In the United States, the people are becoming less religions, but courts are being packed with extremist judges and justices attempting to reverse course and preserve Christian authority. What is at stake?
A train wreck in slow motion is happening in the United States. While the people are becoming less religious, the courts are becoming more religious.
Ironically, when America had a predominantly White Protestant majority, the courts generally (if not always consistently) worked hard to protect the rights and freedom of minority faiths—and more recently of the non-religious—but now that the traditional majority is shrinking, the newer conservative courts are reversing course in an attempt to preserve the dying privileges of religion. America’s long history of religious liberty for all is slowly derailing due to the packing of the courts with extremist conservative judges and justices who are sympathetic to traditional Christians who claim that they are being persecuted when they are not allowed to persecute others.
In 1890, the Supreme Court of Wisconsin ruled wisely that bible reading in the public schools is unconstitutional. Their decision contains these sage words:
“There is no such source and cause of strife, quarrel, fights, malignant opposition, persecution, and war, and all evil in the state as religion. Let it once enter our civil affairs, our government would soon be destroyed. Let it once enter our common schools, they would be destroyed.”[1]
Whatever might be said about a religion—true or false, good or bad—one fact is undeniable. Religion is divisive. It builds walls between people. It pits in-group versus out-group. The elect versus the damned. The chosen versus the infidels. The higher caste versus the untouchables.
Sectarian conflict has indeed created a “malignant opposition” in our human family around the globe. Without religion, we will still argue and fight, as siblings sometimes do, but the issues can be addressed by appealing to reality, fairness and reason, not to an arbitrary rigid ideology based on transcendent (and therefore untouchable) beliefs. In the Weiss decision quoted above, the “strife” and “evil” created by religion was addressed by an appeal to law, not faith. A family complained and the court came to a reasoned decision based on secular principles of fairness, not religious authority.
Can you guess what kind of family would file a lawsuit against bible reading in public schools? Were they atheists? Were they Jews, Buddhists, native American spiritualists, Hindus, or other non-Christians? The answer should not surprise you.
A train wreck in slow motion is happening in the United States. While the people are becoming less religious, the courts are becoming more religious.
The family who sued were Christians. They were Roman Catholics.[2] They did not object to the bible. They objected to the wrong bible. Wisconsin schools were reading the Protestant King James Version, not the Catholic Douay–Rheims translation, making it appear that the state preferred one flavor of Christianity over others. At that time in history, Catholics were a tiny minority in the state. They felt besieged, and rightly so, because Catholics were being marginalized and persecuted across the country by the dominant Protestant majority who believed God had given America to them (after stealing it from the indigenous people.)
In the Weiss decision, the court acknowledged that a secular government cannot take sides. Citizens should be free to believe, or not, according to private conscience, not influenced by the force of the state. The government should be neutral.
It is the minority faiths, after all, that need protection from the tyranny of the majority. A century later, the U.S. Supreme Court ruled that graduation prayers are unconstitutional in a case brought by a Jewish family.[3] In 2000, the Court decided that student-led prayer at public high-school football games is unconstitutional.[4] The family who complained were not atheists. They were Christians—Mormon and Roman Catholic—who objected to the fact that the prayers were predominantly given by the majority Baptist students in that area.
Some atheists and agnostics have won religion cases before the Supreme Court, such as the 1948 decision that ruled religious instruction in public schools unconstitutional,[5] the 1961 case that affirmed there shall be no religious test for public office,[6] and the 1963 ruling that removed bible reading and “The Lord’s Prayer” from classrooms.[7] But we can’t blame unbelievers entirely. Many believers also agree that the best hope for a peaceful world is secular government. Because, if our leaders take sides, whose side?
Most of the religion lawsuits in America are based on the first two clauses of the First Amendment to the U.S. Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
This means that while the government must back away (“Establishment clause”), citizens have the liberty to worship, or not, as they choose (“Free exercise clause”). There is an old joke that as long as there are tests, there will be prayer in school. But that is private prayer, not public. The people who work for and represent the government must not lead, organize or endorse the prayer. They must be neutral in order not to interfere with the private beliefs of any student or citizen.
