance, the Republican Party stands to lose this base if it fears it is ignored. Although most Christian Right activists would not leave the Republican Party to vote Democratic, they would stay home on Election Day. Outside of electoral politics, religious groups have attempted to influence the legislature, primarily by way of lobby ing efforts. This strategy allows groups to maintain their tax exempt status, unlike other options such as forming political committees. Religious lobbyists themselves are a very small proportion among all lobbyists and there are not many cohesive relig ious platforms that groups collectively argue for, unlike business and trade lobbies who many times are able to argue coalitionally for legislation (Hofrenning 2001) While Christian Right lobbyists pursue a right to life agenda, or opposition to gay marriage, leftist religious counterparts lobby against them. Religious lobbyists have historically been engaged in outsider lobbying because they did not have the years of cultivated relationships with Congress; instead they had the grassroots resources to carry out strategies like flooding legislative offices with petitions and phone calls. Outsider lobbying strategies also make for less need to compromise on pos ition than does insider strategy. As one would expect though, as groups became more institutionalized, they have also become more likely to utilize insider strategies (Hofrenning 2001) They are more entrenched within the legislature as time goes on.


63 Another component of institutionalism is seeking to broaden political avenues used. Initially, Christian Right groups focused their efforts on the legislature. A lthough that continues, there has been a dramatic increase of participation in the courts. Less then 10 amicus curiae briefs total were filed by religious right groups between 1950 and 1980 (sample looked at religion clause cases only), from 19801996 the number of briefs filed dramatically increased but the average number of briefs per case ranged between 1 and 2. Since then, the average number of briefs per case has been around 4. Activism in the courts has roughly doubled since the activism seen when groups initially emerged. In addition to participation via amicus briefs, religious groups have spent time an effort during the nomination process and by filing suit (Guliuzza 2001) Religious groups have even opened their own law sc hools in an effort to produce more conservative minded lawyers along with Christian Right public interest firms (Hacker 2005) Religious participation in politics now spans every avenue, although some more effectively than others. Christian Right activism is entrenched in grassroots support, but over time has become sophisticated even in the way it approaches this means of participation. There are few (if any) major victories this movement can point to, yet because of the strong ideological ties it has with members, and creative marketing etcetera, it has managed to survive and evolve into the politically sophisticated movement that it is today. The broad participation seen within major religious traditions gives insight into the judicial areas we expect to see it parallel. Catholic groups are perhaps the most entrenched within the educational system because of the proliferation of Catholic


64 Schools with largely tangible benefits at stake Jewish traditions have been active in areas where religious exemptions were necessary, another tangible benefit area. And Evangelicals with assertions of Christian Nation may be the clearest example of seeking symbolic benefit Sample Data Participation patterns among religious groups and within the religious clauses hold empirical as well as theoretical benefit. There is a clear point in time where these cases begin appearing regularly in the docket and this leads to a time span that is approximately half a century long. Also, the sample includes a number of cases that is large enough yet manageable. The direction of case decision is varied in this time period, with a good sample of cases won on both the liberal and conservative sides. Liberal decisions in this topical area represent separationist decisions, and conservative decisions represent accomodationist decisions. The case sample comes from the United States Supreme Court Judicial Database (SCD) (Spaeth 2006) although m uch of the data used in this analysis was originally collected. The data collection had several components. After selecting cases from SCD, I collected and recorded all briefs filed for each of these cases inclu ding who filed them. Next, I researched each organization/party to determine if it was religious in nature. Finally, if it was, I categorized its religious attachment into one of several religious traditions. Cases in this selection look at amicus brief s filed on behalf of religious organizations in cases brought to the court via the Establishment or Free Exercise Clauses of the First Amendment. These cases range from funding of private religious schooling institutions to expression of religion in publi c places, to school prayer, and even employment. I also chose to only use cases that were actually heard before the


65 court, as this allowed the maximum amount of time for briefs to be filed while attaining the same level of analysis for all cases. The unit of analysis in the SCD is case citation.2 For the religion clause cases, there are four relevant subsets of cases available in SCD including those dealing with the Establishment and Free Exercise Clauses, and those separately listed as parochial aid and conscientious objector cases (even though they actually also address the clauses). Aside from selecting cases based on issue, SCD also provides a decisiontype variable. The only decision types excluded from analysis here are memorandum cases and judgment cases.3 Because I examine amicus curiae briefs filed at the merit stage of each case, those not granted certiorari were not useful in this particular analysis. SCD begins in 1953 and this analysis utilizes data up to 2005. Very few religion clause c ases appeared in the Supreme Court before 1953, and even fewer amicus briefs were filed. Even the first few years of analysis include eight relevant cases with no briefs filed. This case selection method left me with 111 cases in total within the religio n clause cases. Formal models are performed both at the case level and at the justice level, as described below. Once I determined which cases were valid for analysis, I tracked down the amicus curiae briefs filed for each case. This involved the Westlaw database for cases from 1995 and later and Thomson Gales Making of Modern Law (2005) for cases prior to 1978. The cases between 1978 and 1995 had to be examined using microfiche records 2SCD variable ANALU describes a variety of levels of analysis, ANALU=0 was used here as this describes Case Citation only. 3 Memoradum cases are coded DEC_TYPE=3 and Judgment cases are coded DEC_TYPE=7, included in the analysis are DEC_TYPE=1, 2, 4, 5, 6.


66 of each brief filed In total, t here are 674 amicus briefs filed for the cases in my analysis. 17 of these cases had no briefs filed by either secular or religious groups. However, the last of these nobrief cases appeared in 1985. Zelman v. Simmons Harris (2002) had the highest total amicus curiae briefs filed 36. Van Orden v. Perry (2005) had the highest number of briefs filed by religious groups 24. Not all briefs are included in this analysis. Because the focus here is on interest groups, I exclude briefs that were filed by indivi duals (pro se), or briefs that were filed by states (or a combination of states). Thus, this brings the briefs analyzed in Zelman v. Simmons Harris to 30 total. Figure 31. Cases per Issue by Supreme Court Term. Figure includes formally decided Supreme Court cases for terms 19532005, with DEC_TYPES 1, 2, 4, 5, 6, 7 and ISSUE codes 441, 444, 451, 462. Of the many variables that are available in SCD, none regard amicus curiae briefs. I collected the following information for each case: number of amicus briefs filed in


67 support of both the separationist and accommodationist side, the total number of interest groups participating in support of the each side, the highest number of collaborating interest groups in one brief (again, for each side), and all thi s data according to petitioner as well. I used the LexisNexis (2010) and Westlaw (2010) databases, a nd Making of Modern Law: U.S. Supreme Court Briefs, 18321978 (MML) (2005) to comp ile information. MML provides a complete listing of all documents filed in cases prior to 1978, where Lexis and Westlaw provide only selec ted cases from this time period. However, the latter two databases held information for the more recent cases. By using the case citations, which are original for each case, my collected data was merged with the SCD. In many cases, Amicus Curiae briefs directly state the party they support in their title. Briefs are well organized, and usually include an Interest of the Amici section and Conclusion section. These statements provide information to the Court on the relevance of the amici to the case i tself and are another opportunity for statement of support. If a brief stated support in the title, this was used to code the support variable. If not, I read the briefs interest statement and conclusion to assign brief direction. The group support vari ables were coded based on the direction of the brief. I compared my data with Collins data collected for Friends of the Supreme Court. The term selections are slightly different; his data begins and ends slightly earlier than this data does. Collins al so does not include in his analysis cases that have no briefs filed, which adds another area of discrepancy. Collins (2006) methodology transforms the data so that it is based on individual justices decisions instead of simply by case. This allows brief variables to be directly


68 compared with ideology, one of the most influential variables on case outcome. Using this technique to reshape the data increases the sample case size because data is available on more than one justice per case. Using Collins method of data transformation, the sample size for the justicelevel empirical models in this project is N=929. This sample provides an opportunity to contrast strongly ideologically motivated arguments that in many cases also have very specific monetary or tangible consequences. Therefore, if any evidence exists to support group activity motivated by symbolic rewards (as described in the second hypothesi s), it should be found within this context. Categorizing Religious Group Organizations and Distinguishing Benefit Types Next I coded religious groups versus secular groups. My definit ion of religious groups included both religious bodies and any parties filing that were found to have direct connection to religion. Because I was seeking to find religious activity, when in doubt, I coded a group as secular if at most the group made a vague reference to God in a mission statement or summary. I looked f or groups that primarily formed on the basis of religion or used religion as their call to action, and that spoke of their membership in a religious light. For example, Americans United for the Separation of Church and State was not coded as a religious g roup, as their website states: As a nonsectarian, nonpartisan organization, AU's membership includes Christians, Jews, Buddhists, people with no religious affiliation and others. Democrats, Republicans and independents have joined our ranks. Americans United is an independent organization


69 with no ties to any larger group or political movement.4 In contrast, the Baptist Joint Committee files on behalf of several Baptist Denominations and thus was coded, not surprisingly, as religious.5 Table 31. Group s that filed ten or more briefs Group Name Number of Briefs Religious Tradition American Jewish Congress 50 Jewish Anti Defamation League 43 Jewish American Civil Liberties Union 43 Secular American Jewish Committee 38 Jewish Baptist Joint Committee 2 9 Mainline Americans United for the Separation of Church and State 28 Secular National Jewish Commission on Law and Public Affairs (COLPA) 27 Jewish Christian Legal Society 25 Evangelical Catholic League for Religious and Civil Rights 22 Catholic Unit ed States Catholic Conference 22 Catholic National Council of the Churches of Christ in the USA 20 Mainline National Association of Evangelicals 19 Evangelical Rutherford Institute 17 Evangelical People for the American Way 17 Secular Council on Relig ious Freedom 16 Evangelical National Education Association 15 Secular Synagogue Council of America 14 Jewish Union of American Hebrew Congregations 14 Jewish Americans for Religious Liberty 14 Secular National School Board Association 14 Secular Fami ly Research Council 11 Evangelical National Council of Jewish Women 11 Jewish National Coalition for Public Education and Religious Liberty 11 Secular National Committee on Public Education and Religious Liberty 11 Secular American Ethical Union 10 Ath eist/Humanist General Conference of Seventh day Adventists 10 Evangelical Presbyterian Church in the United States of America 10 Mainline Unitarian Universalist Association 10 Mainline 4 5 The Appendix includes coding details for every organization included.


