Nonbelievers and Government Speech

• Author: Caroline Mala Corbin
• Position: Associate Professor of Law, University of Miami School of Law
• Pages: 347-415

347

Nonbelievers and Government Speech

Caroline Mala Corbin

ABSTRACT: In the past few years, nonbelievers have become much more

prominent in the United States. But while their visibility has increased, they

are still a small minority, and they remain disliked, distrusted, and not

truly American in the eyes of many. As a result, many nonbelievers are

hesitant about disclosing their views, and those who do often face hostility

and discrimination.

This Article argues that 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. It undermines the

equality of nonbelievers by sending the message that they are not worthy of

equal regard and by reinforcing stereotypes—in particular, that atheists are

immoral and unpatriotic—which leads 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. 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.

 Associate Professor of Law, University of Miami School of Law; B.A., Harvard

University; J.D., Columbia Law School. I would like to thank Joseph Blocher, Beth Burkstrand-

Reid, Aaron Caplan, Anthony Colangelo, Mary Coombs, Charlton Copeland, Mike Dorf, Steven

B. Epstein, Michael Froomkin, Abner Greene, Leslie C. Griffin, Rachelle Holmes, Hoi Kong,

Helen Louise Norton, Tali Schaefer, Nelson Tebbe, Frank Valdez, and Jonat han Witmar-Rich

for tremendously useful comments. I would also like t o thank the participants of the Annual

Law & Religion Roundtable, the Case Western Law Review Symposium on Government Speech,

the Vanderbilt University Law School Faculty Workshop, and the Cornell Constitutional Law &

Theory Colloquium. Finally, thanks to Barbara Brandon, Colleen Del Casino, and Michael Holt

for excellent research assistance, and to Michael Cheah for impeccable editing.

348 IOWA LAW REVIEW [Vol. 97:347

I. INTRODUCTION ...................................................................................... 349

II. NONBELIEVERS AND THE ESTABLISHMENT CLAUSE ............................... 352

A. THE RISE OF NONBELIEVERS ............................................................. 352

1. Different Types of Nonbelievers ........................................... 352

2. Growth of Nonbelievers ......................................................... 353

3. Discrimination Against Nonbelievers ................................... 357

4. Persistent Distrust of Nonbelievers ....................................... 363

B. PERSONAL STORIES OF NONBELIEVERS ............................................... 369

1. A Story of Political Exclusion ................................................ 369

2. A Story of Social Ostracism .................................................... 370

3. Stories of Hiding .................................................................... 372

C. PURPOSES OF THE ESTABLISHMENT CLAUSE ....................................... 375

III. THE EQUALITY COMPONENT OF THE ESTABLISHMENT CLAUSE ............. 378

A. EXPRESSIVIST HARM TO EQUALITY .................................................... 380

1. Social Meaning as a Constitutional Injury ............................ 382

2. Determination of Social Meaning ......................................... 385

a. Messages of Inequality? ....................................................... 386

b. Religious Messages at All? .................................................. 388

B. MATERIAL HARM TO EQUALITY ........................................................ 392

1. Perpetuating Discrimination ................................................. 392

2. Attributing Discrimination to the State ................................ 394

3. How Government Religious Speech Perpetuates

Stereotypes .............................................................................. 398

IV. THE LIBERTY COMPONENT OF THE ESTABLISHMENT CLAUSE ............... 400

A. HARM TO CONSCIENCE ..................................................................... 401

B. HARM FROM COERCIVE GOVERNMENT RELIGIOUS SPEECH .................. 403

C. HARM FROM PASSIVE GOVERNMENT DISPLAYS ................................... 405

D. BALANCING GOVERNMENT INTERESTS AND HARMS TO

NONBELIEVERS ................................................................................. 408

V. CONCLUSION ......................................................................................... 415

2012] NONBELIEVERS AND GOVERNMENT SPEECH 349

I. INTRODUCTION

“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.