As in the historical cases cited above (and many others), the First Amendment not only protects believers from nonbelievers; it also protects believers from themselves.
But now we are turning away from those cherished ideals. The current Supreme Court, packed with extremist justices, six of whom were raised Roman Catholic, is now undoing many decades of secular progress, blatantly ignoring and even overturning those precious principles. One of those principles is the “Lemon test.”
In the 1973 Lemon v. Kurtzman case[8], prohibiting public money from going to religious institutions, the court came up with a useful three-pronged test. The “Lemon test” says that in order for a governmental action to be constitutional under the religion clauses of the First Amendment, it must:
- Have secular purpose
- Have primary effect that neither advances nor hinders religion
- Avoid excessive entanglement between religion and government
A fourth prong was later endorsed by Justice Sandra Day O’Connor:
- It must not endorse religion
A law, policy or practice must pass all of those prongs to be legal. That test has served the country well for many decades, adding clarity to sometimes very complicated issues. But under the new extremist Supreme Court, all of that wonderful history is wobbling. Here comes the train wreck.
The new conservative court is now issuing decisions that overturn the secular precedents. They are now allowing tax dollars to pay for religious schools[9] and approving state scholarships to students attending those schools[10]. Religious institutions that discriminate against LGBTQ couples can receive state funds for adoption services.[11] They are letting companies deny healthcare to female workers for religious reasons.[12] They have permitted a Christian flag to fly over Boston City Hall[13] and have blessed a large 40-foot Christian cross on public property in Maryland[14].
Robert P. Jones, founder and president of Public Religion Research Institute, says: “What we’re seeing is a desperate power grab as the sun is setting on white Christian America. In the courts, instead of moving slowly and systematically, it’s a lurch.”[15] Recently, Oklahoma Attorney General Gentner Drummond, after his state passed a law creating a Catholic charter school to be funded with state taxes (the first in the nation), said that this unconstitutional act “drove a stake in the heart of religious liberty.”[16] (The Freedom From Religion Foundation is involved in challenging that law.)
In the 2022 decision regarding a public high-school football coach who prays with students—a case the court never should have taken, for various reasons, but apparently wanted to take in order to protect religion from attack—Supreme Court Justice Gorsuch, a conservative Trump appointee writing for the majority, said, “this Court long ago abandoned Lemon and its endorsement test offshoot.”[17] Justice Sotomayor’s dissent made it clear that the current court is ignoring facts in order to reach a decision favorable to religion. The conservative justices care about the freedom of the praying coach, but not about the rights of the students who want to be free from religious coercion.
Now that the Court has “abandoned Lemon,” what have they replaced it with? They are invoking two new tests: history and coercion. If the practice has a long history (regardless of whether it advances, endorses or entangles with religion), and/or if nobody is forced to participate, then it can continue. This new direction of the Supreme Court severely curtails the separation of state and church in America.
The Supreme Court’s disastrous 2022 decision overruled the historic 1973 Roe v. Wade decision recognizing a federal right to abortion.[18] Since the only organized opposition to abortion is religious, and since the conservative Catholic majority on the Supreme Court are all personally opposed to abortion (as is the Vatican), it is not difficult to see how patriarchal religion has interfered with the private right of women to control their own reproductive future. Part of the justification for the reversal, the court wrongly asserted, is that abortion was not “deeply rooted in this Nation’s history or tradition,” as if human liberty and civil rights are determined by tradition rather than morality, fairness or well-being. If history is now the test, should we return to slavery, which indeed enjoyed a “deeply rooted” tradition? Should we take the vote away from women, a right that none of the Founding Fathers recognized in the eighteenth century? Using the current Court’s reasoning, all progress should be dismantled because by definition it is not “deeply rooted.”
