Religion & American Law

This past Saturday, the organization American Atheists held an event, dubbed the Reason Rally, at the National Mall in Washington, D.C. Thousands of non-believers of all stripes, including atheists, agnostics, freethinkers, humanists, and secularists, converged on the nation’s capitol to draw attention to their growing numbers and hear from major voices within the movement, including rally headliner Richard Dawkins. The rally has been characterized not as an organized protest against religion, but as an effort to stand together in solidarity with other like-minded people. Many participants have taken to co-opting language from the LGBTQ community, describing the rally event as a “coming out” and an invitation for many “closeted” atheists and non-theists to stand up proudly for what they believe in.

David Silverman, president of American Atheists, argued in a recent opinion piece for the Washington Post that atheists and other non-theists have for too long remained silent in the face of a disapproving and even contemptuous religious majority. (The United States consistently polls as one of the most religious of the developed nations.) According to Silverman, non-theists are constantly reminded of the pervasive influence of religion in nearly every aspect of their lives, from paying for goods and services with currency emblazoned with religious language, to the news coverage of the Republican primary contest in which the candidates seem to be trying to “out-religion” each other, much to the pleasure and satisfaction of religious voters. Silverman hopes the Reason Rally will be the catalyst needed to encourage conversation about the marginalization and derision experienced by atheists and non-theists and effect the change necessary for the country to begin to treat them with respect, compassion, and equitability, both in legal conceptions and popular opinion.

At first glance, it may seem that atheists and other non-theists really have nothing to complain about. However, common conceptions and uncritical assumptions of American society as a fully secular nation that strictly enforces a “wall of separation of church and state” often obscure the difficulties with which secular ideals have actually been put into practice. Our current political moment has reached a saturation point, as religious groups continue to flex their influence and power in shaping state legislation and public policy. Even supposedly neutral Supreme Court Justices have publically intimated the inherently religious character of the United States. As Silverman argues in his guest post, the pervasive influence of religion in the public sphere can, to the non-religious observer, make it “seem that without religion you cannot be elected to public office, cannot be considered a moral or ethical person, or be considered a patriot.”

But how exactly are atheists experiencing oppression or second-class status from a legal standpoint, since simply being a minority voice does not necessarily mean there exists intentional or systematic disenfranchisement? If we look to the First Amendment’s religion clauses, particularly the free exercise clause, we may find a strong argument for the very real shortcomings of the legal system faced by and articulated by atheists and other non-theists. While the establishment clause is characterized as preventing religious groups and institutions from gaining significant influence over the government, the free exercise clause can best be conceived as an attempt to protect individual religious belief and, to a lesser degree, practice from excessive governmental intrusion or coercion. Thus, religious beliefs are often given special consideration, treated by the government and the courts as a protected category. This special status often takes the form of religious exemptions from legislative measures and public policies. Recently, religious groups have argued for, and been granted, exemption from certain mandates of the Patient Protection and Affordable Care Act having to do with providing access to contraceptive measures. Because the religious groups argued that contraception ran counter to their religious beliefs, they were granted exemptions from the otherwise applicable mandate. Were someone to petition for the same exemption based upon totally personal and non-religious reasons, it would be highly unlikely that exemption would be granted. Beliefs grounded in a religious tradition continue to have better currency in our present political and legal framework. If nothing else, Silverman and the American Atheists are right in arguing that the privileging of religion as a special status category has the effect of relegating non-theists to second-class citizens.

More adjustments have been made to President Obama’s healthcare mandate which demands all contraception be offered free of charge to the individual. The mandate originally stated employers must provide insurance which offers contraception at no cost to the individual. Last month, the mandate was adjusted so that the fiscal responsibility lay on the insurer rather than the employer. A few weeks ago, the Obama administration moved the financial burden once more from the insurer to the administrator of insurance to ensure that religiously affiliated universities will not have to “pay, arrange, or refer” contraception for students. Also as outlined in recent statements regarding the mandate, the exemption which previously applied only to houses of worship has been expanded to include other “religiously affiliated groups”. The requirements of qualifying groups include that the purpose of the group must be motivated by religious values, the group must primarily employ people who share in those beliefs, and the group must have a nonprofit tax exemption status. The most recent statements about the mandate also state that all students at religiously affiliated universities may still receive contraception at no cost through insurance companies, despite the moral objections of the universities.

Responses to these adjustments have come from bishops, the Department of Health and Human Services, and religious universities. Mary Ann Walsh, a spokesperson for the U.S. Conference of Catholic Bishops noted the administration’s disregard for their religious traditions by mentioning, “I’m surprised such important information would be announced late Friday on St. Patrick’s Day weekend as we prepare for the fourth Sunday of Lent”. Kathleen Sebelius, the Secretary of Health and Human Services, argues the adjustments to the mandate both respects the religious freedoms of the church and effectively provides women with affordable healthcare coverage. Steve Schneck, of the Catholic University of America seemed more appreciative of the Obama administration’s diligence in appeasing the Bishops, and suggests the Bishops should be happy about these changes. The final response from the US Conference of Bishops reiterated the religious liberties at stake, as well as the administration’s failure to include other religious entities in the exemption. The demand for all private health care insurers to provide contraception is still unreasonable and the exemption is still too narrow.

The Obama Administration’s decision to transfer the fiscal responsibility from the insurer to the administrator failed to appease the bishops in that the revision failed to include all religious entities, and therefore failed to address the concern of religious freedom of the church. The Department of Health and Human Services is looking to alleviate the financial concerns associated with the mandate and ensure that nonprofit religious groups are not held responsible in financially supporting the mandate. The U.S. Conference of Bishops is more concerned with what the mandate says and who it applies to, regardless of where the financial responsibility lays. For any progress to be made in appeasing religious groups, the Department of Health and Human Services will need to pay close attention to the grievances of the groups in opposition to the mandate rather than constructing compromises on fiscal foundations.

Last week, the Tennessee Senate passed legislation allowing “alternative” scientific theories to be taught in public schools essentially allowing creationism and other “pseudosciences,” as labeled by critics, to be taught in Tennessee science classrooms.  The law seems dangerous to opposition who claim that teaching theories that are largely denied by the scientific community threatens the proper education of students and poses a threat to the separation of religion and secular education.  To many, this legislation may seem to be a step backwards in the secularization of the public school system made during the 20^th century; however, a closer look at the judicial history of the matter reveals that Tennessee’s legislature may be an unexpected step towards greater educational freedom.