As America gets more secular, the Supreme Court sides more with religion

June 22, 2022 • 12:00 pm

I think this “morning newsletter” is part of the NYT’s increasing trend to Tell You What You Need to Know, or What the News Means—the latest trend to dumb down the news for the busy liberal American. Except this is probably something that the readers here either knew or suspected: that is, the Supreme Court is increasingly ruling in favor of religion. That’s no surprise with a conservative majority that’s largely Catholic, but the trend has gone on for seven decades now, which is worth knowing.

Here’s What You Need to Know from the latest NYT (click to read)

Here are the rulings in favor of religious arguments in orally argued cases, divided up by era and the presiding Chief Justice:

Actually, with yesterday’s ruling in favor of vouchers in Maine for religious schools, the Roberts court’s “anti-First-Amendment” score has risen to 85%. That’s nearly twice the rate under Earl Warren. But things didn’t change that fast until Roberts came in and the other conservative justices like Kavanaugh and Barrett joined him later. Now we have a punctuated equilibrium for coddling faith. We have a new liberal judge on deck, but that only means more 6-3 rulings, since the new one, Ketanji Brown Jackson, will replace the liberal Breyer.

Now we know that America is slowly becoming less religious, but court rulings are favoring religion much more rapidly over time. The trends are in opposite directions. Why?

Philbrick gives three reasons, none of which are surprising. These are direct quotes.

1.) Over the past few decades, the rise of the religious right has made religious freedom a political priority for Republicans. That shift has corresponded with nominations by Republican presidents of justices who favor religious groups even more frequently than previous conservative justices.

2.) Republican-appointed justices also have a better track record of timing their retirements to ensure that a Republican president will name their successor,. . . .

3.) Republican presidents choosing successors to justices appointed by Democrats. Clarence Thomas, one of the court’s staunchest advocates of religious liberty, replaced a liberal icon in Thurgood Marshall, as did Amy Coney Barrett, who took over Ruth Bader Ginsburg’s seat in 2020.

DUH!  #3 follows from #1 and #2, so it’s not really a different reason. The only thing that struck me was the trend and the rapid increase: the difference between the Rehnquist Court and the Roberts Court is a rise in 25% in the proportion rulings in favor of religion.

This is what we’ll have to expect in our lifetimes (if you’re older): a dismantling of the establishment clause of the First Amendment. All by 6-3 votes.

One more thing to watch out for:

The court is considering a second religion case that deals with a former high school football coach who lost his job for praying at the 50-yard line after games. A ruling is likely in the coming days.

If you read the link, you’ll see it involves a public-school coach praying midfield after a football game. He’d been told to cool it with these displays, but couldn’t keep Jesus bottled up in him. He was fired for the implied coercion of students involved in public prayer (he’d previously prayed with the players, and been told not to). I can see that there is a “free speech” side of this, but what about a teacher who prayer in her classroom after the bell rings? At any rate, the Court has already signaled that it’s going to rule in favor of the “right to pray”.

But this isn’t nearly as irritating as what the court just did with the Maine law. In that case, all the citizens of Maine will be required to subsidize the education of Christians in an evangelical and homophobic school, one that probably teaches creationism as well. The coach kneeling by himself midfield neither breaks my bones nor picks my pocket, but the people of Maine are truly having their pockets picked.

And that’s All the News You Need to Know.

h/t: Bat

29 thoughts on “As America gets more secular, the Supreme Court sides more with religion

  1. I’m a little more disturbed by the Kennedy case. How would I feel to know that my kids’ opportunities in public school athletics hinge on their willingness to join their coaches in prayer? That’s what’s coming.

    1. You’re assuming that Moscow Mitch would have allowed Obama to appoint 3 justices. He wouldn’t have, Garland is proof.

    2. Absolutely. And I’m still irritated with the emotional “Notorious RGB” blather that was heaped on a *very* elderly person who was simply too prideful and stubborn to do the right thing.

  2. I think the assessment that the Court is more pro-religion (or less anti-religion) under conservative justices is obviously true. But I do not agree with the assessment that the Court is “dismantling of the establishment clause of the First Amendment”.

