Creating the 'Cruel Secular'

In July of 2020, as the world sheltered in place in the midst of a global pandemic, Justice Brett Kavanaugh of the U.S. Supreme Court offered Americans some admonishing words about the secularized culture of the contemporary U.S.: in his estimation, when faced with the need to make tough decisions about restricting communal gatherings in the name of public safety, many Americans were likely to “‘assume the worst when people go to worship but assume the best when people go to work.’” Kavanaugh’s complaint not only reiterated a longstanding characterization of the anti-religious tendencies of many Americans but it pulled the exigent matrix of COVID-19 restrictions into this pre-existing narrative of “hostility” to religion. In the months following Kavanaugh’s complaint, other justices on the Court reiterated this critique, describing particular COVID policies as indicative of Americans’ reflexive preference for “secular convenience” and also as an index of the way in which “religious liberty is fast becoming a disfavored right” in the U.S. 

This paper explores a particular formulation of secularity that has become a mainstay of conservative discourse on the U.S. Supreme Court. As the example above demonstrates, this formulation is expansive and stubbornly negative – a diagnostic capable of encompassing social ills ranging from civic intolerance to moral relativism to governmental overreach. Though this formulation initially surfaced on the Court in resistance to twentieth-century efforts to bolster the separation of church and state, it has evolved well beyond this realm of First Amendment jurisprudence; in recent decades, it has become a key feature of conservative justices’ resistance to the Fourteenth Amendment liberty rights at the heart of such progressive causes as abortion rights and LGBTQ equality. Indeed, as this paper will show, this formulation of secularity played an important role in the 2022 overturning of Roe v. Wade. Even more broadly, this formulation has served as a means for at least one member of the Court to criticize the foundational logic of universal human rights. 

This paper begins with an analysis of the Court’s first overt reference to secularity as a legal principle, raised as it considered the constitutionality of Bible-reading within U.S. public schools in the 1960s. It then traces the near-simultaneous emergence of what I will call a discourse of “cruel” secularity – a characterization of the secular legal aspirations of the 1960s as both a symptom of growing American hostility to particular religious worldviews and a subtle endeavor to establish a system of values that reflects the sensibilities of political liberals (at the expense of the “traditional” religious sensibilities of many Americans). This “cruel” counterpart to the legal secularity of the 1960s hearkens back to longstanding conservative anxieties about modernity, but this paper will focus upon the way in which, beginning in the 1980s, it became framed as a legal problem to be addressed by U.S. courts. A central figure within this legalization of the discourse of cruel secularity was Antonin Scalia, who stepped on to the U.S. Supreme Court in 1986. 

Following a description of the emergence of the discourse of cruel secularity, this paper traces its development into an expansive trope within the conservative narrative of socio-political hostility to “traditional” religion – a hostility that has ostensibly minoritized particular Americans even as they continue to be demographically prevalent. One of the most striking effects of this has been a systematic deployment of the First Amendment’s free exercise clause in defense of the embattled rights of conservative Christians. The Court’s rendering of the cruel secular, with its imputation of deep socio-political favoritism toward liberal religious sensibilities, has been instrumental to this legal trajectory. 

So far, the apotheosis of this legal trajectory is the 2022 Dobbs v. Jackson Women’s Health decision, which overturned Roe v. Wade in part through a depiction of legalized abortion as government favoritism toward a “liberal” system of beliefs. This paper will culminate in a description of this logic as it played out in the Dobbs case. In highlighting Dobbs as a manifestation of this broader trajectory of secular discourse, this paper will reveal the subtle, malleable power of the cruel secular within today’s Supreme Court jurisprudence. It will also help us more clearly understand the role that a particular secularist logic has played in producing our current moment.