Non-Sectarianism and Atheism in the Courts: the Fractured Separationist Response to The

Joseph Wuest 1

Non-sectarianism and Atheism in the Courts: The Fractured Separationist Response to the Religious Right

Much of the scholarship on American legal advocacy groups written in the past decade has focused on the rise of the Religious Right and its impact on American constitutional development. Notable works by scholars such as Steven Teles (2008), Ann Southworth (2008), Steven Brown (2002) have traced the institutional development of the Right’s litigation infrastructure as well as the resulting doctrinal effect these groups have had on American jurisprudence. The creation of litigation advocacy groups such as the American Center for Law and Justice and the Christian Legal Society have been instrumental in crafting Christian challenges to older conceptions of the appropriate relationship between religion and government that emerged from several decades of anti-sectarian litigation advanced primarily by American Civil Liberties Union, Americans United for the Separation of Church and State (AU),[1] and various minority religious organizations. Although much of this work on the rise of the Religious Right and other conservative legal organizations has deepened our understanding of constitutional development and the judiciary, it has also led to a neglect of the particulars and nuances of groups with more liberal and “high wall” of separation approaches to these constitutional issues.In assessing theseresponses to the rise of these conservative coalitions, the binary between religious and secular groups breaks down, providing a clearer look into the diverse—and often conflicting—strategies and goals among secular advocacy organizations.

In differentiating within the broader secular distinction here, I identify the first of these organizations as the “old coalition” of separationist groups[2], which has been led predominately by the ACLU, AU, and the American Jewish Committee. These organizations came to prominence during the early to mid-twentieth century in their challenges to government aid to particular denominations, especially Catholic ones, as well as the championing of minority religious rights, most notably the rights of Jehovah’s Witnesses.[3] As a result, these groups have principally articulated their responses to what they perceive to be violations of the Constitution perpetrated by Christians.[4] Although groups like the ACLU have a long history of being accused as predominately atheist-oriented by its opponents, the path dependent, historical nature of its position in these disputes has constrained the ACLU from opposing every and all instances of church-state relations (Pierson, 2004).

In contrast to this older alliance, challenges to the Religious Right have also been led by self-proclaimed secular organizations such as the Freedom From Religion Foundation (FFRF), the American Atheists (AA), and the conglomerate Secular Coalition for America (SCA).[5] This “new coalition” of groups has been much more actively anti-religion in its pursuit of litigation without sensitivity to or support for any religious faith whether or not it has been the subject of discrimination. While several of these groups were founded before the rise of the Religious Right, many scholars and commentators have attributed the exponential growth of some of these organizations in the last decade as a response to the recent legal and policy achievements of conservative Christians.[6] Others have emphasized the significance of the terrorist attacks on September 11, 2001 as a driving cause of this mobilization as many members of these groups and their celebrity leaders in the academy such as Richard Dawkins have called for a new era of science and rationalism to combat what they perceive to be religious extremism.[7]

Assessing the response to the litigation of the Religious Right involves tracing and evaluating the similarities and differences in the historical development of these litigation coalitions and their legal strategies and doctrinal approaches to what they perceive to be violations of the separation of church and state. By examining several areas of advocacy pursued by both coalitions, I demonstrate that one of the key differences between these coalitions lies in the conceptualization of principles such as neutrality and pluralism. Whereas the ACLU has historically aligned itself with religious minorities as well as secularists in an attempt to create a neutral state that accommodates various forms of religious expression without allowing one particular sect to dominate, the new coalition has repeatedly emphasized that nearly any accommodation of religion violates the government’s duty to be neutral toward religion and rigidly secular in all of its conduct. These disparate approaches to neutrality and pluralism can be seen in many religious clause cases over the last few decades, most significantly in the old coalition’s overwhelming support for the Religious Freedom and Restoration Act (RFRA) and the new coalition’s attempts to resurrect the much less accommodating interpretation of religious freedom found in Justice Scalia’s majority opinion for Employment Division, Department of Human Resources of Oregon vs. Smith (1990).[8]

In addition to these often conflicting interpretations of principles, the new coalition’s concerns with building and strengthening an atheist political identity has led to different legal strategies and political projects as well. For example groups such as the Secular Coalition for America, the Freedom From Religion Foundation, and others have initiated “coming out” movements for secularists, sobriety programs for the nonreligious, and congressional campaign funds for openly atheist candidates (Cimino & Smith, 2014).In this identitarian-style of politics, new coalition members have begun to establish an entirely secular culture and identity that has informed both their own movement building as well as their constitutional tactics and strategies. While the ACLU especially has been encouraging of these sorts of projectswhen championing the recognitionof atheist and secular identitiesin addition to religious identities and voices, the new coalition’s other identity project goes a step further:in arguing for a high wall of separation between church and state, many atheist and humanist groups have claimed that the United States was founded on a secular national identity and that even mild accommodations of religion in the public sphere are suspect at best.This has led to differences among the two coalitions concerning constitutional issues such as the ministerial exception to the ADA as well as views on legislative prayer.[9]In this rest of this paper, I hope to substantiate these arguments by tracing the historical developments of these secular factions and observing how these differences in foundation and principles have affected constitutional development and what they mean for the future of American separationist political movements.

