Where to Place the “Nones” in the Church and State Debate? Empirical Evidence from Establishment Clause Cases in Federal Court

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life. Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic judges. We had reported a similar influence in the past, finding that, in the education context, Catholic judges were significantly more likely to resist Establishment Clause challenges to governmental acknowledgment of religion or interaction with religious institutions. Unprecedented in prior empirical studies, we also found that judges without a religious affiliation—falling within the growing demographic of the so-called “Nones”—were significantly less likely to uphold an Establishment Clause claim. Holding other variables constant, the predicted probability that a judge without a religious affiliation would approve an Establishment Clause challenge was 24.9%. Judges with a religious affiliation approved such claims at a 40.0% rate. Interestingly, and counterintuitively, our study suggests that a decrease in religious affiliation in society may not inevitably be accompanied by a secularist opposition to acknowledgment of religion in the public square or the robust participation of religious persons and entities in public life. Studies confirm that the number of Americans who do not affiliate with organized religion (“Nones”) has increased to a quarter of the population. We find that demographic change is now reflected among federal judges as well, as 11.5% of the observations in this study involved judges without a religious affiliation. While not surprisingly finding that Catholic judges were significantly more likely to reject an Establishment Clause claim, we also found evidence that judges who are Non- Religiously-Affiliated, or Nones, were also more likely to turn away Church and State complaints.