70 The final step was coding religious tradition to each designated r eligious group. Previous models of interest group activism in the court examine group types in very broad categories, such as citizen groups or governmental agencies. The categorization of religious traditions used in this analysis is original in judicial politics and will also enlighten religion and politics scholars as to how religious traditions have followed their own trends of political participation in the judicial branch. Cat egories for this coding include Catholic, Jewish, Evangelical Protestant, M ainline Protestant, Atheist/Humanist, Other and Ecumenical. This coding does not align completely with other religious tradition schema. The only categories that have enough briefs filed for any analysis were Catholic, Jewish, Evangelical and Mainline Pro testant traditions. Initially, I included separate categories for some religious traditions in the Other category, such as Jehovahs Witnesses and Mormons. However, even when collapsed, the total number of briefs for the category is very small. I crea ted an Ecumenical category to place religious organizations that were specifically interfaith. Catholic and Jewish Organizations are not usually difficult to identify. I used membership in the National Council of Churches (NCC) and the National Associ ation of Evangelicals (NAE) to help distinguish between Evangelical and Mainline Protestant groups. Groups identified with the Christian Right were categorized as Evangelical, and others, such as the Baptist Joint Committee were connected to Mainline Deno minations. Many of these organizations had websites with about us descriptions and resources links that also helped in making these distinctions. There are many umbrella groups (like the NCC) that include various smaller organizations. In situations w here several


71 groups of different traditions together filed one brief, each tradition was given credit for a brief. I have discussed two different benefit types, symbolic and tangible benefits. This typology provides another avenue of analysis. When us ed as empirical variables, they are coded dichotomously. Although characteristics of both benefits may appear in the same case, only one type of benefit is considered the primary, as outlined in the previous chapter. Figure 32. Cases per Benefit Categ ories by Specific Issue Therefore each case is coded either tangible or symbolic and not both. This classification is based on the Courts synopsis of the case, not on the arguments made


72 by either party. It would have been ideal for the tangible/symbolic dichotomy to align with the Establishment and Free Exercise Clause split. However, the clauses overlap in such a way that dividing along this line would be both controversial and difficult in terms of interpretation. There is no consistency in how these cases are framed over time. Instead, the tangible/symbolic division allows for a more clear cut and theoretically relevant differentiation. When the data are transformed and examined at the justicelevel, the sample size increases enough to perform empiric al tests controlling for the tangible and symbolic schema. Tangible subcategories include funding, property & land use, blue laws and religious exemption. Symbolic subcategories include t hose dealing with proselytizing, school prayer and religious displays Conducting a DecisionMaking Analysis Variables The dependent variable for most models is the variable separation. Separation is a dichotomous variable reflecting whether or not the Supreme Court ruling was ideologically liberal. It is based on the SCD DIR variable which describes the direction of the decision with regards to the primary ISSUE it addresses. In the new variable, liberal=separation= 1, and conservative=accommodation= 0. SCD includes information about subsidiary issues in the case as well. However, the DIR variable is based on the primary ISSUE only, so using subsidiary issues results in an inconsistent outcome. This selection also lends itself to a liberal/conservative decision outcome model because the separation/accommodation sides alig n perfectly with this framework. Issues filed underneath the First Amendment are coded as liberal if they are procivil liberties or civil rights claimant or pro neutrality in establishment clause cases (Spaeth 2006,


73 53) This dependent variable selection also allows the use of a control variable in SCD for the ideology of the justices on the court at the time of the decision. Ideology is one of the most frequently cited variables that affects case outcome, so it is crucial that ideology be controlled for in any analysis of case outcome. Independent variables include symbolic, tangible, separation & neutral briefs, accommodation briefs, separation interest groups, accommodation interest groups, collaboration, solicitor general, ideology, and median distance. The first seven variables come from the merged data, solicitor general and ideology are control variables, and median distance variables are used as parts of the interaction terms. In addition, some of the models include variables controlling for religious traditions, Jewish, Catholic, Evangelic al, Mainline, and contrast religious and nonreligious group participation, Secular and Religious Groups. Symbolic and tangible are mutually exclusive variables describe the nature of the policy being sought in the case. If the outcome of the case would have a direct tangible benefit for a group, it is designated as symbolic =0 and tangible=1 This coding is based on the description of benefit type during the data collection. Symbolic and tangible are used as interaction terms with brief and group variables, as well as the median distance to separate tangible and symbolic cases in those analyses. Separation & neutral briefs and accommodation briefs refer to the number of briefs filed on each side of the case. Separation & neutral briefs is the total of briefs filed on behalf of the side arguing for the separation or liberal outcome as well as briefs that filed a brief and did not designate a side. A ccommodation briefs was the number filed on behalf of the side arguing for accommodation, or the conservati ve outcome. In


74 some cases, adding these variables together does not result in the number of total briefs because briefs filed by individuals pro se are not included in the analysis. Initially neutral briefs were given their own separate category. Howev er, there were only 14 total neutral briefs filed, they were each filed in separate cases, and each filed by different parties with the exception of the Student Press Law Center which filed 2 neutral briefs within this case selection. Only one case prior t o 1980 had brief filed that considered itself neutral. The other cases occurred in the latter half of the time period analyzed. According to Bartrum (2009) the 1980s marked an attack on separationist doctrine by at least one Supreme Court J ustice (Rehnquist). This suggests that a neutral stance by nature is supportive of a separation outcome. The neutral briefs behaved in the model as separation briefs, thus the variables were collapsed. Separation & neutral i nterest groups and accommodation interest groups account for the total number of interest groups involved in supporting either litigant. These variables differ from separation & neutral briefs and accommodation briefs because interest groups collaborate together and one brief may include the names of several groups. Interests here describe any organized party, thus each city or school board that filed is counted as an individual interest, as are groups such as the National Council of Churches. The control variables I use are those that have been found to be significant in prior studies. Two variables account for briefs filed by the Solicitor General. They frequently appear to be more influential than other briefs and this control has been used in almost all of the studies already di scussed. Solicitor General Separation represents briefs filed


75 on behalf of the separation side (N=5), and Solicitor General Accommodation represents briefs filed on behalf of the accommodation side (N=22). Table 32. Statistics of Interest, N=111 cases T otal Briefs on Each Side (Percent of Total) Accommodation 361 (52.2%) Separation & Neutral 330 (47.8%) Total Briefs 691 Total Groups on Each Side (Percent of Total) Accommodation 782 (46.4%) Separation & Neutral 905 (53.6%) Total Groups 1687 Side Filed as Petitioner (Percent Cases Won) Accommodation 50 (45%) Separation 61 (55%) Ideology is a variable containing the Martin Quinn ideology scores. Ideology has been cited as an excellent predictor of case outcome in judicial politics res earch, not just in the area of amicus curiae briefs. This data is publicly available. Each justice has a score for every term calculated with a dynamic probability model. Martin & Quinn (2002) have shown that using a static score for one justice throughout tenure does not as accurately capture ideology. Instead, justices do evolv e over time and the Martin Quinn scores reflect that change. Scores are recorded for each justice in each term. This variable is inverted in order to align with the dependent variable Separation. The median distance variable controls for the individual justices ideological distance from the median justice in that particular case. First, the median justice was calculated for each case. Then, the median distance variable itself was calculated as the difference between the ideology score of the justice and the median justice in a conservative or liberal direction. This median position is dependent on how many


76 justices participate in the case, and therefore may not be the actual median justice of that particular term. This variable is used as an interaction t erm with the brief and group variables, and also with the Solicitor General controls. A significant variable in either direction that includes this term suggests that the effect of the variable is stronger the closer the justices ideology is to the median, or the center of the ideological spectrum. If these variables are not significant, the more polarized justices votes are equally affected to than those in the center. Religious group variables describe the number of groups involved in each case of a particular religious tradition. If Evangelical =9, it means that 9 separate Evangelical interest groups filed in the case. It is a subset of the interest group variables however it does not distinguish between the side the brief was filed to support. It also does not describe the number of briefs. However, it is a stronger variable than a simply dichotomous variable since the numeric value has a basis in level of participation. Empirical Hypotheses and Estimation Strategies The two sets of analyses addres s the underlying principles in each generalized hypotheses. The following hypotheses describe specific expectations in both the benefit and efficacy analysis and further detail expectations for religious traditions. The first hypothesi s was that group par ticipation influences tangible case outcome more so than in does in symbo lic case outcome. In the benefit analysis, this translates to: H1a: The more participation by separationist groups, the more likely the outcome of the case will favor separationism. Tangibly, we expect Brief & Group Separation predictor variable coefficients to be positive. H1b: Conversely, the more participation by accommodationist groups, the less likely the outcome of the case will favor accommodationism. We expect the Accommodati on predictor variable coefficients to be negative..


77 H 1c : Groups participating as amici curiae in tangible benefit cases have higher levels of efficacious influence than symbolic cases. Since case outcome is a winloss scenario, or in this scenario, a ruli ng toward one side of the ideological spectrum or the other, the dependent variable is dichotomous by nature and cannot be analyzed by linear regression, either. These first hypotheses are assessed empirically with onetailed formal logisitic modeling where Separation is the dependent variable. These models test the levels of efficacy on case outcome and contrasts them between case benefit types. The models are specified at the justicelevel. Significant results in these models will support H1. Significan t results for the interaction terms that include ideology/median distance variables for symbolic cases in a direction opposite than expected for H1a and H1b will support H1c. The second hypothesis dealt with levels of participation and collaboration: H2 : Collaboration levels should be lower when the case type is tangible and higher when the case type is symbolic These hypotheses are evaluated with frequency tables at the caselevel, as opposed to the justicelevel data used in the first set of models. The sample size of case level data when looking at case benefit type is not large enough for formal modeling. Therefore, cross tabulations of collaboration trends are used instead. Before formally assessing these hypotheses, I look into participation pat terns of the involved religious traditions. Out of all these groups, Catholic organizations have the most at stake when it comes to parochial aid, which is by far the largest case subset. Jewish organizations have a history of participation within minorit y religious battles, in which most religious exemption cases fall. Evangelicals stand out as particularly emphasizing symbolic issues with their membership.


78 H3a: Catholic, Jewish and Mainline organizations are pursuing tangible benefits and therefore effic acious influence should be found. H3b: Evangelical organizations are pursuing symbolic benefits and therefore efficacious influence should not necessarily be found. These four traditions have levels of participation that allow for analysis. Scholars of re ligion and politics have found that there is no appropriate continuous scale of religiosity that allows us to utilize linear regression across varying religious traditions. Thus, the best way to compare these traditions in terms of the number of briefs filed over time is to utilize the basics and compare frequencies. I also perform a basic logistic regression where participating groups across tradition are independent variables. In the formal logistic models where Symbolic is the dependent variable, tra ditions are controlled for in a similar manner. Using religious groups as the basis of analysis approaches the puzzle of amicus curiae briefs through interest group theory, as opposed to much of the prior research that has been focused instead around judi cial variables alone. Thinking About Participation Qualitatively Empirical tests can only tell so much. Taking a closer look at some of the most active groups sheds more light on their political styles. While the frequency distributions and logit models s how trends and levels of success that groups are having, a discourse on a group in each benefit category can give a deeper understanding of why groups are choosing this avenue to participate politically, and how much of their resources they are funneling i nto judicial strategy. The groups chosen were among the most active in the courts and made information about their participation public. The religious interest groups examined are the American Jewish Congress, the United States Conference of Catholic Bis hops, the Baptist Joint Committee and the


79 Christian Legal Society. I discuss each groups political activism historically, focusing on their activity in judicial politics by looking at some of the cases they have each prioritized either as a litigant, or by filing an amicus curiae brief. I also collect groupspecific data about group court activity and use this as another avenue to compare separate religious traditions. Finally I contrast their judicial activity with the trends of the overall religious t raditions as shown in the empirical dataset. These case studies illuminate some of the differences and similarities of group activism based on religious tradition. They also give deeper insight into the operations of religious interest groups.


