Jeremy Patrick is a Lecturer for the University of Southern Queensland School of Law and Justice
In a previous piece on the ICLRS blog, I argued that the legal understanding of freedom of religion should be extended and interpreted to encompass individual spirituality. The beliefs of the “spiritual but not religious” (SBNR) may be very different than the traditional understanding of religion as a hierarchical, institutional, fixed set of beliefs about God that impose duties on believers, but I suggested that, nonetheless, the spiritual views of “SBNRs” should be given respect and protection. But from a constitutional perspective, freedom of religion is just one side of the coin. What about the other side: establishment of religion? In what follows, I intend to sketch the contours of how individual spirituality may interact with constitutional guarantees of non-establishment.
My primary hypothesis is that individual spirituality will prove far less threatening to the separation of church of state than mainstream religion does. However, we conceive of the values inherent in the Establishment Clause (and similar provisions in other constitutions)—whether “strict separation,” “secularism,” “neutrality,” “accommodation,” “non-coercion,” or something else—the rising phenomenon of individualized notions of spirituality will create relatively few clashes compared to the frequent and contentious debates that today force us to constantly revisit the appropriate interaction between government and religion. This is because the characteristics commonly associated with individual spirituality make it much more unlikely that a government will adopt or endorse them. These characteristics include a resistance to authority and proselytization, an aversion to fixed tradition, and an avoidance of concrete imperatives. I will briefly discuss each of these in turn.
One of the hallmarks of individual spirituality is a belief that enlightenment is something that is found through an ever-changing journey, not something that is handed to one in its final form. SBNRs may very well join fellow groups of spiritual seekers, find guidance in a mentor, guru, or life coach, read popular texts, and more, but this most likely makes them only part of something like the very loose “New Age” movement . Although certain beliefs are very popular within those circles—divination and karma, for example—there’s no guiding ethos to bring a particular truth to everyone else. In other words, intentional proselytizing to increase the adherents to a particular set of beliefs is not a characteristic of SBNRs. This means that growth is diffuse and inchoate, and the very fact that no institutional power or authority is supporting particular beliefs means that they lack political weight. And without political influence and organizational power, there’s very little push to have particular SBNR beliefs (whatever they might be) endorsed by the government.
Tied to SBNRs’ general resistance to recognizing spiritual authority is a lack of adherence to particular beliefs for the sake of tradition alone. Particular strands of spiritual traditions may “speak to” individual SBNRs, but it appears far less likely that SBNRs will adopt beliefs simply due to the accumulation of age and authority behind them. In Establishment Clause terms, this is important because so much of the litigation in the area concerns notions of tradition. We can think of battles over Ten Commandments monuments on public land, the practice of legislative prayer, or Sunday closing laws as all relating to contested notions of whether “tradition” (or “the practices of the founding generation” or “original meaning”) does or does not carve out an exception for long-standing practices that we would likely treat very differently if they were introduced today. The beliefs of SBNRs simply do not have this deep historical link to particular government practices or a claim that they are justified by unchanging tradition, and this means that particular spiritual beliefs are far less likely to be “grandfathered in” as an exception to Establishment Clause standards.
When we think of the major monotheistic religions, we might think of them as all having “thou shall” and “thou shall not” statements: thou shall pray facing Mecca, thou shall not eat milk and meat together, thou shall observe the Sabbath, and so forth. But when it comes to SBNRs, these types of imperatives are rarely if ever found. There may be general exhortations—“put out positive energy and it will come back to you,” for example—but we just don’t see the same sort of concrete commands or prohibitions. Because SBNRs do not subscribe to a hierarchical institution or a binding revelatory text, their beliefs are self-selected and more likely to be situational and contingent. And importantly for present purposes, they seem unlikely to manifest themselves directly in government policies .
In a recent article, Professor Mark Movsesian argues that the “Rise of the Nones” (the dramatic demographic increase in individuals who describe themselves as having no religion) in the United States will make reaching a consensus on religious freedom issues almost impossible:
Over the past two decades, American religion has become polarized between two groups, the Nones, who reject organized religion as authoritarian and hypocritical, especially with respect to sexuality, and the Traditionally Religious, who continue to adhere to organized religion and to traditional religious teachings, especially with respect to sexuality. Each group views the other’s values as threatening and incomprehensible. Neither is going away, and neither seems in a mind to compromise .
However, even if there is a coming crisis when it comes to religious freedom, the potential bright side of the “Rise of the Nones” could be gradually less intense battles over church and state. Establishment Clause issues tend to arise when a political system reflects inherent or explicit religious values to such a degree that lawmaking is affected. In American history, most Establishment Clause battles are over the appropriate place of generalized, non-denominational Christianity. But if the Nones—atheists, agnostics, and SBNRs—continue to rise demographically, one would expect their values would eventually be reflected politically. If for the reasons given above, SBNRs are less prone to having spiritual beliefs incorporated into government policy, the Rise of the Nones could become the Decline of Establishment.
SBNRs who do join a formal group with an established leader and set beliefs would be better thought of having joined an alternative minority religion—a “cult” in non-pejorative sociological terms—and thus transitioned away from being an SBNR.
 We could still envision some issues, however. For example, yoga is popular with many SBNRs and could be thought of as simply a wholesome routine of stretching and exercise, or as a direct incarnation of Hindu spiritual precepts. When yoga is taught in the public schools, this can create Establishment Clause questions. See, e.g., Sedlock v Baird, 185 Cal.Rptr.3d 739 (2015). Other concepts and practices common to many SBNRs—including meditation, “mindfulness,” the “mind-body-spirit connection”, and more–could potentially be interpreted as importing and endorsing spiritual beliefs if modelled in a classroom setting.
 Mark L. Movsesian, Masterpiece Cakeshop and the Future of Religious Freedom, 42 Harv. J. L & Pub. Pol’y 711 (2019), 73.