I first discovered that church-state jurisprudence existed—and that it could enhance my life—at age seven. On June 17, 1963, the U.S. Supreme Court handed down its 8–1 verdict in the combined cases Abington School District v. Schempp and Murray v. Curlett. Both concerned state-sponsored Bible reading in public schools; the High Court thundered that this practice violated separation of church and state and must cease.*
I was then an enthusiastically conservative young Roman Catholic. Yet I applauded the verdict, insofar as I understood it. I belonged to a small minority of Catholic students attending majority-Protestant public grade schools (family lore is inconclusive as to why I wasn’t enrolled in parochial schools, as was expected of most Catholic parents in those days). When I entered the third grade that September, the verdict’s results satisfied my expectations. The Bible reading that formerly began each school day had been purged. I approved because it had always used the King James Version—you know, the Protestant Bible. (In second grade I’d noticed that familiar passages were worded differently from the way I’d heard them read at Mass from Catholics’ Douay-Rheims Version.) As the holiday season loomed, I got a bonus; perhaps over complying with the high court, administrators struck religious carols from the Christmas assembly. The year before, I’d disliked being compelled to hear Away in a Manger set to the melody popular among Protestants, not that favored by Catholics.** (This was before the Second Vatican Council; precocious, religiously conservative Catholic children tended to notice such things, and to worry that forced exposure to tokens of Protestantism might endanger their souls.) (Yes, really.) (No wonder I became an atheist.)
My euphoria at learning that my public grade school in Erie, Pennsylvania, quit striving to damn me to hell vividly demonstrated what progressive church-state jurisprudence could offer a member of a worldview minority, launching my enduring interest in church-state matters. As it happens, I had great timing: Abington v. Schempp and Murray v. Curlett (along with their immediate predecessor, the 1962 Engel v. Vitale, which forbade public schools from composing an official prayer and compelling its recitation) marked the beginning of a “golden era” in church-state jurisprudence. For decades to come, the High Court chipped away at Protestantism’s entrenched preference in American life. From these decisions emerged new freedoms for those who believed differently or (sometimes) not at all.
Like many in my generation, I grew up hoping that America was bound toward a bright secular future in which religion would be treated as a purely private affair. I longed to see religious symbols and expression barred from public spaces. Only that, I thought, could make them optimally welcoming to citizens of every shade of religious opinion.Only that would prevent the Protestant majority from oppressing me using the mechanisms of the state.
However naïvely, those who shared my view expected a naked public square. And we expected the federal judiciary to construct it for us.***
A continuing series of High Court victories emboldened us secularists: Epperson v. Arkansas(1968), Lemon v. Kurtzman (1971), Edwards v. Aguillard (1987), Lee v. Weisman (1992), and a trio of Ten Commandments cases (2005). Of late, such victories come less frequently. Instead a steady drumbeat of verdicts has reinforced the retrograde notion that “religious freedom” is something conservative Christians, not members of worldview minorities, need more of from the courts.
With Justice Anthony Kennedy’s resignation—and his almost inevitable replacement by a jurist far more conservative on church-state matters—I think it’s fair to say that the golden era of Supreme Court church-state jurisprudence has ended. For decades to come, secularists can expect that when church-state cases reach America’s highest court the resulting verdicts will turn back the clock, reversing secularizing reforms we had grown to depend on over the past half-century and more.
In this new environment, secularists will need to seek positive change in state and local courts, in the legislatures, and in the court of public opinion.
Fortunately we have two advantages that mid-twentieth–century secularists did not: everyone knows there are a lot of us, and unbelief is less intensely stigmatized than before.
It’s often said that atheists, secular humanists, and secularists walk the same path LGBTQ activists trod decades before. The difference is we can no longer look forward to High Court rulings such as Lawrence v. Texas (2003) or Obergefell v Hodges (2015) to cement our accomplishments. The federal judiciary won’t be on our side, from the district court level right to the top, for a very long time.
We’re going to be on the losing side of 6–3 Supreme Court decisions for a long, long time.