Origins of the Old and New Separationist Coalitions

Although theseparationist litigation orchestrated by the ACLU is often associated with a hostile attitude toward religion, the organization’s history and partnerships with a diverse array of religious groups tells a different story (Walker, 1999).As Sarah Barringer Gordon (2010)documents, the ACLU has consistently aligned itself with religious organizations, most notably Protestants and Other Americans United for the Separation of Church and State (POAU) as well as the American Jewish Committee. Beginning in the 1930s, this alliance was forged by combining the ACLU’s secular mission with the POAU’s desire to defend religious liberty by restraining the government from interfering with or endorsing any particular sect. The old coalition’s concerns with sectarianism developed as the organizations waged legal battles with Catholics who they accused of holding many public schools “captive” by employing faculty comprised of priests and nuns who taught dogma and Catholic prayer to their students (Kersch, 2005).General uneasiness with the relationship between Catholicism and the public education system was so prevalent that the coalition was able to push the Court to incorporate the establishment clause in the Catholic school and public busing case Everson v. Board of Education, 330 U.S. 1 (1947).[10]Even as anti-Catholicism began to wane in the 1960s, this alliance has remained focused on what the POAU coined as “pervasive sectarianism,” i.e. public institutions run as de facto religious enterprises (Gordon, 2010, p.93). This focus has given the old coalition targets for litigation as well as a foundational principle from which to base its legal arguments in a variety of cases.

In addition to sectarian concerns, the old coalition has a long history of supporting the rights of religious minorities that has continued to inform its modern legal strategies. The ACLU in particular has been instrumental in litigating on behalf of marginalized and unpopular religious faiths since it took on several cases defending Jehovah’s Witnesses in the 1940s. In landmark Supreme Court cases such as Cantwell v. Connecticut,310 U.S. 296 (1940), Minersville School District v. Gobitis, 310 U.S. 586 (1940), andWest Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the ACLU argued for Jehovah’s Witnesses’ rights to freely exercise their religion through proselytization as well as the right to refrain from saluting the U.S. flag.The ACLU also partnered with groups such as the Unitarian Universalists to protect minority Christians from being subjected to majority Christian religion interpretations of scripture. For examplein the case Abington School District v. Schempp, 374 U.S. 203 (1963), the ACLU represented Unitarian schoolboyEdward Schempp in his challenge to the daily school reading of the Lord’s Prayer. It is clear from these cases that rather than the anti-religious perception of organizations such as the ACLU, the old coalition of separationists can be conceived of more accurately as anonsectarian alliance of advocacy groups fundamentally concerned with the protection of minority rights.

In the last decade, a new coalition of separationists has emerged in the form of alliances among more purely secular-oriented advocacy groups. Organizations such as the Freedom From Religion Foundation, the Secular Coalition of America, and the American Atheists have seen a surge in membership and funding as they have seized on the political opportunity to represent a more purely secular challenge to instances of government and church intermingling. Although the alliance consists of a variety of humanist and secular Jewish organizations, the atheist members of the new coalition have provided the leadership generally in terms of seeking out litigation and drafting amicus briefs to which many of the lesser active groups have tended to join. In order to delineate this coalition’s material and ideological contributions to the separationistconstitutional tradition, it is necessary to first trace its origins and determine how their arguments and tactics have been shaped by the relevant historical context and their situation in political time (Orren Skowronek, 2004). In doing so, three explanatory factors for the origins of this new coalition can be identified as: a dialectical response to the Religious Right, a consequence of a political moment conducive to secular and atheist politics, and an elite-driven secular agenda.

