In God We Trust

Is Atheism Religion Under the First Amendment’s Religion Clauses?

It is not uncommon for philosophers and social commentators to refer to any overarching belief system as a religion.  For example, just out from Daniel Mahoney is The Idol of Our Age:  How the Religion of Humanity Subverts Christianity (2018), in which he argues that secular humanism is treated as ultimate truth by many and, in that sense, becomes a “religion” in competition with Christianity.

Before the United States Court of Appeals for the Third Circuit currently is the question of whether atheism is covered as religion as the term is used in the Religion Clauses of the First Amendment:  “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .”  The district court, in Fields v. Speaker of the Pennsylvania House of Representatives (M.D. Pa.), held that atheism qualified as religion in a constitutional sense and so, when the Speaker refused to allow non-theists to give the invocation before a daily legislative session, he was discriminating against atheism and other non-theistic belief systems in violation of the Establishment Clause.  The evidence is overwhelming, however, that religion, as originally understood by both the public and the framers as used in the First Amendment, did not include atheism, and so the district court was mistaken.

The Constitution is, of course, a legal document, and the common, legal usage of terms when it was adopted are highly persuasive evidence.  Blackstone’s Commentaries, published in the 1770’s and widely in use in the colonies, has an entire chapter entitled “Of Offenses Against God and Religion.”  Foremost among those are laws forbidding atheism and other non-theistic heresies.  Religion was understood to be inextricably linked to theism.  Similarly, Noah Webster’s first compilation of American English in 1823 defined religion as involving the worship of God (and modern dictionaries in their listings do the same as the most common definition).

There is further proof from the drafting history of the Religion Clauses, as the framers during the debates rejected a formulation that would have expanded protections to atheists.  Madison originally proposed that “freedom of conscience” be included in the Bill of Rights, but others objected that such a provision would endanger true, theistic religion and protect atheists.  Madison’s broader language protecting conscience was passed by the House, but it was rejected by the Senate and by the conference committee and so never found its way into the Bill of Rights.

Finally, the founders and framers frequently noted the critical importance of the belief in a Divine Sovereign and Judge in inculcating the proper attitudes of self-denial and cooperation in the populace, attitudes necessary to the functioning of the experiment in representative democracy they set up in the Constitution.  President Washington’s Farewell address is the most famous, but only one, of the expressions of that belief.

In sum, the Religion Clauses of the First Amendment do not regard atheism as a religion.  Atheists do not have a constitutional heckler’s veto over any expression of theistic religion in the public square, nor do they have a right to say their version of “prayers” before legislative sessions because theists are requested to do so.

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