80 CHAPTER 4 R ELIGIOUS GROUP PARTICIPATION PATTERNS Organizations are very clearly seeking influence in the Court, but to what end? If they desire to influence tangible outcomes, we should see their participation garnering actual result in case outcome. Conversely, if their participation is moral and symbolic, it may be worthwhile regardless of a win or loss in court. Religious Traditions Participation by religious group is categorized in many ways. One of the more popular is to examine and compare groups on the basis of religious tradition. Scholars have also used levels of religious participation to look at groups and membership, such as how often a member attends worship services. This project, though utilizing some of the tradition schema, will focus on this parti cipation as geared towards tangible or symbolic benefits as described in Chapter 3. These benefit types overlap, but if there is a tangible gain or loss that would result based on the outcome of the case, it is labeled as such. The chart below shows the breakdown of cases into their overall benefit categories by religious tradition. Cases with material interest greatly outnumber those with primarily symbolic concerns The chart below was created by giving credit for participation in the case anytime an organization in each of the traditions filed at least one brief in that case. The four main traditions are shown. 15 cases are categorized as symbolic and 96 fit into the tangible case benefit category. The next chart shows the breakdown of case type in i ndividual benefit category. The two largest categories of cases are funding and religious exemption cases and


81 participation in these areas represent the bulk of total participation and b oth Figure 41. Participation by Case Type and Religious Tradition Figure 42. Participation by Detailed Case Type and Religious Tradition


82 subcategories are tangible benefits. Funding cases include any case regarding the use of public space or funding for religious purpose, such as Zelman v. Simmons Harris where tuit ion funding toward religious schools was debated or Good News Club v. Milford Central School where a Christian Club asserted they should be able to meet on school property. Religious exemption cases are circumstances where religious groups or individuals seek different treatment from the law because of their religious beliefs. Church of Lukumi Babalu Aye v. City of Hialeah is one of the most well known cases here, as the Church brought forth action against the city statutes regarding animal slaughter. Employment situations are another area that has regularly shown up in religious exemptions, such as Goldman v. Weinberger where a rabbi wished to wear his yarmulke though it was not part of the accepted uniform. There are also several cases in this category dealing with exemption from military service based on conscientious objection. Two other smaller categories are included: property and land use refers to disputes over church property and what government entities can do with it, blue laws refer to cases regarding businesses right to be open on Sundays. Each tradition spends the most time in Funding cases, and the number of cases per tradition is fairly equal in this category. Jewish groups do put forth the most participation, in the Funding category, but m ore clearly in the Religious Exemption category. The three symbolic case categories were proselytizing, school prayer and religious displays. Proselytizing includes cases where religious groups were prosecuted in some form for public testimony about thei r faith. School prayer also includes moment of silence and bible verse cases, or prayer at school functions. Religious display cases are those where there was some form of religious display on public property, whether it


83 be for a holiday celebration ( Lyn ch v. Donnelly ) or the Ten Commandments in a courthouse ( McCreary County v. ACLU ). There are not truly enough cases in the symbolic benefit category for sophisticated analysis at the caselevel, however, justicelevel analysis is possible once the data is reshaped. The next chart shows the case participation levels as in the above chart, divided by the total number cases in the given category. Therefore, it gives a clearer picture of what types of cases are receiving attention from the various religious t raditions. The number of cases heard before the court in some categories is very small. There are a number of factors that influence whether cases are heard, so the absence of cases in certain areas does not necessarily mean that groups are not invested or interested in that particular area. Some issues might be more complex than others, so that they have more facets that are introduced in a number of cases. Figure 43. Percent Participation by Case Type


84 When controlling for the total number of cases i n these categories, the four major traditions trend together in most categories, but their trends are different from what we might expect based on the number of cases filed. Religious display and school prayer cases receive lots of attention, though they are considered a symbolic benefit. These case numbers are very small though. Jewish organizations filed briefs in 100% of the display cases and percentage wise, they participate in symbolic benefit cases on a higher level than tangible benefit cases. However, Jewish groups also show very high levels of participation in funding, religious exemptions and blue law categories. Funding & property cases receive high attention from each tradition. Even though religious exemption cases are the most frequently filed, they seem somewhat slighted when it comes to levels of participation, with the exception of participation by Jewish groups. Evangelical and Jewish groups are the only traditions to file in Blue Law cases and Evangelical and Mainline traditions are the onl y ones that participate in proselytizing cases. These participations shed light on, and support the assumptions of H3. Catholic organizations, being proportionally more active in litigation regarding public funding and seeking relatively high levels of parochial aid, are pursuing tangible benefits and therefore efficacious influence should be found. Jewish organizations, being proportionally more active in litigation such as public funding and religious exemptions, are pursuing tangible benefits and there fore efficacious influence should be found. Mainline organizations, being proportionally more active in litigation such as funding, property and religious exemptions, are pursuing symbolic benefits and therefore efficacious influence should not necessarily be found. And finally, Evangelical


85 organizations, being proportionally more active in litigation such as religious displays and school prayer, are pursuing symbolic benefits and therefore efficacious influence should not necessarily be found. A logistic r egression analysis assesses the first component of these hypotheses. Each religious tradition is regressed upon the dependent variable Symbolic For tangible cases, Symbolic =0, for symbolic cases Symbolic =1. If Catholic organizations are truly participat ing more in tangible cases, the coefficient for the independent variable Catholic should be negative. If Jewish, Evangelical and Mainline organizations are more active in symbolic cases, the coefficient for their corresponding independent variables should be positive. Group variables are numeric and represent the total number of briefs filed per tradition. Table 41. Logit Regression Results, Religious Tradition Participation on Case Type Independent Variables b (s.e.) Jewish Groups 0.27 0.38 0.24 Catholic Groups 1.58 0.85 0.03 Evangelical Groups 0.63 0.22 0.00 Mainline Groups 0.13 0.52 0.40 Secular Groups 0.06 0.13 0.32 Constant 2.06 0.44 0.00 N observations 111 Psuedo R2 0.22 Likelihood Ratio 2 19.72 0 .00 Dependent Variable Coded dichotomously, Symbolic=1 for symbolic case, Symbolic=0 for tangible case; probabilities are calculated with a one tailed test. Two of the four religious traditions evaluated show significant results. Catholics have signifi cantly higher levels of participation in cases with a tangible benefit. For Evangelicals, higher participation is seen in symbolic cases. This means that in the efficacy analysis, Catholic, groups are expected to file efficaciously, while Evangelical gro ups may not be as concerned with a particular case outcome. Given the prominence


86 of the Catholic parochial school system, and the high numbers of cases filed in this area, this finding is not surprising. Results are not significant for Jewish and Mainline groups, though the direction of the coefficients does trend toward tangible cases. This should also translate in terms of the Collaboration hypotheses. We should see more collaboration between Evangelicals than we do between the other groups. Overall, t he third hypothesis is supported. Conclusions Within the religion clauses, there are varying levels of participation of different types of cases. Breaking down these cases in terms of symbolic and tangible benefit highlights the crux of the arguments for efficacious influence. The participation patterns of the prominent religious groups of this analysis continue to support the hypotheses within this project. There have been many more tangible benefit cases in the Supreme Court than cases that can be interpreted as symbolic. However, once controlling for the number of cases, there is a significant difference in the levels of participation by varying religious tradition. Catholic, Jewish and Mainline organizations prioritize participation in tangible bene fit cases and Evangelical cases have higher interest in symbolic benefit cases. Now that the participation patterns have been established, we can examine the hypotheses on efficacy and group collaboration.


87 CHAPTER 5 DECISION MAKING ANALYSIS OF GROUP EFFICACY AND COLLABORATION The empirical analyses are divided into three parts. The first section uses the dependent variable Separation to determine whether amicus briefs are influential on case outcome. This series of models address H 1a, H1b, and H1c The next set of tables examines collaboration and case type and addresses H2 And the final section includes more frequency analysis addressing collaboration and religious tradition, H3a and H3b. Efficacy In the following analyses, I present four different m odels assessing the efficacy of briefs including predictor variables Separation & neutral briefs and accommodation briefs, ideology, median distance and solicitor general briefs on each side on the dependent variable. The first set of models, Models 14 i n Table 51, shows each pair of amicus curiae variables on their own. The first table shows total number of briefs, and three models with interaction terms. These interaction terms address the influence of case type, tangible versus symbolic, on the infl uence of briefs as well as the ideological distance of the justice from the median. In all these models, the dependent variable, Separation, equals 1 when the case outcome is in a liberal direction. Therefore positive coefficients indicate variables that predict separationist outcomes and negative coefficiences signal accommodationist outcomes. Model 1 shows the traditional collapsed model with no interaction terms. Model 2 shows a model with ideology used both as an independent variable and as an interac tion term with brief variables. Model 3 shows median distance as the independent control for ideology and as an interaction term with the brief variables.


88 Finally, Model 4 uses the overall ideology as the independent control for judicial ideology, and med ian distance as the interaction used with each case. Because the distance variable is ideology rescaled, collinearity problems arise when using the two variables simultaneously. However, it is more theoretically logical to use a term for overall ideology on its own in conjunction with the median distance interactions because of the justices relationships to one another on any given case. According to our hypotheses on efficacy in case type, we expect to see different results when different benefits are at stake for groups. In tangible cases, we should see efficacious outcomes. But, in symbolic cases, efforts may not show in terms of case outcome. Utilizing interaction terms is crucial in these models because it allows for different efficacy results between symbolic and tangible cases. Using only the baseline models collapses the results, and thus no distinction can be made between them. However, once we are able to examine the case types on their own, we can assess a difference in the type of influence groups are having on outcome. The strongest predictor of case outcome across the models is ideology. However, at the individual justice level, there is support for both efficacy and for varying levels of efficacy by case benefit type as well. In each model, the number of briefs filed on either side has a significant influence on outcome in the direction expected. Regardless of how ideology is accounted for, briefs are a factor in outcome. Also consistent throughout the models are the counterintuitive r esults for the Solicitor General variables. It appears that in this case selection, the executive has not been successful in pushing his agenda.


89 Table 51. Logit Regression Model of the Influence of Amici Curiae by number of briefs in the U.S. Supreme Court, 19532005 Terms Model 1 Model 2 Model 3 Model 4 b (s.e.) b (s.e.) b (s.e.) b (s.e.) Ideology 0.54 0.05 0.00 0.44 0.06 0.00 0.48 0.06 0.00 Median Distance 0.40 0.06 0.00 Separation & Neutral Briefs 0.06 0.03 0.02 0.06 0.03 0.02 0.04 0.03 0.07 0.06 0.03 0.02 Briefs*Tangible*Ideology 0.00 0.02 0.42 Briefs*Symbolic*Ideology .02 0.05 0.33 Briefs*Tangible*Median Distance 0.00 0.02 0.48 0.00 0.02 0.30 Briefs*Symbolic*Median Distance 0.06 0.05 0.10 0.08 0.05 0.06 Accommodation Briefs .04 0.02 0.04 .04 0.02 0.02 0.03 0.02 0.06 0.04 0.02 0.05 Briefs*Tangible*Ideology 0.00 0.01 0.48 Briefs*Symbolic*Ideology 0.05 0.04 0.08 Briefs*Tangible*Median Distance 0.00 0.01 0.45 0.00 0.01 0.37 Briefs*Symbolic*Median Distance 0.11 0.05 0.02 0.11 0.05 0.02 SG Separation 0.33 0.54 0.27 0.24 0.57 0.34 0.23 0.53 0.33 0.31 0.53 0.28 SG Accommodation .06 0.21 0.39 0.15 0.24 0.27 0.26 0.23 0.13 0.16 0.23 0.25 SG Separat ion*Ideology .07 0.31 0.41 SG Accommodation*Ideology 0.43 0.17 0.00 SG Separation*Median Distance 0.07 0.33 0.42 0.03 0.33 0.47 SG Accommodation*Median Distance 0.54 0.18 0.00 0.51 0.18 0.00 Constant 0.22 0.11 0.02 0.22 0 .11 0.02 0.09 0.10 0.19 0.22 0.11 0.02 N observations 929 929 929 929 Psuedo R2 0.17 0.18 0.17 0.19 Likelihood Ratio 2 214.05 0.00 233.01 0.00 218.36 0.00 241.36 Likelihood Ratio Test, Models 1 and 4 27.32 0.00 Dependent Var iable Coded dichotomously, Separation=1 for case outcome toward separation, Separation=0 for case outcome toward accommodation; probabilities are calculated with a one tailed test.


90 In Models 2 and 3, we start to see some support for efficacy levels that are dependent on case benefit type. In Model 2, the interaction term for briefs filed on the accommodation side in symbolic cases is significant and positive, meaning that the likelihood of a separation outcome in symbolic cases actually increases with more briefs filed on the accommodation side. In Model 3, this relationship strengthens, however the median distance variable does not capture as much variance as did the ideology variable in Model 2. The strongest model is Model 4 which uses ideology an d median distance in conjunction. Because median distance controls for each justices ideology in relation to the other justices who participate in that particular case, it makes sense that it better captures the relationship with the briefs filed. The results show that the further a justice is from the median in a given case, the less likely his vote is to be influenced by the brief filed. Additionally, ideology is a stronger predictor on its own as it controls for the temporal change of the Courts shift ing predispositions over time. Once both case type and ideological distance are controlled for with these interaction terms,6 there is support for differing levels of efficacy on the accommodation side. Though the brief variables on their own continue to perform significantly, briefs filed in symbolic cases have an opposite effect. This supports both the first and second hypotheses, there is support for efficacy as a result of participation and specifically that it is linked to cases with tangible benefi ts. I performed a likelihood ratio test between the base model (Model 1) and Model 4 as the strongest model which was strongly significant. The following predicted 6 The use of interaction terms in logistic regression is not as reliable as in ordinary least squares, but on average the vari able functions well. See Ai, Chunrong, and Edward C. Norton. 2003. Interaction Terms in Logit and Probit Models. Economics Letters 80:123129.


