Alan Payne, Redefining ?atheism? in America: What the United States Could Learn from Europe?s Protection of Atheists

• Jurisdiction: United States,Federal,European Union
• Citation: Vol. 27 No. 1
• Publication year: 2010
• topic: Civil Rights,Constitutional Law

REDEFINING “ATHEISM” IN AMERICA: WHAT THE UNITED STATES COULD LEARN FROM EUROPE’S PROTECTION OF ATHEISTS

ABSTRACT

There continues to be a pervasive and persistent stigma against atheists in the United States. The current legal protection of atheists is largely defined by the use of the Establishment Clause to strike down laws that reinforce this stigma or that attempt to deprive atheists of their rights. However, the growing atheist population, a religious pushback against secularism, and a neo- Federalist approach to the religion clauses in the Supreme Court could lead to the rights of atheists being restricted. This Comment suggests that the United States could look to the legal protections of atheists in Europe. Particularly, it notes the expansive protection of belief, thought, and conscience and some forms of establishment.

INTRODUCTION 663

1. ATHEISM IN AMERICA 667

   1. What Is Atheism? 667

   2. The Stigma 669

   3. Legal Protection of Atheists in the United States 673

2. CHANGING CIRCUMSTANCES 676

   1. Growth of Atheism in America 676

   2. Unification of Atheists 678

   3. “New Atheism” 679

   4. Religious Pushback 681

   5. Neo-Federalist Movement To Unincorporate Religious Clauses 682

   6. Implications 683

3. LEGAL PROTECTION OF ATHEISTS IN EUROPE 685

   1. The Universal Declaration of Human Rights 686

   2. The International Covenants 687

   3. The Declaration on the Elimination of All Forms of Intolerance Based on Religion or Belief 688

   4. General Comment 22 689

   5. How These Principles Are Applied in Europe 690

4. THE ADOPTION OF THE EUROPEAN MODEL 692

   1. Why Look to International Law? 693

   2. How These Guideposts Would Be Received 695

   3. How the European Guideposts Would Be Implemented 696

   4. Other Positive Solutions 699

CONCLUSION 701

INTRODUCTION

Atheism, the belief in no god or gods,1 has for the vast majority of recorded history been despised, stigmatized, and oppressed.2 It was not until the 1960s that atheism began to spread.3 The post-World War II era also saw an international shift in focus from the protection of group rights to the protection of fundamental individual rights, such as freedom of religion.4 The respective legal systems of the United States and the emerging European Community responded to this new human rights paradigm and the growth of atheism in different ways. The United States, which already had nearly two centuries of religious liberty jurisprudence, attempted to craft a new interpretation of the religion clauses of the Constitution to protect both religion and non-religion equally.5 Europe was attempting to create a new supranational identity, and looked to principles being developed by the greater international community.6 In the United States today, however, a growing, more unified, and more vocal atheist population, religious pushback against secularism, and a neo-federalist approach in the Supreme Court could threaten to make the American model untenable in the future.7 Instead, the continued legal protection of atheists’ rights in the United States would be best accomplished by looking to the guiding principles from the international framework on religious liberty as adopted by Europe.8

1. A more thorough definition will be developed in Part I.A.

2. See Jan N. Bremmer, Atheism in Antiquity, in THE CAMBRIDGE COMPANION TO ATHEISM 11, 11 (Michael Martin ed., 2007) (explaining that, throughout history, atheists have been dissenters, and critics have accused others of atheism to discredit them).

3. Gavin Hyman, Atheism in Modern History, in THE CAMBRIDGE COMPANION TO ATHEISM, supra note

   2, at 27, 32.

4. W. COLE DURHAM, JR. & BRETT G. SCHARFFS, LAW AND RELIGION 79 (2010); Steven G. Gey, Atheism

   and the Freedom of Religion, in THE CAMBRIDGE COMPANION TO ATHEISM, supra note 2, at 250, 250.

5. See, e.g., Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-

   believers.”).

6. MARK WESTON JANIS & JOHN E. NOYES, INTERNATIONAL LAW CASES AND COMMENTARY 428 (4th ed.

   2011).

7. These changing circumstances will be detailed more thoroughly in Part II.

8. While this Comment will often refer to Europe, it is limited primarily to the member states of the European Union (“EU”) and nations party to the European Convention for the Protection of Human Rights and

   Fundamental Freedoms (“ECHR”). Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, E.T.S. No. 5 (entered into force Sept. 3, 1953) [hereinafter ECHR].

