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

27 Pages Posted: 18 Mar 2022 Last revised: 30 May 2023

See all articles by Gregory C. Sisk

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

Michael Heise

Cornell Law School

Date Written: 2022


In our ongoing empirical examination of religious liberty decisions in the federal courts, we find that judge religious backgrounds in two categories are significantly associated with the outcome in Church and State disputes for 2006-2015.

As in past empirical studies, Catholic judges were significantly more likely to reject an Establishment Clause claim. And, in a remarkable and unprecedented finding, we found that Judges without a religious affiliation, who are among the so-called “Nones,” were also more likely to turn away complaints that government interaction with religion contravened the Establishment Clause. In addition, judges from states with higher numbers of religiously unaffiliated in the population also appeared less likely to be attracted to Establishment Clause claims.

Our study raises the real possibility that a decrease in religious affiliation 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. Instead, those who stand outside of the traditional conflicts among religious believers—that is, those not embedded within the historical tensions among Protestants, Catholics, and Jews—may be less offended by inclusion of religious entities in public programs or a religious reference or icon in a public setting.

Keywords: Federal courts, judges, Establishment Clause, First Amendment, freedom of religion, judicial decision-making, empirical legal studies, Nones

Suggested Citation

Sisk, Gregory C. and Heise, Michael, Where to Place the 'Nones' in the Church and State Debate? Empirical Evidence from Establishment Clause Cases in Federal Court (2022). St. John's Law Review , Vol. 96, No. 3, 2022, U of St. Thomas (Minnesota) Legal Studies Research Paper No. 22-20, Cornell Legal Studies Research Paper 22-27, Available at SSRN: https://ssrn.com/abstract=4060435

Gregory C. Sisk (Contact Author)

University of St. Thomas School of Law (Minnesota) ( email )

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Minneapolis, MN Minnesota 55403-2005
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Michael Heise

Cornell Law School ( email )

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Ithaca, NY 14853-4901
United States
607-255-0069 (Phone)
607-255-7193 (Fax)

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