91 probability figures are also based on Model 4. Each graph holds the dependent variable equal to 1, and all other predictors at their means.7 Figure 51. Predicted Probability of Separation Outcome by Number of Separation & Neutral Briefs Figure 51 shows the predicted probabilities of a separation outcome as the number of separation and neutral briefs increase from 0 to 20. The increase in probability for tangible cases as more briefs are filed is more dramatic than it is in symbolic cases. Though both case types show a positive relationship with probability for outcome in their favor, the effect is not as strong in symbolic cases. 7 Predicted probabilities were calculated using the formula fr the logit function in excel and graphing the resulting outcomes while holding other variables at their means.


92 Figure 52. Predicted Probability of Separation Outcome by Number of Accommodation Briefs Figure 52 shows the predicted probabilities for a separation outcome when the number of accommodation briefs are changing, holding other variables at their means. Here, the difference between case types is more pronounced. Briefs filed in symbolic cases are not at all efficacious as measured by case outcome. In fact they show a positive relationship with separation. Howev er, in tangible cases, more briefs on the accommodation side decreases the likelihood of a separation outcome. The next model set shows the justicelevel analysis for the Group variables instead of Brief The same outcome is expected for each variable subset as in the brief models. Group variables perform and look very similar to the brief models. Again, ideology is the most powerful performer, and as the number of groups participating on each side increases, the more likely the outcome aligns. The inter action terms in the final model show that at least for the accommodation side, efficacious influence is found in tangible cases, but not in symbolic cases.


93 Table 52. Logit Regression Model of the Influence of Amici Curiae by number of groups in the U.S. Supreme Court, 19532005 Terms Model 1 Model 2 Model 3 Model 4 b (s.e.) b (s.e.) b (s.e.) b (s.e.) Ideology 0.54 0.05 0.00 0.41 0.06 0.00 0.44 0.06 0.00 Median Distance 0.36 0.06 0.00 Separation & Neutral Groups 0.02 0.01 0.01 0.03 0.01 0.00 0.01 0.01 0.06 0.02 0.01 0.01 Groups*Tangible*Ideology 0.01 0.01 0.03 Groups*Symbolic*Ideology 0.00 0.02 0.49 Groups*Tangible*Median Distance 0.01 0.01 0.05 0.01 0.01 0.12 Groups*Symbolic*Median Distance 0 .03 0.03 0.16 0.04 0.03 0.11 Accommodation Groups 0.01 0.01 0.09 0.01 0.01 0.05 0.01 0.01 0.19 0.01 0.01 0.15 Groups*Tangible*Ideology 0.01 0.00 0.08 Groups*Symbolic*Ideology 0.02 0.03 0.25 Groups*Tangible*Median Distance 0.01 0.00 0.05 0.01 0.00 0.03 Groups*Symbolic*Median Distance 0.07 0.04 0.05 0.07 0.04 0.05 SG Separation 0.40 0.54 0.23 0.31 0.57 0.30 0.29 0.53 0.29 0.37 0.53 0.24 SG Accommodation 0.18 0.20 0.18 0.01 0.23 0.48 0.36 0.22 0.05 0.29 0.22 0.10 SG Separation*Ideology 0.09 0.31 0.38 SG Accommodation*Ideology 0.46 0.16 0.00 SG Separation*Median Distance 0.04 0.33 0.46 0.01 0.33 0.24 SG Accommodation*Median Distance 0.61 0.18 0.00 0.60 0.18 0.00 Constant 0.20 0.1 0 0.02 0.17 0.10 0.00 0.06 0.10 0.28 0.17 0.10 0.04 N observations 929 929 929 929 Pseudo R2 0.17 0.18 0.17 0.19 Likelihood Ratio 2 214.64 0.00 235.48 0.00 220.18 0.00 242.83 0.00 Likelihood Ratio Test, Models 1 and 4 28.20 0.00 Dependent Variable Coded dichotomously, Separation=1 for case outcome toward separation, Separation=0 for case outcome toward accommodation; probabilities are calculated with a one tailed test.


94 The group models are inferior to the brief models. This suggests that arguments made in the briefs themselves have more impact on the Court than do the sheer number of groups involved. Briefs are not being merely used to gauge public opinion, instead their merit may actually be found inside. Predicted probability graphs below were calculated as they were for the brief measures. Figure 53. Predicted Probability of Separation Outcome by Number of Separation & Neutral Groups The figure for predicted probability of separation based on number of separation groups does show differences between the brief specification model and the group model. Here, the relationship for groups and outcome in tangible cases is positive, while the relationship between groups and outcome in symbolic cases is actually slightly n egative. These relationships were not found to be significant in the model, but they do show behavior consistent with expectations. The final figure shows predicted probability as the number of accommodation groups increases. It shows the same relations hips as were brought forth in the brief figure. As the number of conservative groups participating in tangible cases increase,


95 the probability of a separation outcome decreases. For symbolic cases, the total number of groups on the conservative or accomm odation side seems to only make an outcome on the separation side more likely. Figure 54. Predicted Probability of Separation Outcome by Number of Accommodation Groups Considering both sets of models, it is clear that these groups have a goal structur e not entirely dependent on policy win. Thus the judicial scholarship promoting efficacy above all else does not explain participation in this type of case. Instead, the interest group literature describing alternative participation benefits, such as Wal kers work on group maintenance (1991) holds more explanatory power. Political participation via Amicus Curiae groups in the Supreme Court does have efficacious influence, especially when case outcome will result in a tangible benefit for the groups involved. Groups participating in symbolic cases appear to be doing so without much concern as to the outcome of the case, suggesting that there are other


96 motivations behind this participation. This distinction is only supported empirically in participation on the accommodation side. T he next empirical tests will look at the collaboration between these groups to assess whether it too is related to case benefit type. Collaboration Analysis The above models show that groups are participating efficaciously in certain types of cases. They do not describe levels of participation for each case type, and if these collaborations also affect efficacy. H2 assert s that groups seeking a tangible benefit will be less concerned with collaboration, and groups seeking symbolic benefit will be more lik ely to collaborate to conserve their resources. Table 53. Collaboration by Case Benefit Type, (N=111) Tangible(N=96) Symbolic(N=15) Cases without Collaboration 37.50% 13.33% Cases with Collaboration 62.50% 86.67% The frequency analysis in the above table shows the percent of cases where groups collaborate by case benefit type. There are only 15 symbolic cases in the analysis, so a true empirical test cannot be performed. However, as the hypotheses assert, there is less collaboration among groups when a case involves a tangible benefit. The following table regards the collaboration levels between groups filing on the accommodation or separation side. Table 54. Collaboration by Case Benefit Type by Side Tangible(N=96) Symbolic(N=15) Accommodation Separation Accommodation Separation Cases without Collaboration 66.67% 42.71% 40.00% 20.00% Cases with Collaboration 33.33% 57.29% 60.00% 80.00%


97 This table shows lover levels of collaboration all around because it appears that collaboration was not oc curring within the same cases. Groups who filed on the accommodation side have lower levels of collaboration than groups who file on the separation side. This makes sense given the success of the separation group parameter when analyzed with the accommodation group parameter. More collaboration means a higher number of groups. More importantly though, the trends as far as case benefit type go are opposing depending on which side the group is filing to support. Separationist groups actually have higher levels of collaboration in tangible cases, and Accommodationist groups are those who use collaboration more readily for symbolic cases. This espouses the rhetoric of the conservative religious movement, and makes sense given their group goals and current proactive stance. Religious Traditions The data collected comparing trends between religious traditions shed light into which types of groups participated in the tangible versus symbolic case type. I presented the logistic analysis of case type in Chapter 4, but now I perform one more empirical test to see if participation by tradition is linked toward a particular case outcome. The analysis below shows very limited results. The overall model is not significant, but there are significant trends for two traditions. The more participation by Catholic groups, the less likely a separation outcome. This suggests that Catholics have been effective in promoting their agenda as far as funding for religious schools goes, considering that this is where their partici pation is the heaviest. The model also shows that higher levels of participation by Mainline Protestant groups make a separation outcome more likely. This suggests some success for these groups as well considering that they filed on this side most frequently.


98 Table 55. Logit Regression Results, Religious Tradition Participation on Case Outcome Independent Variables b (s.e.) Jewish Groups 0.11 0.22 0.30 Catholic Groups 0.44 0.29 0.06 Evangelical Groups 0.03 0.12 0.42 Mainline Groups 0.48 0.31 0.06 Secular Groups 0.00 0.06 0.48 Constant 0.06 0.27 0.41 N observations 111 Psuedo R2 0.03 Likelihood Ratio 2 4.61 .23 Dependent Variable Coded dichotomously, Separation =1 for separation outcome, Separation =0 for accommodation outcome; probabilities are calculated with a one tailed test. This frequency table shows participation by religious tradition among cases where collaboration occurs. Jewish groups show relatively equal levels of participation in symbolic and tangible cases, with a slight edge in symbolic cases. Evangelical groups have much higher levels of participation in symbolic cases where collaboration is occurring. Catholic and Mainline group participation looks similar, with both showing fairly low levels of participation in cases where collaboration is occurring, in both case types. Table 56. Collaboration by Case Benefit Type by Religious Tradition Tangible(N=96) Jewish Catholic Evangelical Mainline Cases without Collaboration 65.63% 83.33% 76.04% 86.46% Cases with Collaboratio n 34.38% 16.67% 23.96% 13.54% Symbolic(N=15) Jewish Catholic Evangelical Mainline Cases without Collaboration 60.00% 93.33% 53.33% 93.33% Cases with Collaboration 40.00% 6.67% 46.67% 6.67% Discussion This project provides intriguing new findings as well as bolsters some of the existing research on judicial outcome factors. Ideological predispositions of individual


99 justices hold up to be the strongest predictor of case outcome. Amicus Briefs also influence case outcome and this influence is stronges t in cases where tangible benefits are at stake. Additionally, briefs themselves are most effective in influencing the decision of justices with ideological predisposition closest to the center. Collaboration amongst groups increases within symbolic cases. The results also challenge some of the existing research on the effectiveness of Solicitor General briefs. Ideology of individual justices continues to show the strongest consistent relationship to efficacy. Segal and Spaeths (1993) work on the attitudinal model has built a strong foundation t hat has stood up in numerable projects since, this one being no exception. Martin and Quinn (2002) showed that ideology and attitude are subject to change over time, therefore group participation in the Court aimed at influencing individual justices is on target. The significance of interaction terms controlling for ideological pol arization suggests that this logic is not lost on groups. Justices toward the median are more likely to be influenced by briefs; therefore the language used in these briefs must be effective in some way. Groups most likely are aware that a justice towards the center may be in the best position to succumb to their arguments and therefore they frame briefs in such a way as to appeal to that center. It could also simply be the case that those in the center are more easily influenced since their votes naturally swing to one side or the other as they do not fit succinctly into the liberal conservative dichotomy. Instead, these justices react instinctively on a caseby case basis depending on the issue at stake. Either way less polarized members of the Court are more likely to behave in relation to group activity. As in other branches of government, players towards the center receive vast attention from lobbyists. Delving

