Public Opinion, Religion, and Constraints on Judicial Behavior

Public Opinion, Religion, and Constraints on Judicial Behavior

Kevin T. McGuire

Religion is a powerful force in American politics. From the time of the American Revolution and the framing of the Constitution to the present day, religious faith has animated the public conversation about all manner of governmental policy (Lambert 2010). Nowhere have the questions about the role of religion in public life assumed greater prominence than in the debates about the meaning of the First Amendment’s Establishment Clause. The constitutional prohibition against governmental endorsement of religion has influenced the consideration of any number of issues, including abortion and contraception, gay marriage, school vouchers, the teaching of evolution, and medical research on AIDS and stem cells.

Because courts are arbiters of the meaning of the First Amendment, judges are often at the center of these conflicts. Although the individual controversies vary a good deal, a basic conflict between majority rule and minority rights animates these cases. Many Americans believe that religion should be a more integral part of public life, and so elected officials often respond by enacting policies that have religious implications. Occasionally those actions may cross the boundary between incidental support for religion and impermissible endorsement of religious beliefs. When various interests believe that government has violated the constitutional separation of church and state, they turn to the courts for relief.

Resolving legal disputes is often problematic: the meaning of a law may be unclear; the intentions of lawmakers may be hard to discern; and prior rulings on an issue may be plausibly construed in different ways. Those problems are only exacerbated when those disputes involve emotionally charged issues, like religion, on which different segments of society have deep and conflicting convictions. How do judges make decisions in such an environment?

In this chapter, I analyze how such external pressures may affect judicial decision-making. Specifically, I examine cases in which judges on state supreme courts are called upon to interpret the First Amendment’s Establishment Clause and to apply the precedents of the U.S. Supreme Court. To what extent do these state judges follow the legal rules put in place by their federal counterparts? The results reveal that these judges respond directly to a variety of pressures. Among other things, local political preferences, as well as the traditional values of the Christian Right in the South, shape how these judges interpret the rulings of the Supreme Court. Elected judges, in particular, find it difficult to follow the Court’s commands, since doing so may harm their chances for re-election.

Religious Establishments and the U.S. Supreme Court

At least since the 1940s, cases raising issues related to government support of religion have occupied a prominent place on the docket of the U.S. Supreme Court. Many of those cases can be regarded as “accommodationist”; they have been decided in ways that favor the interests of religion. So, for example, the justices have permitted tax exemptions for tuition paid to parochial schools, public funding to provide interpreters for deaf children attending religious schools, access for religious groups to public facilities that are generally available to non-sectarian groups, and school vouchers that provide financial support for children attending religious schools.1 More often than not, these decisions have been predicated on the idea that religious interests are not the exclusive beneficiaries. That is, while religious institutions may receive some public subsidy, they are just one of many different types of institutions that might benefit from a particular public policy.

A common thread running through a large number of these cases is that they involve challenges to fiscal policy. Taxing and spending can, and often does, provoke public discontent—“Taxes are too high,” or “Government wastes too much money,” are regular refrains—but because they typically turn on the mechanical details by which government raises and spends revenue, the Court’s decisions in this area lack symbolic value.

By contrast, it has been the Supreme Court’s “separationist” decisions— those striking down governmental support for religion—that have tapped into greater levels of civic symbolism. When the Court invalidated laws providing for prayer and moments of silence in the public schools, it trampled a venerated historical practice.2 When it declared unconstitutional a state law requiring that Creationism be taught as an alternative theory to evolution, it defied the religious convictions of millions of Americans.3 When it held that public schools could not permit members of the clergy to offer an invocation at graduation ceremonies nor students to lead prayer before athletic events, it barred practices common in countless schools across the country.4

Decisions such as these struck down culturally significant practices about which many Americans had strong feelings, and the depth of those feelings are borne out in one opinion poll after another. Virtually all Americans express a belief in God, and the vast majority say that their religious faith plays an important part in their lives. Anywhere from 30 to 40% believe that the Bible should be understood literally, and almost half of all Americans think that it is appropriate to teach the Bible in the public schools. No doubt many think that the Bible should be taught in public schools; roughly 50% say that religious values should receive greater emphasis in the curriculum. Another obvious way to provide that emphasis is through organized religious activity in the schools; in staggeringly high percentages—in some cases, as much as 90%—Americans favor a voluntary prayer or moment of silence during the school day.

