chapter  13
18 Pages

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.