This throwback to religious privilege is occurring at a time when religion is shrinking. In 1976, Christianity was at an all-time high in the U.S. at 91 percent of the population.[19] Today it has declined to 63 percent. Only about half of Americans now say they are confident God exists.[20] Church attendance has plummeted. At the same time, the percentage of people who claim no religion (informally called “Nones”), is now around thirty percent, an astonishing increase since 1992 when it was only seven percent. Among younger generations (millennials and Gen Z), it is now forty percent who have no religion. The Nones are the fastest growing religious identification in the nation, and are now larger than any single denomination, such as Southern Baptists or Roman Catholics.[21] If the Supreme Court were truly representative (as democratic governments purport to be), then the right of us citizens who wish to be free from religious intrusions should be commensurately respected.
We are also seeing more elected officials who are not religious, as well as a greater commitment to secularism in government. The Congressional Freethought Caucus (“promoting public policy formed on the basis of reason, science, and moral values”) currently has fifteen members at the federal level,[22] and the new Association of Secular Elected Officials (“connecting secular elected officials nationwide”) has dozens of members in local governments—state houses, city boards, county boards and school boards—who are resisting theocracy.[23]
It is not only atheists and agnostics who care about this. The Freedom From Religion Foundation cooperated last year with the Baptist Joint Committee for Religious Freedom (BJC) to produce a joint report on the influence of Christian nationalism in the January 6 insurrection that violently tried to overturn a democratic election.[24] BJC president Amanda Tyler has started a group called Christians Against Christian Nationalism,[25] agreeing with us Nones that the best hope for a peaceful world is a secular government.
Those of us working to keep religion and government separate are diligently trying to slow and reverse the train wreck. In the next decade or so, secular groups—most of whom are in the Secular Coalition for America[26]—will be cleaning up the wreckage caused by those who are derailing freedom and democracy. I am confident that as the younger generation of Nones becomes more politically active by voting and running for public office, we will eventually get our nation back on track.
Footnotes
- Torcaso v. Watkins, 367 U.S. 488 (1961)
- Abington School District v. Schempp, 374 U.S. 203 (1963)
- Lemon v. Kurtzman, 403 U.S. 602 (1971)
- Carson v. Makin, 596 U.S (2022)
- Espinoza v. Montana Department of Revenue, 591 U.S. (2020)
- Fulton v. City of Philadelphia, 593 U.S. (2021)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)
- Shurtleff v. City of Boston, 596 U.S. (2022)
- American Legion v. American Humanist Association, 588 U.S. (2019)
- Jones, Robert P. The End of White Christian America. New York: Simon & Schuster (2016)
- Drummond, Gentner. “State-funded religion violates U.S. and Oklahoma constitutions.” Tulsa World, op-ed, June 17, 2023.
- Kennedy v. Bremerton School District, 597 U.S. (2022)
- Dobbs v. Jackson Women’s Health Organization, 597 U. S. (2022)
- Silliman, Daniel, “Decline of Christianity Shows No Signs of Stopping.” Christianity Today (September 13, 2022) (www.christianitytoday.com/news/2022/september/christian-decline-inexorable-nones-rise-pew-study.html)
- Relevant staff. “Study: Only Half of Americans Are Confident God Exists” Relevant Magazine (May 22, 2023) (relevantmagazine.com/faith/church/study-only-half-of-americans-are-confident-god-exists)
- Burge, Ryan. The Nones: Where They Came From, Who They Are, and Where They Are Going. Minneapolis: Fortress Press (2021)
- Congressional Freethought Caucus. huffman.house.gov/freethought-caucus
- Association of Secular Elected Officials. www.secularofficials.org/
- “Report on Christian nationalism and the January 6 insurrection.” bjconline.org/jan6report/
- Christians Against Christian Nationalism. www.christiansagainstchristiannationalism.org/
- Secular Coalition For America. secular.org/
- Justice H.S. Orton, concurring opinion in State ex rel Weiss v. District Board 76 Wis. 177 (1890)
- Wisconsin Historical Society, “Edgerton Bible Case.” www.wisconsinhistory.org/Records/Article/CS1745[Accessed June 25, 2023]
- Lee v. Weisman, 505 U.S. 577 (1992)
- Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)
- McCollum v. Board of Education, 333 U.S. 203 (1948)