These strong preferences notwithstanding, roughly half of all Americans perceive religion, and Christianity in particular, as under attack, and they lay much of the blame on the courthouse steps. When asked whether judges “have gone too far in taking religion out of public life,” nearly 80% agree that they have.5

The intensity of these opinions is evident in the public reaction to the limits that courts have placed on religion in the public schools. In the 1960s, the Supreme Court’s ban on school prayer provoked national criticism from civic and religious leaders, who labeled the decision “disappointing,” “unfortunate,” “frighten[ing],” and “positively shocking and scandalizing” (Clayton 1962). This decision gave rise to various proposals to reverse the Court by constitutional amendment, some of which gained serious ground in the 1980s under President Reagan (Goodman 1984). In 1997, after he issued an order blocking student-led prayer in the public schools, a federal judge in Alabama was condemned by the governor while students around the state launched “prayer protests.” In one small town, dozens of students rallied outside their high school, chanting “We want prayer!” (Sack 1997). In recent years in the South, schools have sought to evade, or have simply defied, rulings banning prayer and the posting of the Ten Commandments in the classroom (Applebome 1994; Johnson 2000).

In light of such opinions and reactions, it is not difficult to see why judges would have a hard time coming to terms with the U.S. Supreme Court’s rulings striking down such culturally significant practices. Like other lower court judges, members of state supreme courts must surely know that, when making decisions in church–state cases, they have the ability to anger large numbers of people. There are, it turns out, strong reasons why those judges would want to avoid doing so.

Political Pressures on State Supreme Courts

Individuals in public life are sensitive to religious preferences, both their own and those of the citizenry (see, for example, Cleary and Hertzke 2005; Kellstedt and Noll 1990; Oldmixon 2005; Wilcox and Robinson 2010). In a republic—a government in which decision-makers act on behalf of those whom they are chosen to represent—it should scarcely be surprising that elected officials would reflect the will of the voters as well as their own judgments about what constitutes the best course for public policy.

Judges, by contrast, are not obliged (at least not theoretically) to consider such factors when making decisions. After all, the textbook depiction of judging involves the application of the law to a specific set of facts. Absent discretion in evaluating the meaning of the law, judges simply make the decisions that the law demands, without regard to the parties or the practical implications. That a decision may adversely affect a large segment of society or prove unpopular with the electorate, under this model, is supposed to be irrelevant to the rulings that judges render.

Yet the evidence is quite strong that judges do consider such factors. Many judges seem to behave strategically, weighing how their decisions will be viewed by their colleagues, organized interests, elected officials, and elite and mass publics (see, for example, Bailey and Maltzman 2011; Baum 2006; Collins 2008; Epstein and Knight 1998; McGuire and Stimson 2004; Murphy 1964). So, decisions of both federal and state courts can depart from the personal preferences that might otherwise guide a judge’s choices (Brace and Hall 1993; Hettinger, Lindquist, and Martinek 2006; Klein 2002).

For judges on state supreme courts, making decisions about religious establishments involves interpretation of the Constitution’s First Amendment. Since the U.S. Supreme Court has the last word on that law’s meaning, those judges are obliged to base their decisions on that court’s precedents. Even with such legal guidance, making decisions about religion’s permissible place under the law can be especially problematic for judges at the state level. It is one thing to believe, as an abstract matter, that a decision must be based upon the authoritative rulings of the U.S. Supreme Court. When actually doing so may provoke a backlash, it is quite another. The professional satisfaction of adhering to the doctrines of the justices—who may be located hundreds of miles away in Washington, DC—will be cold comfort to a judge who is stung by criticism when she upends a cherished local custom. What kinds of factors might affect how members of state supreme courts make decisions in cases that are of such symbolic importance?


The vast majority of judges on state supreme courts are elected by the voters. To be sure, there is a good deal of variation in state judicial selection: some judges are elected, like other officials, in partisan contests; others run for election without regard to their partisanship; still others are retained in office by the voters only after having been selected through the combined efforts of an independent commission and a state governor; a few are chosen by their state legislature. Despite this variation, most of these judges obtain and retain their offices by appealing directly to the voters in competitive elections (Bonneau and Hall 2009). Elections, by design, create incentives for office-holders to come to terms with the preferences of the voters. Elected judges, therefore, have reason to consider what the consequences of a decision may be for their ability to retain their offices.

Many seem to do just that. Judges with prior experience in the electoral arena understand the need to maintain their standing in the eyes of the voters, and elections constrain them from straying too far from the political main-stream; in cases involving highly-charged issues, such as capital punishment, both liberal judges and judges who have previously served in some type of representational role seem to appreciate the need to hew closely to public sentiment and are more supportive of the death penalty than they might otherwise be (Brace and Hall 1993; Hall 1992).

