The Nones and the Religion Clauses

Two new empirical studies on the influence of Nones in law and religion cases

One of the most discussed trends in American religion at the start of the 21st Century is the so-called "Rise of the Nones," the sharp increase, since the 1990s, in the percentage of Americans who tell pollsters they have no religious affiliation. Depending on the study, Nones now make up about a quarter to a third of Americans, up from something like six percent 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."

A couple of fascinating new articles by law professors Gregory Sisk (St. Thomas) and Michael Heise (Cornell), available here and here, shed light on the ways Nones have started to influence religion cases in 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. Their new articles contain some surprising, and some not so surprising, observations about the growing impact of the Nones.

First, the not-so-surprising: just as the percentage of Nones in the general population has increased over the past few decades, so has the percentage of Nones among federal judges. The percentage of Nones among judges in Sisk and Heise's current study, which covers the years 2006-2015, is 11.5%, double the percentage in their first study, which covered the years 1986-1995. Nones are more likely to have been appointed to the bench by Democratic presidents (though Sisk and Heise point out that Nones also number among GOP-appointed judges), which is to be expected, given the comparatively prominent role secular Americans have in the Democratic Party.

In addition, although Sisk and Heise didn't observe a large effect in their study, Nones on the bench appear comparatively hostile to religious accommodations 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. Nones have a success rate of 25% in such cases, Sisk and Heise report, while claimants from traditional religions have a success rate of 39%.

Now for the surprising observation. One might expect judges who reject organized religion to favor Establishment Clause claims. For example, one might expect such judges to rule that public displays of religion violate the separation of church and state. But that is not what Sisk and Heise found. In fact, they report, Nones on the bench are significantly less likely than religiously affiliated judges to favor Establishment Clause claims. "Holding other variables constant," they write, "the predicted probability that a judge without a religious affiliation would approve an Establishment Clause challenge was 24.9 percent," while judges "with a religious affiliation approved such claims at a 40.0 percent rate."

What might judges who are Nones view Free Exercise and Establishment Clause claims differently? Sisk and Heise believe that Nones, who are detached generally from organized religion, may be more or less indifferent to public displays of religiosity. Recall that many Nones do not reject religion as such and even adopt elements of traditional faiths as their own. But Nones are very concerned about enforcing non-discrimination laws, which of course have been the focal point for many recent controversies regarding religious accommodations.

This is only one study, of course. But Sisk and Heise's observations are worth considering. A few years ago, I predicted that the rise of the Nones would portend sharp controversies in our culture and our law. I still think that's likely to be the case with respect to religious accommodations, and Sisk and Heise's data seem to bear that out. But, if Sisk and Heise are right, the effect of the Nones on Establishment Clause conflicts may be more irenic. We'll see.