The Nones and the Religion Clauses

The “Rise of the Nones” is one of the most talked about trends in American religious life at the beginning of the 21st century. It refers to the dramatic increase in Americans telling pollsters that they are not affiliated with any religion since the 1990s. The study shows that Nones account for around 25% to 33% of Americans today, up from 6 percent just a generation ago. The category is quite broad, comprising militant secularists, atheists, agnostics, and the “spiritual but not religious”—persons who reject formal religious affiliation but nonetheless believe in some supernatural power or powers. Often, Nones mix and match elements of different traditions to come up with their own, DIY forms of religion—what one scholar has referred to as a kind of spiritual “bricolage.”

Two new fascinating articles from law professors Gregory Sisk, St. Thomas and Michael Heise, available here and here. They shed light on how Nones are starting to have an impact on religion cases before the federal courts. For years, Sisk and Heise have done empirical research on the effect of religious affiliations—the judges’ and the parties’—in such cases. These new articles offer some unexpected and not so surprising observations on the increasing impact of the Nones.

It’s not surprising, first: the federal judges have a higher percentage of nones than the general population over the last few decades. Sisk and Heise have found that 11.5% of judges are Nones in the current study. This is double what they saw in the first study which was from 1986-1995. But, Sisk and Heise highlight that nones have more likelihood to have been appointed by Democratic presidents to the bench (although Nones do also make up the GOP-appointed judge pool), which is not surprising given the prominence of secular Americans within the Democratic Party.

Sisk and Heise did not observe any significant effect on their research, but Nones sitting at the bench seem to be comparatively hostile towards religious accommodation under the Free Exercise Clause. Perhaps Nones, who reject traditional religion, object to such accommodations as a form of special pleading, especially because—and this a final, unsurprising observation—Nones are comparatively unsuccessful when they themselves seek such accommodations in the courts. According to Sisk and Heise, the success rate for Nones in these cases is 25%, while traditional religious claimants have 39%.

Here’s the shocking observation. It is possible to expect Establishment Clause-supporting judges to reject organized religion. Such judges might rule, for example that public display of religion is against the separation of church & state. Sisk and Heise did not find this. They report that none of the judges are more likely to support Establishment Clause claims than those who have religious affiliations. According to them, the probability that an Establishment Clause judge would accept a challenge from a judge who is not religious was 24.9 per cent. However, religious judges approve Establishment Clause challenges at a rate of 40.0 per cent.

How might Judges Who Are Nones see Free Exercise and Establishment Clause claims different? Sisk, Heise and others believe that Somes are more open-minded to religious displays than Others, as they tend not to be involved in organized religion. Many Nones are not opposed to religion and may even take elements from traditional faiths into their own. However, Nones care about the enforcement of non-discrimination legislation. This has been the focus for recent controversy regarding religious accommodation.

It is only one example. Sisk’s and Heise’s observations are well worth taking into consideration. Many years ago I had predicted that the rise in the Nones would lead to sharp controversies within our legal system and culture. That’s still my belief with regard to religious accommodation, which Sisk’s and Heise’s seems to support. But, Sisk’s and Heise may be right that the impact of the Nones upon Establishment Clause conflict might be even more severe. We’ll see.