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Atheism and the Law

Matt Dillahunty
Atheism and The Law

While scanning through my normal news feeds and e-mails, I noticed several news reports stating that the U.S. Seventh Circuit Court of Appeals declared atheism a religion in a recent decision. Atheism's legal status with respect to religion is one that has always prompted much debate. It's also one of the many issues that I feel very strongly about.

Fearing the worst and hoping for the best, I downloaded the opinion (Kaufman, James v. McCaughtry, Gary) and reviewed it. I'm not a lawyer, but I've spent a great deal of time reviewing Court decisions, especially those which pertain to First Amendment issues. What follows is my assessment of the ruling and some important information about atheism and the law.

What the Seventh Circuit Court of Appeals got right:

"... whether atheism is a 'religion' for First Amendment purposes is a somewhat different question than whether its adherents believe in a supreme being, or attend regular devotional services, or have a sacred Scripture."

This is an important point and the Court also made reference to the Supreme Court's opinion that a religion is distinct from a "way of life", even if that way of life is inspired by philosophical beliefs or other secular concerns. Essentially, not every belief or belief system is a religion.

The legal definition of religion, with regard to the First Amendment, may be very different from the layperson's definition. The First Amendment, in order to be effective in protecting all beliefs must guarantee the freedom to hold no religious belief. This is fairly straightforward, especially if you consider - for example - that a Christian may be considered an atheist with respect to every religion except Christianity.

"Without venturing too far into the realm of the philosophical, we have suggested in the past that when a person sincerely holds beliefs dealing with issues of 'ultimate concern' that for her occupy a 'place parallel to that filled by . . . God in traditionally religious persons,' those beliefs represent her religion."

"We have already indicated that atheism may be considered, in this specialized sense, a religion. See Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003) ('If we think of religion as taking a position on divinity, then atheism is indeed a form of religion.')"

This is, essentially, the basis for their decision. They have, in the past, considered atheism to be a religion in the specialized sense that atheism, like theism, specifically addresses the concept of god for the individual. This definition is an attempt to address the implied protections guaranteed by the First Amendment.

"The Supreme Court has recognized atheism as equivalent to a 'religion' for purposes of the First Amendment on numerous occasions"

They referred to another Supreme Court decision (Wallace v. Jaffree, 472 U.S. 38 (1985)), where the court said:

"At one time it was thought that this right [referring to the right to choose one’s own creed] merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all."

As we've seen, the Seventh Circuit Court of Appeals hasn't declared atheism to be a religion as the layperson might usually define it, they simply acknowledged that atheism hold equal standing with religions with regard to the First Amendment. I can live with that. That doesn't mean the Court got everything correct...

What the Seventh Circuit Court of Appeals got wrong:

"Atheism is, among other things, a school of thought that takes a position on religion, the existence and importance of a supreme being, and a code of ethics."

What "code of ethics"? No such code exists. Atheism is a single answer to the general question, "Do you believe in a God/god/gods?" For atheists, the answer is no. For theists the answer is yes. Apart from a position on the concept of God, there are no tenets, dogma, creed or code associated with atheism.

If the Seventh Circuit Court of Appeals was presented with an atheist code of ethics, I'd love to see it. If they had no such document, they are irresponsible to mention it in a decision. If their opinion in this case was significantly based on this "code of ethics", their decision should be reviewed without regard to any such code.

I mentioned above that one of the reasons that the court ruled atheism a religion was that, like theism, it addresses the concept of god. However, theism isn't a religion. Like atheism, theism is a single position on the question of the existence of God/god/gods.

Under each of these categories are a number of belief systems, which may be classified as religion. Theism includes Catholicism, Protestantism, Judaism, Hinduism etc. Atheism doesn't necessarily have subcategories, though many Buddhists and Secular Humanists are, generally, atheists.

Be More Specific:

The ruling we've been discussing was with regard to a prisoner (James J. Kaufman) who claimed that his First Amendment rights were violated when the warden refused to allow him to form a group of inmates to study and discuss atheism. Specifically, he cited the Free Exercise clause and the Establishment clause. The court, recognizing that the defendant "utterly failed" to demonstrate that his freedom to exercise his beliefs had been infringed, shot down the Free Exercise claim - and rightly so.

Despite the Court's reference to an atheist "code of ethics", it should be noted that atheism has only one requirement which would qualify under the Free Exercise clause - disbelief. Atheism isn't a religion in the conventional sense and there are no rituals associated with it. In order to violate an atheist's right to freely exercise their beliefs, you'd have to be able to reprogram someone's mind.

In a nutshell, Mr. Kaufman was just as free to exercise his lack of belief alone in his cell. As a prisoner he isn't necessarily afforded all of the other rights guaranteed to citizens of the United States. The right to speak freely and peaceably assemble, which atheists might choose to exercise, don't always apply to a prisoner.

The Court also considered his claim with regard to the Establishment Clause - a subject of much controversy in recent years. The Supreme Court and Circuit Courts have established a set of precedents with regard to the Establishment Clause, in an attempt to curtail religious favoritism. The "Lemon" test (Lemon v. Kurtzman, 403 U.S. 602 (1971)) is a three-pronged test which the Courts have used on many occasions.

The Lemon Test:

"A government policy or practice violates the Establishment Clause if (1) it has no secular purpose, (2) its primary effect advances or inhibits religion, or (3) it fosters an excessive entanglement with religion."

The Seventh Circuit Court of Appeals, referring to some of their previous decisions, stated:

"The Establishment Clause also prohibits the government from favoring one religion over another without a legitimate secular reason."

"('[T]he First Amendment does not allow a state to make it easier for adherents of one faith to practice their religion than for adherents of another faith to practice their religion, unless there is a secular justification for the difference in treatment.'); Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1168-69 (7th Cir. 1993)"

Despite the controversy, this is just good law. It protects everyone equally, ensuring that favoritism is not afforded to any one set of beliefs at the expense of another - even if one group is a majority.

The Court, in this case, properly recognized that Mr. Kaufman's right to form a group with people who shared similar beliefs was a protected right. Unless the prison system had excluded all gatherings with regard to religion, prohibiting a group of atheists to gather is a violation of the Establishment Clause.

As we've seen, and despite the "shock" headlines to the contrary, they didn't declare that atheism was a religion, they declared that atheism was afforded equal protection with religions under the Establishment Clause.

In the end, the Seventh Circuit Court of Appeals upheld the law and ensured that Religious Freedom is a concept that applies to everyone equally. Apart from the reference to an atheist "code of ethics", I don't think anyone could reasonably ask for a better decision.

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