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100 into brief language would further address this relationship. If groups are pandering in tentionally toward the center, we should see less polarizing language. Their energies will have greater effect should they focus language and arguments to the middle instead of the justices who most oppose their position. Though it was central to the model s, ideology is not the only factor at play. The empirical analysis showed strong support for the hypotheses put forth. Both a ccommodationist and separationist positions have efficacious influence to an extent. The total number of briefs filed has a greater effect than does the total number of groups that participate; the overall strength of the brief models when compared with the group models suggests that the arguments within the briefs are more important that the number of groups participating. And, t he effects of briefs are strongest in tangible cases. Perhaps they are phrased in a more nuanced way that is able to influence the justices directly. Or, because there are fewer groups on average participating in a single brief, the argument may be more specific to the participating groups goals. This also speaks to how justices are influenced. It appears that argument is stronger than public opinion on that argument as represented by total group participation. The evidence in this project also supports an important new finding; groups participate by filing amicus briefs for different reasons. Though we do see efficacy outcome in both case benefit types, this is not the only concern. Though this project does not specifically test for group maintenance, there must be other motivating factors for participation in order for it to be rational behavior One of these factors is likely the opportunity for credit claiming as a group maintenance strategy. Groups have evolved over time to encompass not only concr ete legislative goals but also ambitious symbolic

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101 goals. Conservative groups espouse rhetoric of morality, while liberal groups talk of separation as a necessary component to equality among traditions and those with secular perspective. These symbolic goals provide an opportunity for groups to participate without the necessity of immediate, tangible result. Instead, its base can be energized knowing that the group has been busy. Moens discussion of the institutionalization of the Christian Right (1994) s uggests that Evangelicals, perhaps even more so than other traditions or nonreligious groups, have even more work to do in terms of group maintenance. Their rhetoric can be alienating to the public, thus they struggle between keeping their base motivated and staying relevant. The significance of accommodation parameters in the interaction models lends credence to the efforts of conservative groups in Court in this vein specifically. These groups continue to seek a lower wall of separation and to push the Court to the right, and their lobbying efforts are paying off at least with respect for tangible cases. This success for conservatives is also evidence of the larger institutionalization of the movement. In the last 30 years, these groups have realized access in the judicial avenue and at the highest level. They have been able to maintain and grow their presence in Court, which requires significant financial resources. More recent conservative additions to the Court, such as Chief Justice Roberts, have yet to pay homage to conservative religious concerns. In the past two years, six cases involving largely symbolic religious concerns have been denied certiorari. If cases arent being heard, groups do not have the opportunity to assert influence. The Cour t did recently hear a tangible case regarding funding of religious schools. According to the Associated Press (2010) comments coming from the more conservative justices do

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102 not give much hope for an outcome in their favor. If the Court continues to refuse to hear t he symbolic cases that accommodation groups are so fond of participating in, perhaps efforts towards tangible cases can be increased. Otherwise, the focus may shift towards the process of getting a Writ of Certiorari. Within the religious tradition subset there is evidence to suggest that the traditions do not all use the court to the same end. Certain groups, such as Catholic and Jewish organizations, are more interested in tangible benefit from the court and therefore their participation is more geared toward cases in this sector. Other groups, mainly Evangelical organizations, are the ones seeking symbolic benefits above all else. The predicted probability plots not only show the relationship between group participation and outcome, but they also show that in this subset of cases, the Court is more likely to support a separation outcome even prior to the presence of any briefs. Separation groups can take comfort in this, for now, and there is more pressure to balance out conservative activity, than there actually is to change an outcome. Separationists are in a defensive position. However, if the conservative effort continues with the strength of influence its shown in this analysis, these positions could well reverse. The status quo with regards t o Jeffersons wall of separation may very well still land on the side of those who support it, but it seems that the conflict is never ending. Separation groups must push back against an effective conservative movement if they want to keep things this w ay. These results have shown each side with measurable success, if one side weakens, perhaps the other would be able to move forward.

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103 The frequency analysis of group collaboration shows that it occurs at higher levels in symbolic cases. This supports the use of symbolic briefs as group maintenance strategy than efficacious influence. More collaboration equals lower costs for groups and is an institutional maintenance strategy. The arguments in these briefs are not as much of a priority for the contribut ing groups. Instead, the participation is utilized as a credit claiming method to bring back to membership. One of the more unexpected results in these models is the lack of significance for Solicitor General briefs. In other studies, a brief filed by the Solicitor General --a repeat player --has been thought to be one of the more closely noted briefs by the Court because of legal experience and elevated status of the petitioner. At least one other study found further explanation for success. Bailey, Kamoie and Maltzman (2005) show that the policy preferences of both the Solicitor General and the Court in each case allow for a more nuanced interpretation of influence. Their general findings support prior conclusions, but they also find two specific instances where the Solicitor General is most successful. The first is when the Presidents policy position is closely aligned with the ideology of the Court; the second being when the Solicitor General is arguing a perspective that is outside of his own ideological preferences. This second characteristic may be notably absent in this case selection. It is conceivable that such passionate issues of religion and state are those in w hich the President dare not stray from his base. As groups have become entrenched in the political process, they have utilized the various political avenues to their own endnot necessarily as conventional wisdom might expect. Effectiveness does not rest solely upon a concrete victory. Instead, a

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104 group with a try, try again mentality is utilizing that strategy to appeal to the masses and even promote an underdog persona as it fundraises and collects or retains members. More cases arrive in the Court that deal with tangible outcome than do those who claim moral substance only. But once they are there, groups submit their resources differently according to their goals. Evangelical groups as part of the conservative movement are significantly more active in symbolic cases than they are in tangible cases. Not only are they ignoring a lack of efficacy in that area, their high levels of participation shows that they prefer participation in symbolic areas even though they are not influencing outcome. If con servatives continue focusing their efforts on benefits aside from tangible, and therefore participate in symbolic cases without regard to case outcome, there will be less of an effect on the Court from brief participation. Separationists will remain in a defensive position, and will continue to file in such a way as to cancel out the efforts of accommodationists. If, instead, conservative groups were to make a more concerted effort in tangible benefit cases, or even showed more concern for outcome in symbolic cases, they could encourage a shift in the Court that would require more offensive tactics from the opposition. The significant findings in this analysis should also change the conception of what it means for a group to be successful in Court. Winning is not the only benefit to be had. When and where collaboration occurs shows how strategic losing can be. When resources are shared, and networks strengthened, groups can minimize their responsibility while maximizing the benefit to their base. Those that exert time and effort in cases representing symbolic benefits collaborate together at higher levels, and

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105 in turn have lower levels of efficacious influence. Groups that seek tangible benefits through the court are less likely to collaborate, but have more of an influence on the outcome of the case.

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1 06 CHAPTER 6 QUALITATIVE ANALYSIS: A CROSSSECTION OF FOUR GROUPS Case Studies Quantitative analysis of participation in the Courts has supported hypotheses regarding efficacy and collaboration. Varying g roups and traditions have divergent goals for filing Amicus Curiae Briefs. In this chapter, I take a closer look at some of the most active groups and their political styles and strategies in order to synthesize them with the empirical results. While the frequency distributions and logit models show trends and levels of success that groups are having, a discourse on groups in various religious traditions can give a deeper understanding of why groups are choosing this avenue to participate politically, and how much of their resources they are funneling into judicial strategy. The groups chosen were among the most active in the courts and made information about their participation public. The religious interest groups examined are the American Jewish Congres s(AJC), the United States Conference of Catholic Bishops(USCCB), the Christian Legal Society(CLS) and the Baptist Joint Committee(BJC). I discuss each groups political activism historically, focusing on their activity in judicial politics by looking at s ome of they cases they have each prioritized either as a litigant, or by filing an amicus curiae brief. I also collect group specific data about their court activity and use this as another avenue to compare the religious traditions. These case studies il luminate some of the differences and similarities of group activism based on religious tradition. They also give deeper insight into the operations of religious interest groups.

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107 The strategies of groups in the Court foster their larger political agendas. Some groups have formed solely to work in the judicial arena; others work across the political spectrum. Based on empirical results, we expect to see different goals with activity in the two case benefit types. Groups seek to provide both types of bene fits to their constituencies, but comparison of activity across traditions suggests that certain traditions prioritize one benefit type over the other. Delving more deeply into a select few groups should shed light on strategy, efficacy, and benefit prior itization. I begin by discussing each groups history and purpose (as they themselves have described in their literature), their strategy in the larger political arena and specifically in the courts, then conclude with a discussion of the parallels and di sparities of group activity as they relate to efficacy and benefit type. Group Overviews American Jewish Congress The American Jewish Congress is almost a century old. It was the most active interest group in my analysis filing 49 amicus curiae briefs i n 48 different cases. Founded in 1917, the group claims to be the first religious group to seek the Courts to advance their agenda. Membership in the organization does require a payment; levels vary from a $50 membership to $1000 level membership. Donati ons of any amount are also welcomed. Supporters can subscribe to email updates without making a donation or joining as an official member. The purpose of the organization, according to a statement on their website, is to serve as the attorney general for Jewish people. The site includes links to different issue areas where the organization is most active. The most important current project listed is security and safety for the people of Israel. Also among the top projects is a

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108 Religious Freedom to pic. Clicking this link takes the reader to a set of press releases detailing activity in this general area. The most recent release listed is a topical summary of law as it relates to religion in public schools, published in August of 2009. AJC authors several publications. In order to subscribe, one must be a member of the organization though subscriptions fees are separate. Their monthly publication is a magazine entitled Congress Monthly. AJC also puts forth a quarterly publication, Judaism: A Journal of Jewish Life & Thought. The Website also has call to action alerts, giving direct links to contact legislators or other venues with detailed descriptions of each issue or problem. One of the most useful informational resources on the website was the Annual Report. This shed light into the strategies of the organizations political endeavors. In 2009, AJC was one of Bernie Madoffs victims. The organization had to let go employees and cut costs to in order recover. The report states that they are now looking to expand. One of the longest sections of the report is a description of the activity with regards to religious freedom and liberty. AJC was involved in several circuit court cases during 2009, and their brief was quoted in the decision of one of those cases. AJC also filed a brief at the Supreme Court level with regards to a case the Court is set to hear in April 2010. AJC also specifically mentions religious discrimination in hiring as an ongoing problem they seek to address in the future with regards to religious freedom. They closed report with a call for money The past year was a time for consolidating and reorganizing. This coming year must be a time of vigorous growth...But that can happen only if you contribute generously as this year comes to a close. We are counting on you.

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109 AJC clearly utilizes strategies across the board, lobbying all levels of government from local to international. They are also a founding member of the Coalition To Defend Free Speech. Other members Amer ican Values, National Assembly of the Bahais of the U.S The Becket Fund for Religious Liberty, Democracy Coalition Project, Freedom House, International Quranic Center and The Rutherford Institute. Collaboration is another strategy utilized by the group. United States Conference of Catholic Bishops The United States Conference of Catholic Bishops is, not surprisingly, a Catholic organization. Official members of this organization are the hierarchy of the Catholic church. Its clear from their website though that the benefits are meant to be for the Catholic body as a whole as opposed to individual members. History of this organization dates back to 1917 like the AJC, though the group has undergone name changes regularly as counterparts merged. According to the USCCB website: The mission of the USCCB is to support the ministr y of bishops with an emphasis on evangelization, by which the bishops exercise in a communal and collegial manner certain pastoral functions entrusted to them by the Lord Jesus of sanctifying, teaching, and governing and that they seek to act collaborati vely and consistently on vital issues. The emphasis on pastoral functions is demonstrated throughout the website by the availability of resources to the church body. The organization boasts over 50 departments and it provides a range of services from bib le studies, to general counsel, to publications and media. Information available through USCCB is somewhat overwhelming, although the group is highly organized in their diversification. The organization also has grassroots level leaders throughout the sta tes.

