Atheists & Rights
Jonathan Rowe on Jan 8th 2008
“Government has no Right to hurt a hair of the head of an Atheist for his Opinions. Let him have a care of his Practices.”
– John Adams to John Quincy Adams, June 16, 1816. Adams Papers (microfilm), reel 432, Library of Congress, quoted in James H. Hutson, “The Founders on Religion,” p. 20.
A reader asked whether any of America’s Founders thought atheists ought to have rights. Yes, generally speaking they took Locke’s notions of unalienable rights and extended them beyond Locke’s initial conception which excluded atheists and Roman Catholics. Men of all religions or no religion at all had a right to freely practice their faith (consistent with the secular law). And unalienable rights further extended to some kind of substantive notion of equality. From my reading of the primary sources, it was an equal right to government benefits or to be free from religious establishments that hurt them in the pocketbook or in some tangible way. For this reason, Madison and Jefferson thought Patrick Henry’s Virginia bill to provide financial aid to the “Christian religion” generally violated natural rights. They believed government could not aid one religion over another, or even aid “religion” over secular interests.
However, I endorse the conclusions of Philip Munoz and Justice Thomas that Jefferson and Madison believed if government provided aid on secular grounds (ala vouchers) such a natural right to equality would demand government not exclude religious interests from the secular program.
The other approach Washington, John Adams, and others endorsed held government could aid Christianity only, but because non-Christians by nature had unalienable rights, they were entitled to some kind of accommodation or exemption from programs that used tax dollars to benefit a religion in which they didn’t believe.
As Washington put it, discussing the very same Patrick Henry’s VA Bill that aided teachers of the “Christian religion”:
I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denomination of Christians; or declare themselves Jews, Mahomitans or otherwise, and thereby obtain proper relief. As the matter now stands, I wish an assessment had never been agitated, and as it has gone so far, that the Bill could die an easy death;… [My emphasis.]
Thus the general principle is the same: Men of any or no religion have an unalienable right to equality or “equal rights” in regard to religion. How government must act to secure those rights is something over which reasonable minds can differ. Regarding actual aid (meaning government funds) or legal penalties or privileges the answer seems quite simple: Government cannot treat atheists any different than theists or Christians and vice versa.
However, when it comes to government simply speaking or using its words, the matter is a bit more complicated because one can reasonably argue, “where’s the harm?” If government says “under God,” “under Jesus,” “under Allah,” “under no God,” “under the Flying Green Spaghetti Monster,” how do those words hurt such that it rises to the level of a constitutional issue?
When there are no actual religious exercises in which folks are expected to engage like “In God We Trust,” I think the doctrine of ceremonial theism ought to trump (akin to government reading out loud the Declaration of Independence). I might even go further and say government can say whatever it wants on religious matters, including for instance Utah stating “we are the Mormon State,” or Vermont stating “we deny the Trinity,” or Alabama “Jesus is Lord,” provided those governments still respect everyone’s equal rights. Or it’s possible that governments that officially make such sectarian overtures cannot possibly equally respect the rights of those who don’t believe in them. But again, I would point out that though America’s Founding theology is not Christian or even “biblical,” it is generically theistic. If generic theism is sectarian, the Declaration and other natural rights documents make sectarian overtures.
What makes the pledge more difficult is that it involves an actual exercise in which all school children are expected to engage. As it currently stands, a long line of Supreme Court cases, notably West Virginia v. Barnett properly hold that students have a constitutional right not to pledge the flag, which means if an atheist student wants to keep her mouth shut when the class says “under God,” sit down and not salute the flag or leave the room altogether she would have that right (this seems closer to the accommodation that George Washington would give).
I remember one Jehovah’s Witness in middle school taking advantage of his rights ala Barnett; he sat down during the pledge and did stick out.
Perhaps, for a variety of reasons — sticking out like a sore thumb, taunts, peer pressure — that kind of accommodation is not sufficient. One commenter remarked that the “under God” in the pledge is like making atheists sit on the back of the bus. Is their analysis proper, or is this melodrama? My mind isn’t made up; though I’m on the fence as a constitutional matter, as a policy matter, I’d remove the “under God” because it’s disrespectful towards atheists and polytheists.
Filed in The Belfry, The Bench, The Bureau
[...] Jonathan Rowe fra Positive Liberty stiller skarpt på religiøse og ikke-religiøses rettigheder i USA. Men mere end det, så er det en fin gennemgang af den amerikanske forfatnings modificerede Lockiske princip om ukrænkelige rettigheder. Og netop derfor er Rowes indlæg aktuelt ikke blot for amerikanere, men også for os danskere. Thus the general principle is the same: Men of any or no religion have an unalienable right to equality or “equal rights” in regard to religion. How government must act to secure those rights is something over which reasonable minds can differ. Regarding actual aid (meaning government funds) or legal penalties or privileges the answer seems quite simple: Government cannot treat atheists any different than theists or Christians and vice versa. [...]
