2012] NONBELIEVERS AND GOVERNMENT SPEECH 349
“Don’t Believe in God? You Are Not Alone.” This was only one of
dozens of atheist slogans on buses, trains, and billboards this past year.1
Atheism’s visibility in the United States is on the rise. Books by atheists
whose goal is to debunk religion have become bestsellers.2 Organizations for
nonbelievers are growing by leaps and bounds. Recent surveys show that the
number of Americans who identify themselves as not belonging to any
religion has doubled in the past twenty years.3 President Obama even
acknowledged nonbelievers in his inaugural address.4
At the same time, nonbelievers still make up a small minority in the
United States, and they remain disliked, distrusted, and not truly American
in the eyes of many. As a result, many atheists are hesitant to reveal their
religious views, and those who do risk discrimination and attack. After all,
the United States continues to be a deeply religious nation, and much of
American culture is steeped in religion, from our pledge declaring that we
are one nation “under God,” to our national motto proclaiming “In God We
Trust,” to our war memorials in the form of Latin crosses.5
Where does the Establishment Clause, which reads “Congress shall
make no law respecting an establishment of religion,”6 fit into this picture?
On the most general level, the Establishment Clause has been interpreted to
bar the state from favoring one or some religions over others and from
favoring religion over nonreligion. But what does this mean for
nonbelievers? What protection in particular should the Establishment
Clause provide for them?
The Establishment Clause was adopted to prevent several problematic
consequences that often followed state establishment of religion. First,
because civil strife, and even religious wars, tend to ensue whenever the state
favors one religion over others, the Establishment Clause protects the
stability of the civil society.7 Second, the Establishment Clause protects the
established religion from the corruption and degradation that so often
accompany alliance or involvement with the state.8 Finally, the
Establishment Clause protects those who do not share the established
religion’s beliefs, as persecution or discrimination may, and historically
usually did, follow when the state prefers one religion over others.9
1. See infra notes 53–66 and accompanying text.
2. See infra notes 34–42 and accompanying text.
3. See infra text accompanying notes 27–33.
4. See infra note 51.
5. See Salazar v. Buono, 130 S. Ct. 1803 (2010); Trunk v. City of San Diego, 629 F.3d
1099 (9th Cir. 2011).
6. U.S. CONST. amend. I.
7. See infra notes 207–09 and accompanying text.
8. See infra notes 210–12 and accompanying text.
9. See infra notes 213–15 and accompanying text.