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110 Contrary to some of the other organizations focused upon in this chapter, the USCCB does not identify itself a primarily a political organization. However, that clearly has not stopped the leadership from high levels of activism is a myriad of issues Headlines on the main page of the site deal with issues such as Embryonic Stem Cell funding, abortion and unemployment. A department entitled Government Relations is that which represents USCCB politically. In addition, politically motiviated followers are directed to a website called Faithful Citizenship where USCCB provides directions for political dos & donts and responsibility, etc. Followers can subscribe to the Legistlative Action Center to join a network where they receive action alert s and can learn about specific campaigns. A downloadable booklet details legislative priorities for the coming year; the first issue is prolife, followed by immigration and international justice issues. Within the Governmental Relation departments, there is no direct link or discussion of the groups work specific to the judiciary or Supreme Court. However, when using the sites search feature, press releases of amicus curiae briefs filed were available. The primary avenue of participation seems to be more legislatively focused. The department provides direct links to Congress and the White House, but not for the judiciary. The priorities booklet does not include discussion of Court strategy. Though collaboration is mentioned as part of the mission statement, there are no prominent displays of partnership across tradition for any of the prioritized issues. Christian Legal Society The Christian Legal Society was the most active Evangelical Protestant affiliated group in my analysis. CLS filed 25 briefs, but is also much younger than the other three organizations, it was founded in 1991. This makes sense considering that the

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111 Evangelical wing of Protestant traditions did not develop identifiably until the latter half of the 20th century. The organi zation currently has chapters in 26 different states. CLS is a society formed of legal professionals and students. It does not exclude nonlegal supporters from membership, but is clearly aimed at those that are. Membership cost ranges from $15$200 annual ly. Law students have the least expensive membership levels, and attorneys and law professors are at the higher end. There are many categories of membership in between. Members must sign a statement of faith, which includes a belief in the trinity, a beli ef in Jesus Christ for salvation and a belief in the bible as the inspired word of God. Membership benefits include attorney referrals, corporate discounts, advertising, voting privileges, receipt of publication |Christian Lawyer, and client referrals. T he mission of the organization is To inspire, encourage, and equip lawyers and law students, both individually and in community, to proclaim, love and serve Jesus Christ through the study and practice of law, the provision of legal assistance to the poor, and the defense of religious freedom & sanctity of human life. They have four primary areas of ministry, attorneys, law students, advocacy and legal aid. The advocacy area is run by an arm of CLS called the Center for Law and Religious Freedom. The CL S is currently the petitioner in the U.S. Supreme Court case mentioned in the introduction of this project. The case was brought forth by a chapter of the organization on a Law School campus that was denied recognition as a group because of the membership requirement to sign the CLS statement of faith. In addition to litigation, CLS is a frequent filer of amicus curiae briefs. The areas of litigation in which

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112 they participate are the protection of religious student organizations against misuse of nondisc rimination rules, protection of faithbased initiatives from discrimination from government, protection of healthcare professionals against doing things they are not comfortable with (particularly, abortion), and protection of religious schools from misus e of nondiscrimination rules. Unlike the other two organizations, the advocacy arm of CLS describes test case litigation as part of their primary purpose. They describe several unsettled legal areas including Constitutional protection for religious org anizations from the governments application of religion and sexual orientation nondiscrimination rules, discrimination against religion in funding context, and the protection of consciences of prolife health care providers. CLS political participation is focused at the judicial arm of government. This contrasts it significantly with the other case studies. Its activity in this branch seems to be at even greater levels, perhaps because it is not spread as widely. Like the USCCB, CLS does not to specif ically discuss collaboration on their website. They do file briefs with other groups, but it is not an aspect of their participation that they seem to value as highly as others. Baptist Joint Committee for Religious Liberty The Baptist Joint Committee i s a Protestant organization that specifically represents Mainline Protestant Baptist Denominations. This set of Baptist denominations is the more liberal and no longer includes Evangelical, conservative denominations such as the Southern Baptist Convention though it did earlier in its history. The organization was founded in 1936 under the name Committee for Public Relations and has gone through quite a bit of turmoil in the past 75 years. Mainline and

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113 Evangelical Protestant churches diverged paths in the 80s and the BJC was not immune to this unrest. BJC was involved with 29 briefs and cases in this study. The committee does not handle membership in the same way that AJC does. The website provides for donations in any amount, and at any frequency. Suppor ters can subscribe to email updates, follow the organization in various social networks (facebook, twitter, blogger etcetera) but official membership does not seem to be provided for. The purpose of the BJC is to Keep Church and State Separate. More sp ecifically: The BJC's mission is to defend and extend Godgiven religious liberty for all, furthering the Baptist heritage that champions the principle that religion must be freely exercised, neither advanced nor inhibited by government. The organization specifies several issue areas within the separation arena on which they hone in, such as free exercise, church electioneering, religious displays, civil religious, government funding, public prayer, public schools and political discourse. The organization does revolve around church and state issues, which is different than the AJC. They describe their purposes as education and advocacy. They also describe the importance of working in coalition with other organizations. In general, the website provides detailed information similar to the USCCB site. There are sections on each of the aforementioned action areas where the BJCs interpretation of law is asserted. The advocacy section of the site gives very detailed instructions to supporters on how they can reach congressmen, what steps they can take in preparing a letter or making a phone call or office visit.

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114 Another section of the website describes BJCs participation in the Courts. The organization again asserts their interpretation of the First Amendment and also describes BJC as alertly monitoring the courts for related litigation. BJC does not litigate and their participation is limited to writing amicus briefs or working in concert with other organizations who do so. They file briefs in any U.S. Supreme Court case dealing with religious liberty and decide involvement in other lawsuits on a caseby case basis. BJC seeks influence at every level of government. Their involvement in the legislature even details directions to supporters on how to b e effective. Recently, BJC has issued statements to the Obama administration with regards to FaithBased initiatives. In the judiciary, the organization files one brief after the other, asserting their belief in both a separation of church and state, and freedom of religious expression. Groups, Benefit Typologies and Efficacy Each of these groups is similar in that they are highly active and established. The differences between the groups should shed light on the broader questions of this project in regar ds to benefits sought and overall efficacy. Based on the hypotheses, group involvement should be maximized in cases where the outcome is in the same direction as the groups brief if the group goals are primarily focused around a tangible benefit. However if symbolic benefit is as important to a group, efficacy will not necessary be based on case outcome. The empirical analysis showed support for all hypotheses and confirmed that traditions behave according to their own interests. Combined, the four groups filed cases in just under half of the total cases in the sample for this project, 55 cases. There was a good deal of overlap between groups: all 4 of these groups filed in 9% of these 55 cases, 3 and 2 groups each filed in 29% of these cases, and in onl y 33% of these cases was just one of the four case study groups

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115 a participant. The figure below shows the overlap of briefs per case in chronological order. The proliferation of briefs can be seen as the cluster on the righthand side. Figure 61. Case Study Group Participation Overlap by Citation. 2/3 of the time, where one of these groups filed, at least one more followed. In the cases where only one of these groups filed, other groups not included in the case study did also file. So in none of these cases was the filing group completely alone. Also, the last of these individual appearances happened in 1997. Groups clearly take cues from each other more now than ever before. Only 5 of the cases in which some of these groups were participants were sym bolic cases. AJC participated in 47 cases total, USCCB in 22, BJC in 26 and CLS in 23.8 The following figure shows each groups participation in tangible versus symbolic cases. 8 The difference in briefs reported in the table reporting top group participation (Chapter 3) is that in some cases, groups filed more than one brief in the same case.

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116 Figure 62. Group Participation by Benefit Case Type. One of the more surpr ising findings in this chart is that AJC has the highest level of participation in symbolic cases. Based on the empirical results, we would expect CLS to have more of an interest in this case type. BJC has not invested in any symbolic cases, and the USCCB only filed in one of these cases. But, CLS is a newer organization and many of the symbolic cases appeared in the Supreme Court before CLS was created. Figure 63. Percentage Case Won per Benefit Category.

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117 The final chart shows group efficacy by benefi t type. Raw percentages for each of these highly active groups do show efficacy. In each scenario, efficacy occurs in tangible cases, just as was found in the empirical analysis. CLS, the evangelical group, has experienced lower levels of efficacy. This could be because it is the newer of the groups, or because as an evangelical group, efficacy is not the goal. CLS was also the smallest case sample. When groups are seeking the court in regards to a tangible benefit, they are more likely to win and thus it seems likely that winning is the goal. When groups are seeking the court in regards to a symbolic benefit, they are less likely to win and thus its seems more likely that participation for credit claiming, or group maintenance is the goal. Discussion A s interests seeking influence upon the Court, groups have their work cut out for them. Based on empirical evidence and the case studies discussed here, it does appear that symbolic benefits are being noted by organizations and their leaders for reasons as ide from efficacy. Even one of the most active groups, CLS, has a losing record in the Supreme Court.

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118 CHAPTER 7 CONCLUSION Major Findings The power of the Court in the policy process is greater than ever before. As such, judicial politics research larg ely revolves around what kind of factors lie behind the decisions that are made. Interest group scholars examine participation of groups in the political process and how effective the efforts are in order to understand the motivations behind this behavior. This project has brought together these two vast literatures to look at group efficacy within the Supreme Court. Specifically, it uses cases within the Religious Clause subset to shed light on whether efficacy and case outcome are the major factor behind group participation. Groups can participate in the judicial arena in a variety of ways beginning with the nomination process, and including agendasetting activity, filing suit, and also engaging with the justices through authoring amicus curiae briefs. These briefs can bring forth new arguments and bolster evidence on one side or the other or they can reiterate or reframe legal provisions asserted by the litigants. Briefs can also be an indication to justices of public salience. This projects uses new data regarding the number of briefs and the number of groups on either side of a case to assess levels of efficacy. With almost 700 briefs filed in just over 100 cases, and an easily discernable trend of increase over time in these numbers, it is clear that groups are utilizing the opportunity of participation via briefs. Prior research points to briefs as significant with regards to case outcome and thus makes the assumption that this is the main factor behind filing. I argue that there are other impor tant factors behind filing for groups, and find empirical support for my hypotheses. Interest group theory as was based on an understanding of

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119 Iron Triangles does not explain participation in the Court process. Instead, the more inclusive Issue Network li terature suggests that group participation can be informational, and can be seeking more than just a policy outcome. The subset of cases used in the analysis are broken into tangible and symbolic benefit categories. Through originally collected data and a multimethodological approach, I have found significant support that the benefit type of a given case is directly related to a desire for efficacy. I find that in tangible benefit scenarios, efficacious influence is found, and in symbolic cases, group part icipation is not linked to outcome. The success of an interest group is more than any one win or loss on a certain policy issue. Each organization has goals that may or may not focus on tangible benefits in the way that judicial politics has primarily understood case outcome. Furthermore, the way groups participate and how they work with each other can be better understood when issues are examined on a tangiblesymbolic dichotomy. Group collaboration minimizes resources and expense, and can be very rewarding for participants who want to show their membership just how active they are. Groups that participate in cases with a more symbolic bent are less concerned with the actual outcome of the case, and are also more likely to collaborate with other groups. Groups that seek primarily tangible benefits are efficacious and seek policy outcome as a reward for their efforts. Collaboration means compromise but it also helps groups conserve their limited resources, so when a tangible resource is not being sought, it makes sense that a group is less likely to expend. The substantive area of this project delves into the rich history of religious political groups in action in the United States political process. These groups are discernable in

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120 every branch of gover nment, and every step of the political process. Historically, participation has ebbed and flowed as a reflection of how each tradition viewed their place in the world, but the major traditions have all landed in places of visibility that include the judic ial arena. Translating the priorities of these traditions into how and where efficacious participation exists sheds further light on motivations behind participation. Using the Religious Clause subset is a suitable background for such a study because these cases typically affect traditions across the board. All traditions have matured over time in how they participate and this is evident in how they utilize resources. Within the context of religion clause cases, where we see systematic participation by d iverse religious traditions, I find evidence that traditions with more tangible benefits at stake, such as Catholics and parochial aid, are significantly more involved in those cases that would have a direct effect on them. The relationship of Catholic gr oup participation to case type was by far the strongest. Jewish and Mainline groups also trended to participate more in tangible cases. Evangelical groups were the only subset where participation occurs at higher levels in symbolic cases. The empirical an alysis supports prior judicial research on the attitudinal model. Ideology of the justices is the most influential predictor of case outcome. The religion subset is a highly charged one, and it is not surprising that predisposition is so strongly linked to which side of the case a justice lends his weight. But there is additional evidence to show that briefs have import as well. More intriguing is the evidence presented that shows median justices are more susceptible to the influence of such briefs. Though this evidence is not as ideally rigorous, it shows that in general, a justice