Issues such as capital punishment and religion resonate strongly with voters. Judges on state supreme courts want to avoid being labeled as “soft on crime.” So too do they wish to steer clear of being characterized as “hostile to God.” Such accusations would constitute significant baggage in a re-election campaign, and therefore judges who must face the electorate have especially good reasons to find ways to avoid the Supreme Court’s separationist precedents.

Regional Norms

Nowhere in the United States has religion been more integrated into public life than in the South. Religious faith has long been closely tied to that region’s social structure (Harvey 2007; Mathews 1979). Even today, southerners have distinctive religious values, relative to the rest of the nation. They are more likely to read the Bible, to attribute the healing of an illness to prayer, and to believe in demonic possession. And when polled, “48 percent of southern respondents agreed with the statement, ‘The U.S. is a Christian country and the government should make laws to keep it that way,’ while 32 percent of non-southerners agreed” (Goldfield 2004, 11).

It is scarcely a wonder, then, that many of the U.S. Supreme Court’s cases challenging religious practices have come from the South. More to the point, when the Court has struck down such religious practices as unconstitutional, the South has been more reluctant to obey the Court’s rulings than other parts of the nation (Birkby 1966; McGuire 2009; Way 1968).

Southern judges—especially those who live amongst large numbers of conservative Christians—would naturally be socialized in the norm of support for religion. Imbued with these cultural values, they should find it easier to resist the Supreme Court’s liberal impulses on questions of religious establishment. Even if supreme court judges in the South are not necessarily inclined to support a greater role for religion in public life, they would surely be aware of the strength of the convictions of their fellow citizens. Like most people, judges place a psychological value on their reputations (Baum 2006), and they should act in ways that enhance (or limit damage to) their standing in the community. In the 1950s, federal judges in the South who were charged with putting into effect the Supreme Court’s desegregation policy learned this lesson quite painfully (Peltason 1961). Faced with similarly unpopular rulings on religious practices, the supreme court judges in southern states should look for ways to avoid following the liberal rulings of the justices in Washington.

Religious Preferences

The Christian Right has become a major force in American politics, and its strength derives in part from the large number of adherents who live throughout the United States. Its presence is particularly substantial in the South; indeed, one of the reasons why the South has had such high levels of social conservatism is its disproportionate number of Evangelical Christians (Boles 1996). In the southern states, Christian fundamentalists have adhered to a more conservative brand of Evangelical doctrine, including a strong belief in biblical literalism and a rejection of evolution (Wilcox 1991; Wilcox and Robinson 2010).

Like any organized interest, the religious right seeks public policy consistent with its preferences by advocating its agenda to relevant policy-makers. As representatives, legislators are attentive to the various predilections of their constituents (see Jewell 1985), and the religious preferences of the electorate can be especially salient to office-seekers (Yamane and Oldmixon 2006). Thus, the presence of a large number of conservative Christians, particularly in the South, should have obvious relevance for public officials who make decisions about the role of religion within society.

For their part, judges on state supreme courts who know that their jobs depend, at least to some extent, upon satisfying Evangelicals within their state have good reason to favor conservative principles when resolving questions about the meaning of the Establishment Clause. To be sure, the influence of conservative Christians may be more relevant for judges who must appeal directly to the voters for support—indeed, recent research suggests that elected judges are no less affected by the wishes of the voters than their legislative counterparts (Brace and Boyea 2008)—but regardless of how they are chosen, judges of all stripes want their decisions to be taken seriously by relevant publics. After all, judges do not possess any power beyond their ability to render opinions in individual cases. As a consequence, judges are motivated to maintain the credibility that is necessary for their decisions to be carried out by elected officials; they are dependent upon different constituencies to give force to their edicts (Murphy 1964). Members of state supreme courts who run afoul of the religious convictions of their fellow citizens face a loss of standing within their respective communities and should, therefore, take such religious preferences into account.

Citizen Ideology

Religious preferences may naturally be important when resolving cases that have religious implications. But if judges are concerned about preserving their legitimacy, religious convictions alone may not capture the full effect of local opinion. The ideological orientations of a state more generally might well be a consideration. Those orientations vary widely across the country: southern states (e.g. Alabama, Georgia, and Mississippi) and western states (e.g. Idaho, Utah, and Wyoming) have some of the most conservative populations, while liberal preferences are more common in the northeast (Massachusetts, Rhode Island, and Vermont) (Berry et al. 1998). Whatever the preferences of the state’s citizenry, they establish an important context in which judges must operate.