Scholars such as Gavin Hyman (2007) have posited that the recent rise in secular advocacy groups is the result of a dialectical response to the preceding rise of the Religious Right. As the Republican Party under President Ronald Reagan came to embrace Christian political leaders such as Jerry Falwell and Pat Robertson and their organizations, secular-minded Americans began to organize in opposition.[11] As early as the 1960s, these secularists started to establish advocacy groups,beginning with Madalyn Murray O’Hair’s American Atheists slightly ahead of its time in 1963; following were the 1978 establishment of the FFRF and the 1981 founding of the People for the American Way (PAW). In the past twenty years there has been another era of secular political organizing which has brought about the formation of the Secular Coalition for America, the Secular Student Alliance, and the Center for Inquiry among others. These groups have offered a secularandd often antireligious discourse as a rejoinder to the fundamentalist rhetoric of many evangelical Christian organizations such as Falwell’s Moral Majority. Especially interesting are the constant rhetorical battles over whether the country’s founding was more secular or more Christian (Hamburger, 2004; Sehat, 2011; Lambert, 2006).These developments provide evidence for the claim that as religion became more “public” in the 1980s (Casanova, 1994), there became a prospect for the establishment of a political challenge to the New Right’s politics.

In addition to dialectical explanations, secular groups have also benefited from the end of the Cold War and the waning fear of communism among Americans. Especially in the 1960s and 1970s, American secularists and atheists were tied problematically to notions of communism and general un-Americanism. Atheists suffered anadditional liability in the form of Madalyn Murray O’Hair and her notoriety in the press. Having become infamous for her pugnacious personality throughout the Schempp case in which her son’s challenge to a Lord’s Prayer school provision was combined with the Schempp’s challenge at the Supreme Court, O’Hair used her airtime and interviews to mock all forms of religion as primitive as well as espouse the great deeds done by the rational and atheistic Soviet Union. At the height of her visibility, Life magazine featured her on a cover with the headline “The Most Hated Woman in America”(Le Beau, 2005).After O’Hair was removed from the spotlight and anti-communist sentiments began to taper, an effective secular political project could more feasibly be undertaken. By determining that the political moment for an atheist politics was now more possible, aless reactionary element of the new coalition of separationists becomes clearer. After all, American secularists did not suddenly emerge from nothingness over the past several decades. Susan Jacoby (2013) offers evidence for this in her book on the popular orator Robert Ingersoll, the nineteenth century “Great Agnostic” who embodied the American Golden Age of Freethought. It has undoubtedly behooved New Atheist figures such as Christopher Hitchens and Sam Harris to root their secularism in the tradition of patriotism, a characteristic that draws sharp contrast between Ingersoll the Civil War veteran and O’Hair the would-be defector to the Soviet Union (Bullivant 2010).[12] The contemporary American political scene can thus be viewed as the first moment in over a century that secularists have been able to organize and pursue their interests with some efficacy.

While it is true that the present political climate is one that has been conducive for the rise of secular politics, this does not fully explain how such a reportedly minuscule percentage of the population has organized into such a widespread and growing alliance of advocacy groups.[13]The highly-visible and politically active leaders of what has been termed the “New Atheism” aid in explaining how an elite-driven agenda has been principal in organizing secularists and attracting funding and membership to already established atheist, secular, and humanist groups. The most famous of these new atheist leaders have been dubbed the “Four Horsemen of New Atheism,” these atheists such as Richard Dawkins and Sam Harris have been instrumental in organizing their efforts via bestselling books, frequent media appearances, and national and international conferences.[14] The Four Horsemen in addition to dozens of other lesser figures currently hold an assortment of presidential positions and seats on the boards of directors of organizations such as the Secular Coalition for America and the FFRF (Secular Coalition for America, 2013: Freedom From Religion Foundation, 2013a). Commentators have linked these formal and informal ties among leaders and organizations with a recent massive growth of funding and membership in these organizations (Williamson & Yancey, 2012). For example, the FFRF has seen a 130% growth in membership and millions of dollars in donations, bringing the group up to almost 20,000 dues-paying members (Wing, 2013). In many ways, these institutions have parallels to Religious Right elite-driven organizations such as Pat Robertson’s Christian Coalition and Jerry Falwell’s Moral Majority. As a consequence, they have had much more latitude to pursue not only nonsectarian goals but alsomore radically separationistonesthan the organizations of the old coalition.

Similarities and Differences between the New and Old Coalitions’ Political and Legal Approaches

The following section considers various court cases and amicus briefs in order to delineate the principles and strategies by which the new and old coalitions approach religious establishment, free exercise, and free speech issues. As the previous section has demonstrated, the separationist response to the Religious Right has been a fractured one due to the differences not only in founding and constitutive principles and identities but also the historical context during which each coalition formed. Although both alliances seek to oppose government endorsements of Christianity in particular, the old coalition’s preference for nonsectarian aims has in certain instances met competition from the new coalition’s more diverse desires including the political recognition and rights of atheists as well as an acknowledgement of secularism—and antireligious sentiment—as a key founding principle of American constitutionalism.The analysis of cases exemplifies these diverse and sometimes conflicting commitments among separationists and explains where and why there has been a fractured response to the rise of the Religious Right’s brand of constitutionalism.