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121 whose ideological distance is closer to the median is more likely to be influenced by the brief. The project also empirically contrasts participation by number of briefs and by number of groups. The total number of briefs filed shows a stronger influence than does the number of groups. This suggests that the arguments within the briefs make more difference in outcome than do the sheer number of them. Furthermore, that a nua nced argument matters more to justices than public salience. Both total groups and total briefs filed on each side of the argument are significant predictors of case outcome. This is the true on both the liberal and conservative side of the argument. Once case type is controlled for, there is a difference between liberal/separation and the conservative/accommodation sides. Conservative groups show significantly different levels of efficacy between the tangible and symbolic benefit case types. This sugg ests that conservative groups are truly taking advantage of the use of symbolic cases as opportunities for participation, and for such factors as credit claiming or group maintenance strategy more so than liberal groups. The position of the Court in this i ssue area places liberal groups in the defensive position and thus requires more effort by Conservatives should they wish to change the status quo. The reticence of the recent Court to take up the symbolic cases of most interest to these Conservative groups does not help their cause. The final empirical finding of interest is that Solicitor General control variables were not significant. In past research, the Solicitor General has been cited as a repeat player with significant influence on the Court. That is not the case in this subset. One account fro this result is that the Presidents policy position was primarily at odds with

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122 the Court in this issue area. Or perhaps the President also was not willing to compromise in this area. The final chapter of the analysis looks specifically at individual groups who have played a large role within the substantive area of interest to this project. I looked at the behavior of one group in each of the major religious traditions. This qualitative overview supports the empirical findings in the project. But not surprisingly, groups also do not publicly discuss either an intentional losing record, or the idea that winning or losing is not the goal. Instead, they make all participation highly visible to their membership. Group success in the Court cannot be defined solely in terms of efficacy of which judicial politics largely revolves around. Applying group theory, specifically issue networks and benefit structures, gives a broader understanding of when efficacy is a priority to groups. This project adds to the body of religious literature by shedding light on the evolution of separation of church and state, as the Court has interpreted it. Winning is more inclusive than the current characterization of efficacy Future Research This project has glimpsed into the effect of collaboration between groups in the courts. Still, I would seek to examine the intricacies of these coalitions. Highpublicity court cases bring together strange bedfellows, do these groups st ay together for a single case, or do they reconvene whenever the need arises? The language in each brief also provides an opportunity for analysis of group consistency. How much compromise occurs when briefs are a collaborative effort. Are there diminis hing returns for groups who work with too many different groups and perspectives? Some of these organizations have been around for decades, two of the case studies in this project have lasted almost a century. Does their experience have an impact?

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123 It wou ld also be interesting to test these hypotheses at lower court levels. Would the higher number of available cases for participation result in more participation from groups? Or, would they be less attended because the benefit would not be as far reaching regardless if it were symbolic or tangible. The relationship between ideological distance and brief influence is deserving of further analysis as well. Which way does this relationship go? Do groups intentionally write to the center, knowing that just ice is the most likely to be swayed? Or, do their passionate arguments only touch those who are already considering a move? Separation of church and state is a boundary that many Americans take for granted. It is clear based on the very existence of these organizations that it does not have as much of a hold as assumed. As divisive social issues evolve, case law is continually reinterpreted and groups will keep themselves busy trying to assert their interpretations every step of the way.

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124 APPENDIX GROUP CODING The appendix includes each group that filed a brief in one of the cases in this analysis. The four major religious tradition categories are listed first, followed by the categories that were not used in the empirical analysis. Catholic American C atholic Correctional Chaplains Association American Slovenian Catholic Union Ancient Order of Hibernians in America, Inc. Archdiocese of New York Association of Catholic Colleges & Universities Association of Jesuit Colleges and Universities Bureau o f Catholic Indian Missions Catholic Bishop of Chicago Catholic Center Catholic Central Union of America Catholic Charities, U.S.A. Catholic Health Association of the United States Catholic League for Religious and Civil Rights Catholic University of America Catholics for a Free Choice Croation Catholic Union of the USA Greek Catholic Union of the USA Hungarian Catholic League of America, Inc. Knights of Columbus Lithuanian Roman Catholic Alliance of America National Catholic Educational Associ ation National Coalition of American Nuns Order of Sons of Italy in America Parish Hall School, Inc Polish American Congress, Inc. Polish Roman Catholic Union in America Slovak Catholic Federation of America Solidarity Center for Law & Justice Unio n Saint Jean Baptiste United States Catholic Conference Your Catholic Voice Foundation Evangelical Protestant Adventist Chaplaincy Ministries American Association of Christian Schools American Center for Law & Justice American Family Association Center for Law & Policy American Liberties Institute Associate Reformed Presbyterian Church Association for Public Justice Association of Christian Schools International Association of Southern Baptist Colleges & Schools Azusa Pacific University Bap tist General Convention of Texas Bay High School Bible Study Brigham Young University Bronx Household of Faith Campus Crusade Capitol Hill Prayer Alert Foundation Center for Law and Religious Freedom of the Christian Legal Society Center for Public Justice Child Evangelism Fellowship, Inc Christian Advocates Serving

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125 Evangelism Christian Legal Society Christian Life Commission of the Southern Baptist Convention Christians Reviving America's Values Coalition for Religious Liberty Committee of C oncerned Citizens Concerned Women for America Council on Religious Freedom Department of Education Services of the Church of the Nazarene Eagle Forum Education & Legal Defense Fund Ethics & Religious Liberty Commission of the Southern Baptist Commissi on Evangelical Council for Financial Accountability Evangelical Covenant Church Evangelical Lutheran Church in America Faith and Action Family Research Council Fellowship of Christian Atheletes Fellowship of Legislative Chaplains Focus on the Famil y Foundation for Moral Law Freedom Council General Conference of Seventh day Adventists Greater Minneapolis Association of Evangelicals Holy Spirit Association for the Unification of World Christianity Illinois Family Institute Independent Baptist C hurches of America Indiana Family Institute Insight for Living Institute for Religion and Polity Institute in Basic Life Principles International Reapers Foundation Inter Varsity Christian Fellowship of the U.S.A. Liberty Counsel Liberty Legal Inst itute Loma Linda University Lutheran Church in America Lutheran Church Missouri Synod Massachusetts Family Institute Master's Communication Mennonite Central Committee Minnesota Family Council Moral Majority, Inc. National Association of Evangelic als National Clergy Council National Legal Christian Foundation National Union for Christian Schools New Jersey Family Policy Council North Carolina Family Policy Council Northstar Legal Center Northwest Religious Liberty Association Ohio Conferenc e of Seventh Day Adventists Oklahoma Family Policy Council Oregon Center for Family Policy Pacific Justice Institute Palmetto Family Council Pennsylvania Family Institute Prison Fellowship Reformed Church in America Reorganized Church of Jesus Chri st of Latter Day Saints Rocky Mountain Family Council Rocky Mountain Family Legal Foundation Rutherford Institute Seventh Day Adventist Church State Council Southern Center for Law & Ethics Thomas More Law Center Wallbuilders, Inc

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126 Jewish Agud ath Israel of America Aleph Institute American Jewish Committee American Jewish Congress Anti Defamation League Avi Chai Foundation B'nai B'rith Women, Inc. Central Conference of American Rabbis Chabad House of Western Michigan, Inc. Chabad of Pit tsburgh Chabad Lubavitch of Broward & Palm Beach Counties Chabad Lubavitch of Georgia Chabad Lubavitch of Vermont Commission on Social Action of Reform Judaism Congregation Lubavitch of Cincinnati, OH Connecticut Jewish Community Relations Council H adassah Jewish Council for Public Affairs Jewish Labor Committee Jewish Peace Fellowship and Fellowship of Reconciliation Jewish Prisoner Services International Jewish War Veterans of the U.S.A. Jews for Animal Rights Lubavitch of Indiana, Inc Nati onal Community Relations Advisory Council National Council of Jewish Women National Jewish Commission on Law and Public Affairs (COLPA) National Jewish Community Relations Advisory Board Orthodox Church in America Rabbinical Alliance of America Synag ogue Council of America Torah Umesorah National Society for Hebrew Day Schools Union for Reform Judaism Union of American Hebrew Congregations Union of Orthodox Jewish Congregations of America United Synagogue of America United Synagogue of Conservat ive Judaism Women's Zionist Organization of America Mainline Protestant A.M.E. Zion Church Antiochian Orthodox Christian Archdiocese of North America Baptist Joint Committee Churches of God in Ohio Concerned Presbyterians, Inc. Connecticut Counc il of Churches Covenant of Unitarian Universalist Pagans Cumberland Presbyterian Church Division for College and University Services of the American Lutheran Church Episcopal Diocese of New York and the Church of the Holy Apostles Episcopal Women's Ca ucus First Church of Christ Free Methodist Church of North America Greek Orthodox Archdiocesse of North and South America Hungarian Reformed Church in America J.M. Dawson Institute of Church State Studies Laurelhurst Presbyterian Church, Inc. Luther an Council in the USA Lutheran Education Association

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127 National Association of Episcopal Schools National Association of Schools and Colleges of the United Methodist Church National Council of the Churches of Christ in the USA National Institute for Cam pus Ministry North Park Theological Seminary Presbyterian Church in the United States of America Protestant Episcopal Church Protestants and Other Americans United for Separation of Church and State State Convention of Baptists in Ohio Unitarian Fell owship for Social Justice Unitarian Universalist Association United Church of Christ United Methodist Church Worldwide Church of God Other American Muslim Council Arsha Vidya Pitham Arya Samaj of Michigan Church of Jesus Christ of Latter Day Sa ints Council of Masajid Council on Spiritual Practices General Convention of Swedenborgian Churches Gujarat Cultural Association, Inc. Gujurati Mandel Hindu American Foundation Hindu Cultural Society, Inc Hindu International Council Against Defamat ion Hindu Society of Colorado Hindu University of America, Inc. India Association of Greater Hartford India Cultural Society of New Jersey International Society for Krishna Consciousness of California, Inc. Islamic Center of Washington, D.C. Islamic Federation Islamic Society of North America Minaret of Freedom Institute Muslim World League and National Islamic Alliance National Committee for Amish Religious Freedom Native American Church of Colorado Native American Church of Navajoland, Inc. Native American Church of North America Native American Church of Oklahoma Native American Church of South Dakota Native American Church of the Omaha Tribe Native American Church of Winnebago, Nebraska Navya Shastra Saiva Siddhanta Church Sikh Ameri can Legal Defense and Education Fund Sikh Coalition Soka Gakkai International, USA Watchtower Bible and Tract Society of New York, Inc. Atheist/Humanist American Atheists American Ethical Union American Humanist Association Association of Humani stic Rabbies Atheist Alliance International Atheist Law Center Council for [Democratic and] Secular Humanism

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128 Equal Partners in Faith Humanist Institute Humanist Society HUUmanists Institute for Humanist Studies International Academy of Humanism I nternational Humanist and Ethical Union Internet Infidels Madalyn Murray O'Hair and Society of Separationists, Inc. Skeptics Society Society of Separationists Ecumenical American Association of Bible Colleges American Legion Becket Fund for Reli gious Liberty Central Committee for Conscientious Objectors Coalition for the Free Exercise of Religion Common Good Legal Defense Fund Council for Christian Colleges & Universities Interfaith Alliance Interfaith Freedom Foundation Interfaith Religio us Liberty Foundation International Academy for Freedom of Religion and Belief International Christian Accrediting Association Lord's Day Alliance of the United States Queens Federation of Churches Society for Humanistic Judaism Transnational Associa tion of Christian Schools Secular I Have A Dream Foundation of Washington D.C. A Brighter Choice Scholarships (Albany, NY) Advocates for Children of New York, Inc. Advocates for Faith & Freedom AFL CIO Alabama Civil Liberties Union AlexanderGr aham Bell Association for the Deaf Alliance for Choice in Education (Denver, CO) American Association of Presidents of Independent Colleges and Universities American Association of School Administrators American Association of University Professors and the American Council on Education American Association of University Women American Bar Association American Booksellers Association American Civil Liberties Foundation of Vermont American Civil Liberties Union American Correctional Chaplains Associ ation American Council on Education American Education Coalition American Education Reform Foundation American Federation of Teachers American Fund for Alternatives to Animal Research American Humane Association American Jail Association American L egislative Exchange Council American Planning Association American Private Education