    The 2nd result of “establishment clause” is this:

    Quote: “Scholars have long debated between two opposing interpretations of the Establishment Clause as it applies to government funding: (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. Initially, the Court tended toward the first interpretation, in the 1970s and 1980s the Court shifted to the second interpretation, and more recently the Court has decisively moved back to the first idea.”

    So, instead of saying the Court is “dismantling of the establishment clause of the First Amendment”. It would be accurate to say the Court is reversing the interpretation of the establishment clause to its initial meaning.


    It is true that America is becoming more secular / less religious. As an atheist, though, I can no longer celebrate this as a positive change. When people are less religious, it does not necessarily mean they are more rationale. Based on the observation of the current cultural trend, I think it may go to the opposite direction. Crazy people on both end of the political spectrum, far left and alt-right, they are not religious. The people who are destroying academic freedom, or the important civil institutions like ACLU, they are both non-religious fanatic intolerant nuts.

  3. Don’t forget the trans of the original motto, “All The News That’s Fit to Print.”

    Now: “All the News That Fits.”

  4. As far as the “right to pray” at school events, I think courts have ruled that student led prayer is OK. What bothers me about this is, how would you ever know the coach or a devout teacher was not involved in suggesting the practice? And, if some students initiate praying and almost all students join in, isn’t that almost the same as school directed prayer? Most students will join in simply not to be left out. The few Muslim, Hindu, or atheist students standing on the sidelines are made to feel unwelcome. Even student led prayer should be somehow isolated from school-wide events.

    1. Yes, the fanatics are sneaky little devils and not above co-opting a willing student or two who also wants to publicly pray or even curry favor with the coach. I think that one of the issues with official prayer in school is the implied pressure on children who do not want to participate for their own personal reasons. I know that the constitutional issue of Separation is more important than a person’s unease, but as a Jewish child in the 50’s and 60’s, i certainly felt a little uncomfortable standing silent while all of my Christian classmates said the lord’s prayer and even as an atheist adult in later years as a teacher, I made sure to stand silently to provide comfort for any students who might look for some comforting company at public events for young people. I say this while fully recognizing Lukianoff’s and Youngkin’s great untruth of fragility as I survived my time in elementary school and maybe was a bit stronger because of it, but with the current mobbing up of the right wing, who knows when mere words and unapproving looks may become sticks and stones.

  5. The first amendment’s prohibition of an established religion seems not to have worked out all that well.
    There are official state churches in Denmark, Iceland, the Faroe Islands, and England—-in the latter, the
    Queen is titular head of the Church of England, and its 26 bishops are automatically members of the House of Lords. Yet who would say that the US, with its first amendment, is friendlier to secularism than England, the Faroe Islands, Iceland, or Denmark? I haven’t examined a Faroese króna recently, but I doubt that it carries an “in God we trust” message. In short, the existence of an established church does not preclude a lot of freedom from religion. It may even help it, at least in certain cultures.

    1. Good point. Denmark , Faroe islands, Netherlands, Belgium and many others are way more friendly to secularism than the US appears to be, despite the US Constitution, which is essentially secular.

      On a side note, I gather that many, if not most, of the framers were free masons. Free Masons were promoters of the Enlightenment. Washington certainly was a Mason.

  6. You just need Muslim schools and Church of Satan schools to apply for vouchers to get the court to rethink things. Similarly with the prayer on the field.

  7. Since I’m being asked to help fund religious schools, how ’bout churches start paying some taxes…

    1. Oooh, you are so right there. Churches are money making machines. Let them pay taxes like anybody else. Why do churches don’t have to pay taxes?

  8. I don’t know the details but I wonder if this new ruling is not so much pro-religion as just not anti-religion. If a state provides funds for education, it would seem to be a little harsh to not fund a school simply because it is religious. How religious would a school have to be to be denied these funds? As long as they don’t fund ONLY religious schools or deny funding to, say, Muslim schools, that would be constitutional, wouldn’t it? I’d love to hear how I’m wrong on this.

    1. You are wrong because the Constitution prohibits it. If I’m not mistaken that is. I’d say it does , but then, I’m not a SC Justice finding aĺl kinds of twists .j

      1. So the Establishment Clause says “Congress shall make no law respecting an establishment of religion.”

        Of course, SCOTUS has had to interpret this pretty vague language. Here’s some parts of the linked article:

        In Lemon v. Kurtzman (1971), the Court established a three-pronged test for laws dealing with religious establishment. To be constitutional a statute must have “a secular legislative purpose,” it must have principal effects that neither advance nor inhibit religion, and it must not foster “an excessive government entanglement with religion.”

