Constitutional Law

How Can Nonbelievers Defend Themselves Against Religious Persecution?

Religious fear and hatred of nonbelievers is real, the question is whether legal mechanisms exist that nonbelievers can utilize to defend themselves. 

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Last Thursday was the National Day of Prayer, which President Joe Biden celebrated by giving this speech that, in part, stated:

Today, we remember and celebrate the role that the healing balm of prayer can play in our lives and in the life of our Nation. As we continue to confront the crises and challenges of our time — from a deadly pandemic, to the loss of lives and livelihoods in its wake, to a reckoning on racial justice, to the existential threat of climate change — Americans of faith can call upon the power of prayer to provide hope and uplift us for the work ahead. As the late Congressman John Lewis once said, “Nothing can stop the power of a committed and determined people to make a difference in our society. Why? Because human beings are the most dynamic link to the divine on this planet.”

I don’t know about you, but that all seems like fairly innocuous stuff to me. A rather ordinary or benign religious speech. Yet, right wing media, and conservatives voices, have repeatedly responded to this speech with outrage. What is all the hubbub about, you might ask? The answer — brace yourself — is that Biden did not use the word “God.” Never mind that use of “the divine” in the above cited passage was, for all intents and purposes, synonymous with the word “God.” And never mind that in voicing his disapproval Franklin Graham (unintentionally), discredited the whole outrage fest he was indulging by acknowledging that when one talks about the power of prayer in this context they are rather obviously referencing praying to “God” because, in Graham’s words, there is literally “no one else to pray to.”

Although it is super easy to dunk on this stuff, there is a larger — and absolutely serious — problem underlying it. Due to an ever decreasing and rapid decline in religion, religious Americans have become more paranoid, tense, and angry at even harmless things like Biden’s speech. The result is that anyone who does not profess belief is being targeted, and not just in rhetorical form.

For example, in Texas an organization of nonbelievers (the Freedom From Religion Foundation) has been waging a six-year fight against the state government for censoring the organization’s Winter Solstice display in the Capitol building. A display that merely commemorated the “birth” of the Bill of Rights by depicting the Founding Fathers and the Statue of Liberty crowded adoringly around a manger scene containing the constitutional document. To Texas Gov. Gregg Abbott, however, the display represented an offense against Christianity. Again, the question you might be asking yourself is … why? Because nonbelievers were the ones trying to display it, so of course it could only be perceived as an attack on religion. But if government censoring a display depicting the Founders, the Statute of Liberty, and the Bill of Rights simply because the creators don’t have the same religious beliefs as those in control of state government sounds unlawful to you, that’s because it is.

In their original complaint against the Texas government, FFRF recounted a long history of animus by Abbott toward nonbelievers collectively. In one instance, Abbott had gone on Fox News and stated, “Our message to the atheists is don’t mess with Texas.” Characterizing Abbott’s statements as bigoted should not be difficult. Imagine if a Democrat governor had said “Our message to Christians is don’t mess with [California] or [New York].” Do you think Abbott or conservatives in general would hesitate in labeling that governor a bigot? Would they be wrong for doing so? Keep in mind, these folks are outraged that an overtly religious speech by Biden didn’t have the exact word they wanted.

Another thing to keep in mind, Abbott claims CaNcEl CuLtUrE is “dangerous.” But somehow, censoring Americans because they don’t share the governor’s religious beliefs is all perfectly well and good. It should also be easy to characterize Abbott as a hypocrite.

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Although the FFRF ultimately prevailed against Abbott in court, as I have discussed before, the courts, in particular the federal court system, are not a reliable institution when it comes to religious freedom. For example, the fact that a federal court has upheld a Texas state ban on nonbelievers from performing the private job of a wedding celebrant is deeply disturbing. Government requiring citizens to hold certain religious viewpoints in order to be licensed to provide a private commercial service (including for nonbeliever customers who may not want religious celebrants performing their weddings) seems like a pretty clear-cut case of viewpoint discrimination. But alas, this is nonbeliever hating Texas after all. You cannot expect a lot.

Indeed, even taking into account FFRF’s recent victory things on the legal front do not seem to be getting better for nonbelievers. Overall, matters are far worse. The long-standing doctrine that government must take a neutral position when it comes to religion has recently come under direct assault (including by someone who now sits on the Supreme Court). Now, we are seeing federal courts declare that the First Amendment allows government to favor religion above all other viewpoints.

So where can nonbelievers turn if federal courts are abandoning the First Amendment principle of viewpoint neutrality? The logical answer might be to turn to the states.

In fact, states like Montana have recently enacted laws drawn from the federal Religious Freedom Restoration Act (RFRA) example that, at first glance, might seem to bolster free-conscience protections. Montana’s version provides “a claim or defense to a person or persons whose exercise of religion is substantially burdened by state action.” But herein lies the rub, it is not inconceivable that a state court (or a federal one) could declare that nonbelievers were never intended to be included in such a law, and thus cannot utilize such a claim or defense.

Say two individuals are separately charged with violating a state law that prohibits giving food and water to people waiting in line to vote in a state that also has a RFRA statue. Let’s also assume that one of these individuals claims their motive for providing food and water was religious-based while the other claims they were motivated by secular reasons (such as a deeply held belief that voters of every stripe should not have to go hungry or thirsty when they are voting). Given there are now multiple decisions at the federal level holding there is no violation to the First Amendment when the state expressly favors religious citizens over nonreligious ones, a state court could find ample justification to decide that only religious citizen can be included in state RFRA claims or defenses. Meaning religious citizens could be considered immune from the law while the nonreligious citizen could be punished to the fullest extent, even when both have committed the exact same violation.

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To be sure, granting the religious, and only the religious, an exemption from general applicable laws would seem to violate the constitutional guarantee of equal protection. But as I cited above, the concept of neutrality or equality under the law is under direct attack by our courts. It is past time to acknowledge there may no longer be any viable mechanism (other than peaceful protest) that nonbelievers can turn to when the state targets them for disfavor.

In an effort to keep things in perspective, it should be acknowledged that nonbelievers are certainly not facing the kind of horrendous discrimination other marginalized groups of Americans have faced in the past. As FFRF has demonstrated, nonbelievers may even get a rare victory here and there. But who is the most persecuted should not be a contest, and the type facing nonbelievers is shameful and contemptible without the need of comparison. Just don’t expect it to go away any time soon, expect it to keep getting worse.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

 

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