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129 American Professional Society on the Abuse of Children American Psychological Association American Public Health Association American Society for the Prevention of C ruelty to Animals American Society of Biological Chemists American Society of Zoologists American Vocational Association American Arab Anti Discrimination Committee Americans for Religious Liberty Americans United for the Separation of Church and Sta te Animal Legal Defense Fund, Inc. Area Independent Development Corporation Arizona Civil Liberties Union Arizona Council for Academic Private Education Arizona Scholarship Fund Arizona School Boards Association Arizona School Choice Trust Ashbrook Center for Public Affairs Associated Industries of Vermont Association for Supervision and Curriculum Development Association for the Coordination of University Religious Affairs Association of American Colleges Association of American Universities Association of Metropolitan School Districts Association of State Correctional Administrators Association on American Indian Affairs Black Alliance for Educational Options Black Women's Agenda Board of Education of Alpine School District Board of Ed ucation of the City of New York Brennan Center for Justice Buckeye Association of School Administrators California Alliance for Public Schools California Parents for Educational Choice California School Boards Association Carpenters' Union Local 1040 Carthage Independent School District Cato Institute Center for Constitutional Studies Center for Education Reform Center for Equal Opportunity Center for Individual Freedom Center for Judicial Studies Center for Law and Education Center for Law a nd Social Policy CEO America Chamber of Commerce Chester County Historic Preservation Network Children First America Children's Educational Opportunities Children's Healthcare is a Legal Duty, Inc. Children's Scholarship Fund Arkansas Children's Sc holarship Fund Baltimore, MD Children's Scholarship Fund Chattanooga, TN Children's Scholarship Fund Kansas City, MO Children's Scholarship Fund Maine Children's Scholarship Fund Portland, OR Christian College Coalition Citizens for Animals Citizens for Educational Freedom Citizens United for the Rehabilitation of Errants City of Erie, Pennsylvania City of New York City of Philadelphia City of Pittsburgh City of Warren, Michigan City of Williams, Arizona Civil Liberties Union of Massachusetts Claremont Institute Center for Constitutional Jurisprudence

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130 Clarendon Foundation Coalition for Local Sovereignty Coalition for Parental Choice in Education Coalition of Rural and Appalachian Schools Colorado Association of School Boards Colorado Mi ning Association Committee for the Well Being of Kiryas Joel Committee on Openness in Science Committee to Defend Reproductive Rights Commonwealth Foundation of Pennsylvania Commonwealth of the Northern Mariana Islands Confederated Salish and Kootena i Tribes of Montana Connecticut Civil Liberties Union Connecticut Council for American Private Education Connecticut Liberties Union Foundation Connecticut Retail Merchants Association Connecticut Small Business Federation Connecticut State Conferenc e of the NAACP Conservative Legal Defense and Education Fund Council for American Private Education Council for the Advancement of Small Colleges Council of State Governments Counsel for Minnesota Association of School Administrators County of Los An geles Creighton School of Law Crescent City Del Norte Chamber of Commerce DC Parents for School Choice Deaf Community Center, Inc. Defenders of Property Rights Del Norte Taxpayers League Dilley Independent School District East Harlem Block Schools Educate New Mexico Education Excellence Coalition Education Freedom Fund Education Voucher Institute Educational CHOICE Charitable Trust Electronic Privacy Information Center Employment Law Center of the Legal Aid Society of San Francisco Equal Em ployment Advisory Council Equal Rights Advocates Ethics and Public Policy Center Excellent Education for Everyone Fairness Foundation Farm Animal Reform Movement Farm Sanctuary Federation of American Societies for Experimental Biology Federation of Boston Community Schools Federation of Jain Associations in North America First Liberty Institute Florida Council of Independent Schools Florida Public School Teachers Floridians for School Choice Foundation for Animal Rights Advocacy Fraternal Ord er of Eagles Free Congress Foundation Free Congress Research and Education Foundation Free Speech Advocates Free Speech Defense and Education Fund, Inc. Freedom from Religion Foundation Goldwater Institute Greater Educational Opportunities Foundatio n Guardsman Gun Owners of America, Inc. Harvard University Helping Educate Responsible, Outstanding, and Enlightened Students, (Jacksonville, FL) Hispanic Council for Reform and Educational Options Home School Legal Defense

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131 Association Hoopa Tribe of California Hope for Cleveland's Children Horace Mann League Howonquet Community Association Humane Society of the United States Illinois Coalition for Parental Choice Illinois Coalition of Nonpublic Schools In Defense of Animals Independent Scho ol Association of the Central States Independent Voices for Better Education Indiana Non Public Education Association Institute for Animal Rights Law Institute for Justice Institute for Youth Advocacy Institute of Women Today Institute on Religion a nd Public Policy Intercollegiate Studies Institute International Association of Machinists and Aerospace Workers international City Management Association International City County Management Association International Commission on Freedom of Conscien ce International Municipal Lawyers Association International Society for Animal Rights Iraan sheffield Independent School District James Madison Institute John Howard Association Joni and Friends Judicial Watch, Inc. Karuk Tribe of California Kent ucky Non Public Schools Commission Key Club International Kids First Scholarship Fund Kiowa Chapter of the Native American Church of Oklahoma Kiwanis International Kootenai Tribe of Idaho Lambda Legal Defense and Education Fund Landmark Legal Found ation Lawyer's Selective Service Panel of San Francisco League of United Latin American Citizens Legal Foundation of America Lincoln Institute for Research and Education Long Island Conference of Religious Elementary and Secondary School Administrator s Lorena Independent School District Los Angelos Selective Service Law Panel Madisonville Independent School District Magazine Publishers of America, Inc. Maine School Choice Coalition Maryland Council for American Private Education Masschusetts Soc iety for the Prevention of Cruelty to Animals McCamey Independent School District Memphis Opportunities Scholarship Trust Michigan Association of Non public Schools Michigan Association of School Boards Michigan Counsel About Parochaid Milton and Ros e Friedman Foundation Milwaukee Federation of Independent Community Schools Minnesota Association of School Business Officials Minnesota Association of Secondary School Principals Minnesota Business Partnership Minnesota Civil Liberties Union Minneso ta Independent School Forum Minnesota School Boards Association Minusscule Missouri Coalition for Public Education and Religious Liberty

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132 Monroe County New York Public Education and Religious Liberty Montana Coal Council Mountain States Legal Foundati on Multistate Tax Commission Municipal Art Society NAACP National Abortion Rights Action League National Academy of Sciences National Alliance of Preservation Commissions National Associ ation of Elementary School Principals National Association fo r the Legal Support of Alternative Schools National Association of Counties National Association of Elementary School Principals National Association of Independent Schools National Association of Laymen National Association of Secondary School Princi pals National Association of State Universities and Land Grant Colleges National Audio Visual Association, Inc. National Center for Science Education National Coalition for Public Education and Religious Liberty National Coalition of Alternative Commu nity Schools National Committee on Public Education and Religious Liberty National Conference of State Legislatures National Conference of Yeshiva Principles National Congress of American Indians National Congress of Parents and Teachers National Co uncil of Independent Colleges and Universities National Education Association National Emergency Civil Liberties Committee National Family Planning & Reproductive Health Association National Indian Youth Council, Inc. National League of Cities Nation al Legal Foundation National Major Gang Task Force National Organization for Women National Prison Project of the ACLU National PTA National Retail Merchants Association National Right to Life Committee National Right to Work Legal Defense Foundatio n National School Board Association National Science Teachers Association National Sheriffs' Association National Taxpayers Union National Trust for Historic Preservation in the United States National Women's Health Network National Women's Politica l Caucus Nebraska Council for American Private Education Nevada Manufacturers Association Nevada Mining Association New Coalition for Social and Economic Change New Community School New Jersey Animal Rights Alliance New York Civil Liberties Union N ew York Committee for Public Education and Religious Liberty New York County Lawyers Association Committee on Supreme Court New York State Afl Cio New York State Association of Independent Schools New York State School Boards Association New York Stat e Sheriffs' Association New York State Teachers Newton Independent School District North American Association of Wardens and Superintendents Northwest Women's Law Center Now Legal Defense and Education Fund

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133 Official Committee of Tort Litigants, In re Catholic Bishop of Spokane Ohio Association for Public Education and Religious Liberty Ohio Association of School Business Officials Ohio Association of Secondary School Administrators Ohio Coalition for Equity and Adequacy of School Funding Ohio Com mittee for Public Education and Religious Liberty Ohio Free Schools Association Ohio Independent Schools Ohio Municipal League Ohio Public School District Ohio Public School District Cincinnati Ohio Public School District Youngstown Ohio School Boar ds Association Pacific Legal Foundation Pacific Research Institute Parents Acting for Choice in Education Parents Advancing Choice in Education Parents Challenge Parents for School Choice Parents Rights, Inc Partners Advancing Choice in Education Pennsylvania Manufacturers Association Pennsylvania School Boards Association Pennsylvania State AFL CIO People for the American Way People for the Ethical Treatment of Animals Pepperdine University Performing Animal Welfare Society Peyote Way Ch urch of God Philadelphia Planned Parenthood Federation of America, Inc Preserve our Public Schools Primary Life School Prison Dharma Network Prisoner's Rights Project Public Education Network Public Funds for Public Schools of New Jersey Reach All iance Real, Inc. Regents of the University of California Retail Clerks International Assn, AFL CIO San Antonio Conservation Society Save America's Youth, Inc. Scholarship Fund for Inner City Children School CHOICE Scholarships S chool District for the city of Scranton School District of Philadelphia Scientist Secular Coalition for America Sex Information and Education Council of the U.S. Society for the Scientific Study of Sex Shambala Prison Community Spartacist League and Partisan Defense Committee Spearman Independent School District Specialty Research Associates Star Sponsorship Program Student Action Corps for Animals Student Press Law Center Symbas School Teachers for Better Education Texas Association of Non Pu blic Schools Texas Association of School Boards Legal Assistance Fund Texas Civil Liberties Union Texas Justice Foundation Texas Municipal League The Learning Place Tolowa Nation Tort Claimants' Committee Toussaint Institute Fund Town of Trumbull, Connecticut Transworld Airlines, Inc Tri Agency Development Corporation

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134 Tunica Biloxi Tribe of Louisiana U.S. Conference of Mayors U.S.Justice Foundation Ukranian National Association, Inc. Ukranian Workingmen's Association United Americans for Pu blic Schools United Animal Nations United Ministries in Education United New Yorkers for Choice in Education United Poultry Concerns United States Student Association Urban League of Miami Utah Mining Association Utah School Boards Association Ver monters for Better Education Virginia Council for Private Education Virginia School Boards Association Voters for Choice Washington Federation of Independent Schools Washington Legal Foundation Washington Scholarship Fund Washington State School Dir ectors' Association Washtington Humane Society Winnebago Tribe of Nebraska Wisconsin Council for Religious & Independent Schools Women's Law Project Women's Legal Defense Fund Wyoming Mining Association Zero Population Growth

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141 BIOGRAPHICAL SKETCH Kathryn Oates graduated from Clemson University with a Bachelor of Science in political science in 2004. She went directly on to the University of Florida, where she began work on her doctorate. Along the way, she earned a masters degree in political science.