        Twenty-six years later the Court modified the Lemon test in Agostini v. Felton (1997) by combining the last two elements, leaving a “purpose” prong and a modified “effects” prong.

        In County of Allegheny v. American Civil Liberties Union (1989), a group of justices led by Justice Anthony M. Kennedy in his dissent developed a coercion test: the government does not violate the establishment clause unless it provides direct aid to religion in a way that would tend to establish a state church or involve citizens in religion against their will.

        IMHO, the current decision is consistent with these earlier ones.

    2. > If a state provides funds for education, it would seem to be a little harsh to not fund a school simply because it is religious.

      I think this is one of those cases where people want to prop up an infrastructure (government-funded schools) and then are surprised when it is used to support something they don’t like. It’s the rule of unintended consequences. If your opponents can turn your tools against you, they will.

  9. Thinking about this ruling, which I disagree with, it bothers me less than the looming likely ruling to reverse Roe v. Wade. In the school ruling, some families are given rights to attend religiously affiliated school who wouldn’t have had the state pay for it, and, theoretically, at least, this would apply to Jewish and Moslem schools too. Reversing Roe v. Wade would deprive people of the right to have an abortion because of some religions’ prohibition of that, even though some religions allow the procedure, which very clearly favors some religions over others—-clearly violating the First Amendment, as far as I can see.

    1. What you did there with Roe v Wade is called motivated reasoning. You have a pre-formed opinion and you find things in an amateur, “as-far-as-I-can-see”, reading of the Constitution to support it.
      If the leak is true, the Supreme Court disagrees with you. If it thought state abortion laws violated the First Amendment it would have said so. It didn’t. Therefore they don’t.

  10. Re praying : Johan Cruyff, arguably the GOAT in soccer
    noted that before a match in Spain, all 22 players made the cross sign. ” if it works all matches would end in a draw”. Not just the GOAT, but a staunch atheist, well before Dawkins.
    If you think he was not the GOAT footballer, we can argue about that. And you will come second best.

  11. Yes he made Barcelona one of the world’s greatest clubs. He invented (with Michels) , ‘total football ‘ and later the ‘tictac’ football. The GOAT.(IMMO).

  12. I’ll give Philbrick another (obvious) reason why SCOTUS is becoming more radical…I mean religious. Mitch McConnell twisting rules to block justices picked by Democratic Presidents, and Republican Presidents choosing justices exclusively groomed by the Heritage Foundation.

  13. I’ve written before here and in my column about how wrong I was predicting as a teenager in Australia in the 1980s that in 30+ years time religion, like, say, smallpox, would be a thing of the past (with the possible exception of old Greek grandmothers and teenage Lebanese fanatics).

    I was wrong…. BUT…. a decade later when I’d realized I was wrong, the tide started turning and as we can see religion really IS declining, quite fast in many places. Scandinavia is almost “free” and even the US is showing great signs of improvement.
    So there’s hope for the west – wealth and technology have greatly contributed to this trend, thankfully.

  14. I sort of expect secularization of the population to result in more cases where religious people seek protection under the constitution.
    The coach who was fired for praying might well have been guilty of pressuring the players to join. However, in the current political climate, I would not be shocked if he did not do so, but was being persecuted for his personal beliefs. I suspect it was a little of both.

    Also, I have to disagree with Dr. Coyne on the religious school issue. Sometimes the best school in the area is affiliated with, or was founded by, a religious group. Beyond that, public schools have become a disaster, and a really expensive one. The point of vouchers is that the parents get to choose what school is best for their kids. Arguing that “I don’t want my money to go to…” is misguided, because it is no longer your money. The same argument is used for people who spend their food stamps on unhealthy diet choices.
    I would never advocate forcing you to send your kids to a school with a religious affiliation, but it seems just as wrong to forbid it.

  15. I’ve long said that, though non-violent, the single thing that would turn me into an armed guerilla fighter in the United States was a theocratic takeover.

    I confess I never thought I’d have to actually do it, but now I’m not so sure.

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