   The current legal protection of atheists in the United States is largely defined by the use of the Establishment Clause9 to strike down laws that indirectly reinforce a pervasive and persistent stigma against atheists.10 The United States has long been hailed as a land of religious freedom and tolerance,11 a proposition borne out by the broad legal protections offered by

   the Constitution12 and the growing acceptance of people of various faiths by American society.13 However, despite this broad protection of religious belief and the general religious tolerance of American society, atheists remain among the most despised minorities in the United States.14 While this stigma has not resulted in many forms of direct government oppression in recent times,15 the

   stigma is reinforced by overt or implicit religious endorsements16 that serve to both ostracize atheists and convey to the religious majority that atheists are disfavored.17 The Establishment Clause currently provides the best legal mechanism for combating this discrimination by striking down laws that do not pass muster under the prevailing Lemon test.18 However, the use of the Establishment Clause will increasingly become inadequate as the Supreme

   
   

9. U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion . . . .”).

10. Gey, supra note 4, at 262.

11. See JOHN WITTE, JR. & JOEL A. NICHOLS, RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT xx (3d ed. 2011).

12. U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”). These two clauses are referred to as the Establishment Clause (or the Non-Establishment Clause) and the Free Exercise Clause. JEROEN TEMPERMAN, STATE–RELIGION

    RELATIONSHIPS AND HUMAN RIGHTS LAW 116 (2010).

13. See Penny Edgell et al., Atheists as “Other”: Moral Boundaries and Cultural Membership in American Society, 71 AM. SOC. REV. 211, 212–14 (2006).

14. Id. at 230 (“Atheists are at the top of the list of groups that Americans find problematic in both public and private life, and the gap between acceptance of atheists and acceptance of other racial and religious minorities is large and persistent.”).

15. Gey, supra note 4, at 259 (“Legal protection of atheism and atheists is now the norm in modern Western constitutional democracies.”). But see Eugene Volokh, Discrimination Against Atheists, VOLOKH CONSPIRACY (Aug. 29, 2005, 3:16 PM), http://volokh.com/posts/1125342962.shtml (arguing that legal discrimination occurs in U.S. child custody cases based on the religiosity of the parent).

16. One of the most contentious examples is the phrase “under God” that was inserted into the pledge of allegiance in 1954. 4 U.S.C. § 4 (2006). A challenge to the phrase made it to the Supreme Court, but failed on

    standing grounds. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17–18 (2004). In response to the Ninth Circuit ruling that prompted the Supreme Court to grant certiorari, Congress passed a bill reaffirming the use of the phrase and encouraging schools and public buildings to display the pledge. H.R. REP. NO. 107-659, at 5 (2002), reprinted in 2003 U.S.C.C.A.N. 1304, 1305.

17. Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J., concurring in the judgment); Gey, supra

    note 4, at 262.

18. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); DURHAM & SCHARFFS, supra note 4, at 141 (stating that, although widely criticized, this three-pronged test is still often used by the lower federal courts to evaluate Establishment Clause cases).

    Court continues to shy away from aggressively applying the religion clauses to the states19 and as the American atheist population grows.20

    
    

    The model employed in Europe offers a different approach to the legal protection of atheists, and can provide some guiding principles to aid the United States in ensuring continued legal protection for atheists in America. Following World War II, the birth of the United Nations and the focus on individual human rights were accompanied by the formation of the Council of

    Europe in 1949.21 The Council of Europe produced the European Convention

    for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) in

    1950.22 The ECHR, acting as a European Bill of Rights, drew many of its provisions from international sources23 and Article 9, which protects freedom of religion or belief,24 “is almost identical to Article 18 of the Universal Declaration of Human Rights.”25 In contrast to the United Nations, however,

    the European human rights system established more robust enforcement mechanisms.26 This human rights system now covers more 900 million people in forty-seven countries,27 and is widely recognized as one of the most, if not the most, effective human rights organizations in the world.28

    
    

19. This movement is largely referred to as “deincorporation,” because the Court would be in effect or reality reversing the selective incorporation of the religion clauses via the Fourteenth Amendment. WITTE & NICHOLS, supra note 11, at xxi, 95, 126; James J. Knicely, “First Principles” and the Misplacement of the “Wall of Separation”: Too Late in the Day for a Cure?, 52 DRAKE L. REV. 171, 174 n.15 (2004) (listing a thorough collection of the academic calls for deincorporation); John Witte, Jr., Facts and Fictions of Separation of Church and State 5–6 (Mar. 2, 2005), available at http://cslr.law.emory.edu/fileadmin/media/...