Equality, Liberty, and Nonbelievers: Why Government Religious Speech Violates the Establishment Clause
This will be my last blog, and it summarizes my current work in progress. Many, many thanks to Danielle Citron and the Concurring Opinions crew for inviting me!
In the past few years, those without religious belief, whether they consider themselves atheist, agnostic, humanist, secular, or freethinker, have become much more prominent in the United States. Books by atheists whose goal is to debunk religion have become bestsellers, and an atheist iPhone application has likewise found great success. Organizations for nonbelievers are growing by leaps and bounds. President Obama even acknowledged nonbelievers in his inaugural address.
But while their visibility has increased, nonbelievers are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. Social scientists have noted a consistent negative attitude towards atheists, and an assumption that atheists are immoral and unpatriotic. One study described atheists as “at the very top of the list of problematic groups,” noting that Americans are less accepting of atheists than any other group—and by a wide margin. As a result, many nonbelievers are hesitant about disclosing their views, and those who do can face hostility and discrimination.
Government religious speech such as “In God We Trust” or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the main goals of the Establishment Clause is to protect religious minorities like nonbelievers. Contrary to claims that government religious speech is essentially harmless, and that any offense it causes should not be considered of constitutional dimension, government religious speech harms both the equality and liberty of nonbelievers.
One way the Establishment Clause protects nonbelievers is essentially to serve as an Equal Protection Clause for religious minorities. As many scholars have noted, the Equal Protection Clause has an expressive component; so too does the Establishment Clause. Indeed, the Establishment Clause’s endorsement test attempts to capture the insight from Brown v. Board of Education that government action can send unacceptable messages of inequality. Government religious speech undermines the equality of nonbelievers by sending the message that they are not worthy of equal regard. While these messages are wrong in themselves, they cause tangible harm as well by reinforcing stereotypes—in particular that atheists are immoral and unpatriotic—which lead to discrimination against them.
The perpetuation of these stereotypes also undermines the liberty of nonbelievers by making them less willing, or even afraid, to follow the dictates of their conscience. By putting its power and prestige behind religion, the government not only pressures nonbelievers into conforming to mainstream religious beliefs, but also reinforces existing prejudice against nonbelievers, which can hinder nonbelievers from acting in accordance with their beliefs. In short, the claim that government religious speech does not violate the Establishment Clause because it only offends nonbelievers misunderstands exactly what is at stake.