Michael Gaynor
August 20, 2005
Atheism is a protected "religion'' under the First Amendment!
By Michael Gaynor

"When I use a word," Lewis Carroll's Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean — neither more nor less."

Humpty Dumpty would be the patron saint of judicial activists, if he was a saint and they had a patron saint.

Judicial activists egotistically put the emphasis on "I" in supposedly interpreting the law instead of on faithfully fathoming and following the intention of those who made the law.

The men who wrote and ratified the First Amendment were Christians who defined religion in terms of Judeo-Christian theism.

To them, religion did NOT mean nonreligion or irreligion. Or Satanism.

James Madison, Father of the Constitution and drafter of the First Amendment, defined religion as "the duty which we owe our Creator," thereby necessarily excluding nonreligion or atheism:

"We hold it for a fundamental and undeniable truth that religion, or the duty which we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man must be left to the conviction and conscience of every man: and that it is the right of every man to exercise it as these may dictate." James Madison, Memorial and Remonstrance to the Assemby of Virginia.

Thomas Jefferson, the man who wrote of a "wall" between church and state after drafting the Virginia Statute of Religious Freedom that explicitly acknowledged God, declared in his second presidential inaugural address: "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the General [federal] Government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it, but have left them, as the Constitution found them, under the direction and discipline of the church or state authorities acknowledged by the several religious societies."

Jefferson surely respected a person's right to be an atheist, but he did not define atheism as religion.

In 1878, in Reynolds v. United States, the United States Supreme Court rejected a Mormon's argument that his practice of polygamy was a religious duty and therefore protected under the Free Exercise Clause. The Supreme Court held that the trial court had not erred in refusing to charge the jury that if Reynolds believed it was his religious duty to practice polygamy, he must be found not guilty of bigamy. In ascertaining the scope of protected religious activity in the Constitution, the Court stated: "The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted."

If most of today's Supreme Court Justices took that position instead of taking it upon themselves to decide what is best, Americans would be so much better served (and Kelo would have been decided differly, because the people who wrote and ratified the Constitution meant that government's eminent domain power was only to be exercised for a legitimate public purpose).

In Reynolds, the Supreme Court properly considered statements made by Madison and Jefferson for guidance in ascertaining the framers' meaning of the word "religion." Specifically, Madison's statement that religion is "the duty we owe to our creator," and Jefferson's statement that it is "a matter which lies solely between man and his God." These statements illustrated the common understanding of religion in late eighteenth-century America as a relationship between a person and some Supreme Being. Jefferson had written that his Virginia Statute for Religious Freedom was to "comprehend within the mantle of its protection the Jew and Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination," but not that atheism was a religion.

In 1890, the propriety of polygamy was again before the Supreme Court. In Davis v. Beason, the Court upheld an Idaho statute that required individuals registering to vote to swear that they neither practiced polygamy nor belonged to any organization that looked upon polygamy favorably. The defendant, a devout Mormon, asserted that the statute violated the Free Exercise Clause. This time the Court specified that "[t]he term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will." The defendant's beliefs and practices fell within the meaning of the term, but the Court held that only his beliefs, and not his practices, were protected under the First Amendment. There was nothing suggesting that atheism fell within the meaning of the term.

The Davis Court's substantive definition of religion emphasizing traditional ideas of obedience to and worship of a deity continued to be affirmed by American courts well into the twentieth century. As late as 1931, the Supreme Court apparently reaffirmed it when Chief Justice Charles Evans Hughes concluded that "the essence of religion is belief in a relation to God involving duties superior to those arising from any human relation."

Sunsequently, judicial activists set aside stare decisis and effectively rewrote the religious clauses of the First Amendment to encompass nontraditional "religions."

United States v. Ballard, decided by the U.S. Supreme Court in 1944, marked the shift. in that case, the founder of the "I Am" movement was prosecuted for using the mails for fraudulently promoting his alleged faith-healing powers. Mr. Ballard told his followers that his ministry had been sanctioned by personal encounters with Jesus and Saint Germain. Followers were encouraged to send contributions to the movement, and many did. When many contributors, contrary to Ballard's promises, failed to experience physical healing, a San Francisco district attorney sought prosecution. The United States Supreme Court held that the trial court had ruled properly when it told the jury that it could inquire into the sincerity, but not the truth or falsity, of Ballard's religious beliefs. In his majority opinion, Justice William O. Douglas wrote:

"Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. . . . If one could be sent to jail because a jury in a hostile environment found one's teachings false, little indeed would be left of religious freedom. . . . The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain."

