Secularism and the Supreme Court
Dent, George W., Jr., Brigham Young University Law Review
"God is dead."
"The third day He rose again from the dead."
-The Apostle's Creed^^
Beginning with the Enlightenment in the eighteenth century, religion was widely denounced by intellectuals as superstition, the enemy of reason and progress. They fought to extirpate religion from public life and predicted that, as social conditions improved through scientific progress and the spread of freedom, democracy, and education, religion would wither away. This secularism1 triumphed in the Supreme Court in the 1960s and transformed the Court's construction of the religion clauses of the First Amendment of the Constitution.2 Defying the intellectuals' prophecy, however, secularism declined. Americans remain as religious now as in the past, and more vibrant sects (often labeled "fundamentalist") are growing at the expense of more pallid, mainstream sects. Many intellectuals now realize the social significance of religion.
In the Supreme Court, however, secularism remains strong. Legal scholars have long noted the Court's dim view of religion, but they have never explored either the rise of secularism or its anomalous persistence in the Court despite the revival of religion elsewhere. They have ignored the significance of these developments for constitutional jurisprudence and for the role of religion in public discourse.
This Article attempts to rectify these oversights. It traces the rise of secularism (Part I) and its subsequent retreat during the resurgence of religion (Part II). Part III begins by examining the rise of secularism in the Supreme Court in the context of the general dominance of secularism among intellectuals. It then considers why secularism persists in the Supreme Court despite its demise elsewhere. Finally, Part III also discusses how a decent respect for religion would influence constitutional jurisprudence and argues that this influence would benefit society.
I. THE RISE OF SECULARISM
A. The Demise of Ecclesiastic Dominance
There have always been skeptics who question religion. Thus, the Book of Psalms states: "The fool hath said in his heart, There is no God."3 The Middle Ages, however, was an age of faith in which religious dissent (including atheism) was weak and easily suppressed by the powerful Church.4 The Protestant Reformation and the rise of nation-states with potent rulers eager to curb the rival power of the Church unleashed religious dissent. Sectarian warfare made religion, a traditional source of stability, a source of strife. The corruption and wealth of the Church belied its moral and spiritual missions, making it appear as just another selfish, oppressive worldly power. Science refuted several beliefs endorsed by the Church. More disturbing, the scientific method of empiricism challenged the Church's reliance on faith. Expanding literacy and availability of books after the invention of the printing press broke the monopoly of the parish priest on the information and opinions available to the people. Thus with the Reformation, the challenge to established religion first became robust, widespread, and public.
The Church bungled this challenge. Rather than admit its faults, correct them, and adjust to new knowledge and social conditions, it redoubled its resistance to change and dissent. The Counter Reformation recovered much of Catholicism's lost territory, but in the competition for people's minds it largely failed; the Church's suppression of heterodoxy merely made it an easier target for criticism. Where Protestant theocracies seized power, as in England under Cromwell, they generally committed the same mistakes. These blunders tarnished respect not just for particular denominations but for all religion.5
Secularism is not a single, consistent critique of religion but encompasses many otherwise antagonistic ideologies, like capitalism and Marxism. On the other hand, the struggle between religion and secularism often divides people who agree on most other issues. …