Separation of Church and State is very simple:
The State does not endorse any religion (including atheism and humanism) and the State does not prohibit any religion. Don’t make it more complicated than it is! Don’t endorse evolution, don’t prohibit it. Don’t endorse Christianity, don’t prohibit it (in the law)! Private citizens are able to choose for themself. Keep the government out of our hair!
“Unalienable”? Surely, you must mean inalienable!
The problem I have with your approach is that it is an unbalanced application of the neutrality standard. You think it is important to apply the neutrality standard with regard to funding but then you are much more reluctant to apply the same standard with regard to government expression. I have no problem with applying a neutrality standard to government funding provided it is balanced with the same standard for government expression. If the court agrees with your two standards approach then it becomes difficult for me to criticize the “separationists” who don’t want any government funding because in the larger context the neutral government funding is not balanced by overall government neutrality.
There is a major difference between the “relief” being offered to a Jehovah Witness and a person, who believes that reciting “one nation under God” in the Pledge turns the pledge into a religious catechism with which he can not agree. In the JW case, their position is based on Phil 3:20 “For our citizenship is in heaven … ,” and Mt.5:33-37. Non-observance for a JW allows them to distinguish their citizenship as not being affiliated with any man made kingdom. For the atheist, and many other good citizens, the problem is dragging God into what is supposed to be a patriotic exercise for all citizens.
This is the context of my “sitting in the back of the bus” comment:
Rowe>Perhaps as an atheist we[Is this "we" the government?] can come forth with a standard where you/atheists feel comfortable with “under God.” Perhaps “God” can be a metaphor for natural rights or what you value in the American political system?
Ray>You might as well have asked Rosa Parks whether she could “feel comfortable” sitting in the back of the bus.
The fundamental problem is - how, in the name of the Constitution, is the government able to come up with a normative definition for who/what God is? Where’s the implied power to do so? Is it patriotic, is it pedagogical, is it ceremonial deism? As Reinhardt indicated, the pledge will still be a patriotic exercise, our currency will still function as a commercial instrument, and oaths in the courtroom are still valid when they appear without God. It’s obvious, the case against Newdow is designed to keep atheists in the back of the bus.
Kim Curtis, AP>”Judge Carlos Bea, meanwhile, peppered Newdow with tough questions suggesting he believes the pledge can be recited as is. Bea referred to the fact that the pledge is voluntary because the law forbids schools from forcing children to recite the pledge if it is against their beliefs. ‘What’s wrong with a child stepping outside the classroom and not participating in the pledge?’ Bea said to Newdow.”
Ray>If a child is, according to Judge Nelson, “privileged” to step outside the classroom during the pledge, then the end result is exactly like granting a black person the “privilege” of stepping to the rear of the bus. The wrong is in the very act whereby the government divides its patriotic citizens into two different groups by distinguishing one citizen group from another.
Now, is this “melodrama”? I don’t think so.
Also immediate “taunts, peer pressure” against atheists is not a complete measure of the problems caused by the wording of the Pledge, although that has happened. The larger problem with the wording of the Pledge is the impact it has on some theists. The Pledge appears to provide government support to those who are prejudiced against atheists. I don’t think we can just shrug our shoulders and disregard that government implicates itself in the widespread prejudice against atheists in our society when it enacts patriotic laws and rituals with monotheistic content.
The problem I see with this analysis is its focus on rights. While the free exercise clause clearly addresses rights, the establishment clause equally clearly doesn’t. And although the EC is the de facto “protector” of atheist rights, it achieves that objective indirectly by constraining government action. Thus, the argument “if a government action doesn’t inhibit rights, then it’s OK” ignores the EC’s broader direct objective in favor of a narrower indirect one.
Now, one may accept or reject any specific argument re the meaning of “establishment” et al or re incorporation, but that’s the tack one should take. And in doing so, one may accept or reject the Lemon and/or endorsement tests. But if one does accept either, IMO this whole genre - 10C, pledge, opening prayers, currency, et al - is a no-brainer. I see SCOTUS’s creation of “ceremonial deism/theism” as just acknowledging that sometimes “truth” is more trouble than it’s worth (think “does this make me look fat”). That may be pragmatic, but it has nothing to do with addressing the legal issue theoretically for the purpose determining one’s own (hopefully) intellectually coherent position.
On the specific issue of the pledge, I would guess that for many, implicit in “under God” is (among other things) “under God’s law”. If that’s correct, then McCreary might help in determining a coherent position. It would seem to me inconsistent to support the McCreary opinion and also to argue for the phrase being allowed in the pledge even if recited “voluntarily”. After all, one doesn’t have to read a 10C posting, and in any event, those making that choice in a courthouse are unlikely to be coercively assembled children subject to peer pressure.
- Charles
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