2011-11-10 12:31:39

Although the first two clauses of the First Amendment concern the establishment and free exercise of ‘‘religion,’’ the amendment long has been understood to protect the liberty and equality of nonbelievers. The amendment comprehends ‘‘the infidel, the atheist’’ as much as ‘‘the adherent of a non-Christian faith’’ and ‘‘the Court has unambiguously concluded that the individual freedom of conscience protected . . . embraces the right to select any religious faith or none at all’’ (Wallace v. Jaffree, 472 U.S. 38, 1985, 52–53). The presence in the United States of a substantial minority that disclaims religious belief thus has helped maintain an expansive interpretation of the protections afforded by the amendment that extends beyond religion per se to include a broader realm of individual conscience.

The term ‘‘Atheism’’ is a contentious one. In general, it indicates the lack of belief in God, gods, or other divine beings or principles. Its exponents range from those who actively disparage religious ideas as false and incompatible with progressive human emancipation to agnostics, who dispute the possibility of ascertaining the existence of the divine and so forswear religious belief. The U.S. Census Bureau states that, in 2001, 14 percent of respondents asked to identify their religion reported having none, a figure that would indicate a nonbelieving population of about 29.4 million. Other surveys have estimated that American atheists fall between 6 and 9 percent of the American population; a minority have offered figures as low as 3 and as high as 16 percent.

As a matter of national identity, atheists have historically held an ambiguous status. Many of the founders were deists, such as Benjamin Franklin and Thomas Jefferson, and they are claimed as ancestors of modern Atheism. Moreover, the Protestant context in which American conceptions of religious liberty developed placed special emphasis on safeguarding the individual conscience as the seat of voluntary religious choice, a position favorable to the protection of atheistic belief. James Madison’s ‘‘Memorial and Remonstrance’’ (1785) and Madison’s and Jefferson’s ‘‘Bill for Establishing Religious Freedom’’ (1786) sought to protect the free minds of nonbelievers at the same time that they protected those of Christians. Indeed, Jefferson’s foundational First Amendment metaphor, that a ‘‘wall of separation’’ had been built between church and state, was expressed in a letter solicited by a group of Baptists in Connecticut, highlighting the alliance between Enlightenment and evangelical thinkers in their mutual efforts to protect the self from coercion.

At the same time, the United States was founded by many who were deeply committed to their faith and sought to provide religious practice with special protection—not because it was a matter of individual conscience, but rather because of its status as religion. Notably, some of the great documents of American liberty, including the ‘‘Bill for Establishing Religious Freedom,’’ begin with an invocation of God. In this light, according to some, while the First Amendment prevents government from favoring one religious group over another, it by no means requires the state to maintain a neutral position between religion and nonbelief or to refrain from promoting religion generally. Within constitutional law, this position, labeled ‘‘nonpreferentialism’’ in contrast to the approach of ‘‘voluntarism and separatism,’’ has never gained a majority on the Court, though it represents the view of a powerful segment of the voting public, which has been inspired to organize, in part, to resist the challenge of Atheism and secularization.

While atheists once were subject to some legal disabilities based on their beliefs, they never experienced the systematic persecution faced by atheists in Britain, and those disabilities were fully eliminated in principle or practice over the course of the twentieth century as the First Amendment was applied to the states through the constitutional process of incorporation. Atheists today are competent witnesses in court; they do not fear prosecution for blasphemy and they need not swear a religious oath to serve in public office. Atheists have continued, however, to challenge two forms of public expression in which government can be said to prefer religion over nonbelief in violation of the Establishment Clause: prayer in public schools and those appeals to religion outside the school context often labeled ‘‘Ceremonial Deism.’’

Challenges to prayer in public schools have been consistently successful. In its inaugural analysis of the issue, the Court in Engel v. Vitale, 370 U.S. 421 (1962), prohibited the recitation of a daily nondenominational prayer; in Abington School District v. Schempp, 374 U.S. 203 (1963), it struck down the reading of verses from the Bible at the opening of the school day; in Wallace v. Jaffree (1985), it struck down a law authorizing schools to set aside a oneminute moment of silence for ‘‘meditation or voluntary prayer’’; and in Lee v. Weisman, 505 U.S. 577 (1992), it struck down a banally ecumenical invocation of God’s blessings at a high school graduation. Similarly, in Stone v. Graham, 449 U.S. 39 (1980), the Court struck down a law requiring the posting of the Ten Commandments in public school classrooms, and in Edwards v. Aguillard, 482 U.S. 578 (1987), it struck down a law requiring the teaching of ‘‘creation science’’ in classrooms that also taught evolutionary biology.

Challenges to the state use of nondenominational religious appeals outside the school context have met with mixed success. Some public religious holiday displays, such as nativity scenes, have been upheld against challenge, as in Lynch v. Donnelly, 465 U.S. 668 (1984), while others have not, as in County of Allegheny v. ACLU, 492 U.S. 573 (1989). As in most First Amendment litigation, the outcome of such cases has depended heavily on close scrutiny of the factual context at issue. Challenges to traditional invocations of the deity as an aspect of national civic culture—for instance, the use of the national motto ‘‘In God We Trust’’ on federal currency— have failed or are highly unlikely to succeed. When upheld, such religious appeals have been said to ‘‘have lost through rote repetition any significant religious content’’ and to be ‘‘uniquely suited’’ to achieve ‘‘such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge’’ (Lynch, 716–717).


References and Further Reading

  • Borden, Morton. Jews, Turks, and Infidels. Chapel Hill: University of North Carolina Press, 1984
  • Dorsen, Norman, The Religion Clauses and Nonbelievers, William & Mary Law Review 27 (1986): 5:863–873
  • Hartogensis, B.H., Denial of Equal Rights to Religious Minorities and Non-Believers in the United States, Yale Law Journal 39 (1930): 659–681
  • Laycock, Douglas, ‘‘Nonpreferential’’ Aid to Religion: A False Claim About Original Intent, William & Mary Law Review 27 (1986): 5:875–923
  • Zuckerman, Phil. ‘‘Atheism: Contemporary Rates and Patterns.’’ In The Cambridge Companion to Atheism, Michael Martin, ed. Cambridge: Cambridge University Press, 2007

Cases and Statutes Cited

  • Abington School District v. Schempp, 374 U.S. 203 (1963) 
  • County of Allegheny v. ACLU, 492 U.S. 573 (1989) 
  • Edwards v. Aguillard, 482 U.S. 578 (1987) 
  • Engel v. Vitale, 370 U.S. 421 (1962) 
  • Lee v. Weisman, 505 U.S. 577 (1992) 
  • Lynch v. Donnelly, 465 U.S. 668 (1984) 
  • Wallace v. Jaffree, 472 U.S. 38 (1985) 

See also American Civil Liberties Union; Americans United for Separation of Church and State; Bible Reading in Public Schools, History of before and after Abington School District v. Schempp; Defining Religion; Legislative Prayer; Lemon Test; No Coercion Test; No Endorsement Test; Prayer in Public Schools; Religious Symbols on Public Property; Scopes Trial; Secular Humanism and the Public Schools; Ten Commandments on Display in Public Buildings; Wall of Separation