This shift was signicant, but it certainly did not suggest that irreligion was religion.

In 1965, the Supreme Court removed God from the definition of religion, in United States v. Seeger. The defendants were conscientious objectors who had been convicted in federal district courts for refusal to submit to induction after Selective Service officials had rejected their claims for exemption. All three men had similar worldviews, and none had a traditional concept of God. Seeger, for example, said that he was uncertain of whether a Supreme Being existed, but that his "skepticism or disbelief in the existence of God" did "not necessarily mean lack of faith in anything whatsoever." His, he stated, was a "belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed."

The Supreme Court unanimously ruled that Congress had not intended to restrict the exemption for conscientious objectors only to those who believe in a traditional God. The expression, "Supreme Being," rather than "God," had been employed by Congress "so as to embrace all religions" while excluding "essentially political, sociological, or philosophical views." The test of belief required by the act, the Court held, being "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." The Court specifically found the beliefs of the three defendants to be "religious" within the meaning of the Selective Service Act.

Congress was displeased by the Court's expansive interpretation of "religious training and belief." Congress obviously had intended to limit conscientious objector status to those who held a traditional belief in God. The Court, however, rather than ruling that the statute was unconstitutional, grounded its decision in an erroneous reading of congressional intent. Congress then went along with the Court's ruling by removing the "Supreme Being" clause in the new Military Selective Service Act of 1967, although the new provision retained the restrictive phrase which ruled out inclusion of "essentially political, sociological, or philosophical views, or a merely personal moral code."

Three years later, in Welsh v. United States, the Supreme Court considered the case of a conscientious objector who had initially refused to label his objection as "religious" as required under the new Military Service Act. In his written objection, he struck out the word "religious" and wrote that his beliefs had been formed by reading in the fields of history and sociology. Although he had first claimed that his beliefs were nonreligious, he later wrote in a letter to his appeal board that his beliefs were "certainly religious in the ethical sense of the word." If anything, Welsh's beliefs were even more remotely religious than Seeger's. The Court was thus faced with considering whether the Act's requirement of "religious training and belief" would extend protection to a person motivated in his objection to the draft by profound moral conviction. The Court again enlarged the scope of the statute, and held: "If an individual deeply and sincerely holds beliefs which are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual 'a place parallel to that filled by . . . God' in traditional religious persons."

These days the Supreme Court takes the view that so long as an "ultimate concern" occupies in the possessor's life a place parallel to traditional ideas of God, and so long as the beliefs are not based on "policy, pragmatism, or expediency," they are constitutionally religious. Under this content-neutral, functional approach, few of the "new" religions are deprived of religious status. The Unification Church is a religion, and the Church of' Scientology has been held by the courts to be a religious organization. Likewise, the religious nature of the International Society for Krishna Consciousness has received judicial recognition.

Now the United States Court of Appeals for the Seventh Circuit has ruled that Wisconsin prison officials violated an inmate's rights because they did not treat atheism as a religion.

"Atheism is [the inmate's] religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being," the Seventh Circuit declared.

The prison had refused to allow the inmate to create a study group for atheists.

Brian Fahling, senior trial attorney for the American Family Association Center for Law & Policy, aptly called the court's ruling "a sort of Alice in Wonderland jurisprudence." "Up is down, and atheism, the antithesis of religion, is religion," Fahling said.

Distressed by the Seventh Circuit ruling that atheism is a constitutionally protected religion and rightly viewing it as "further evidence of the incoherence of Establishment Clause jurisprudence," Fahling lamented: "It is difficult not to be somewhat jaundiced about our courts when they take clauses especially designed to protect religion from the state and turn them on their head by giving protective cover to a belief system, that, by every known definition other than the courts' is not a religion, while simultaneously declaring public expressions of true religious faith to be prohibited."

In 1961, in Torcaso v. Watkins, the Supreme Court, in a foonote, described "secular humanism" as a religion, while ruling that the exception in this clause of the Maryland Constitution was unconstitutional: "[N]o religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God . . . ."

That's what happens when the judicial activists ignore history, intention, plain meaning and stare decisis and arbitrarily make decisions in accordance with their own will.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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