Atheism and the Law

Most Americans believe that their religion or non-religion is a private matter of no concern to other people. Many of them are astonished when they learn that such a concept is a fairly recent historical innovation.  There was most likely no separation of the religious and secular spheres in early societies.  Religious sanctions reinforced social customs.[1]  A member of a primitive tribe who violated a custom violated a taboo which could bring upon him the wrathful vengeance of a non human, mysterious power. Eventually a need was seen for an intermediary between the earthly tribe and the supernatural powers it worshipped, and the priestly caste emerged.  From the very beginning of human history, however, it was the king and not the priest who was superior.[2]  Such a state of affairs lasted for centuries, and although the waxing and waning of church power upset the balance at times, hegemony always eventually reverted to the realpolitik of state power. 

The beginnings of religious choice and freedom came slowly for human societies.  The epochal Edict of Milan in 311 C.E. was an affirmation of religious freedom, in that every person was stated to be “free to manage divine affairs to his own choice.”[3]   It is of interest to note that no stated freedom was extended to non-believers, who were not mentioned in the document.  The influence of Augustine, Bishop of Hippo, (City of God, 426 C.E.), on the course of religious history has been non salutary and egregious.  Augustine maintained it was just to use coercion in order to cure heretics of their error, and even to punish them if they continued in heresy. His position concerning coercion remained the official stance of the Roman Catholic Church until the 1965 Second Vatican Council.  Augustine’s influence was an important justification for the medieval church’s practice of persecution of “heretics,” often with the most violent measures. Such practices included torture and putting those citizens who differed from the church’s official positions to death by burning (auto da fe, or act of faith, as it was called,) and other means.[4]

Atheism was a legally unprotected philosophical position for centuries.  Since the legitimacy of the pre-modern governments rested on claims of divine right, atheist non-belief in divinity threatened the stability of the government.[5]   The philosopher, Plato, in 5th Century B.C.E. Greece, and Thomas Aquinas in the 14th Century C.E., were both supporters of the death penalty for repeated offenses such as “impiety,” blasphemy, or being an infidel.  The church carried out such extreme measures very often. What is most noteworthy, however, is that trials for blasphemy have been conducted outside of church jurisdiction, by jurists, under the cover of common law, until relatively recently.[6]

The tradition of religious liberty in the West is due in great part to such classic Liberals as John Locke (1632-1704.)  However, Locke did not extend his advocacy of toleration for diverse religious creeds to atheists.  He was afraid atheists would undermine the courts and the economic structure of countries as he maintained they could not be trusted to uphold oaths, covenants and contracts.[7]  Pierre Bayle, (see Atheist History in the US) a contemporary of Locke’s, argued for toleration for non-believers. Bayle was a skeptic who maintained that since man was regarded as autonomous, the right of making a decision to believe or not believe in god should be a private matter.  After Locke and Bayle, it would be two hundred years before the idea of religious tolerance would be extended to non-believers.

The American experience with regard to church-state relations is somewhat of an anomaly. With the ratification of the United States Constitution in 1788 and the Bill of Rights in 1791, the American government extended a very broad right to religious freedom to its citizens. Nevertheless, atheists are discriminated against in our country and attempts to prioritize religion above nonbelief are persistent.  Many historians and legal experts have noted the anomalous nature of the United States with regard to religion and secularism.  We have a secular government founded largely on principles the framers of the Constitution had received from the European Enlightenment.  At the same time, the majority of our population is deeply steeped in religious belief.  Such a populace has an unfavorable view of atheists, and at present, an atheist has very little chance of being elected to public office. There is an unrelenting campaign on the part of religious fundamentalists to breach the wall of separation between church and state.  Our country has one of the oldest constitutional injunctions against religious establishment, has a “specific constitutional provision prohibiting religious tests for public office, and has an honored legacy of constitutional theory articulating the need for a wall separating Church and State.”[8]   Yet, over the last thirty years, religious fundamentalists, in league with religious, or in some cases, pandering politicians, have made limited, but significant, gains in their struggle to Christianize America. C. Welton Gaddy states the situation succinctly. He calls the state of affairs in the United States the “religiofication of politics and the politicization of religion.[9]   A look at atheist history with regard to the law in the United States confirms the fact that atheists have been discriminated against, and time after time, have been forced to go to the courts to obtain rights already guaranteed them by our Constitution and Bill of Rights.

Christian fundamentalists have had some purchase with their falsehood that the United States was founded as a Christian nation. The facts do not bear out their claim.  Colonial America, according to Sweet, had the largest proportion of unchurched in Christendom.[10] Even in New England, the most churched section of the thirteen colonies, there was not more than 1 church member to every 8 persons in total population at the close of the colonial period.[11]  Church affiliation out of the total proportion of the country at the founding of the republic was limited to 4% of the population.[12]  Undoubtedly the lack of ministers and distances between churches were large factors in the paucity of church affiliation.  But it is almost a certainty that those people who are not connected to a church will not persecute others for the same thing.  It also stands to reason that such citizens would not countenance being taxed to support a religion they were unaffiliated with. (See Atheism in American History.)

Nevertheless, atheists and agnostics have suffered discrimination under the early laws of individual states in the colonies, and also from subtler, but insidious discrimination from our courts for many years, to the present day.  In American legal history, atheists have not been trusted to give testimony under oath or serve on a jury.  “As of 1938, seven states explicitly prohibited testimony from anyone professing disbelief. Eight others allowed impeachment of the witness based on his or her disbelief.”[13] Dying declarations were not considered acceptable when atheists made them, apparently based on the notion that they might be lying because they did not fear punishment in an afterlife.  Dying declarations have often been considered admissible by the courts because the dying person presumably has nothing to lose, and being so close to death, would not wish to imperil his/her immortal soul.  The dying declaration of an atheist who told his sons who had shot him was remanded back to trial court in 1920 with instructions that the victim’s atheism should be admitted and used to help undermine his credibility.[14]   David Koepsell states that as late as 1953, eight state constitutions required belief in god to hold public office.[15]  Discrimination against atheists is a civil rights issue and has been deemed as such by the American Civil Liberties Union (ACLU,) the Duke Bar Journal, and the Journal of Criminal Law and Criminology. (See Works Consulted.)

The issues of separation of church and state and religious freedom in the early years of our nation were brought to a head in Virginia around 1784. Patrick Henry (soon to be elected governor) sponsored a bill that would tax its citizens for the support of the Christian religion, or of some Christian churches.  The bill would have allowed citizens to choose which churches they wished to support among competing religious denominations.  James Madison found the proposal of plural establishment “obnoxious,” and wrote one of the greatest statements of religious liberty ever penned, “The Memorial and Remonstrances against Religious Assessments.” The Memorial listed fifteen reasons why citizens should not be taxed to pay for religion and also maintained that religion does not need the state to support it.[16]   It is an eloquent and moving statement; too few contemporary Americans have been exposed to its ringing words.  The opposition to taxation, groups which included dissenting denominations such as the Baptists, circulated the “Memorial” around the state of Virginia.  When the Virginia general assembly met in 1785, lawmakers were faced with stacks of petitions against the taxation proposal and the bill was defeated. 

Madison was emboldened by such a success and pushed for the passage of Jefferson’s earlier 1779 Bill for Establishing Religious Freedom. The bill stated “no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever.” The bill also made clear that taxing citizens for church support was tyrannical.  Jefferson was delighted when his bill was passed in Virginia in 1786.  He later wrote to a friend that he wanted his bill to protect the “the Jew and the Gentile, the Christian and Mahometan, the Hindoo, the infidel of every denomination.”[17]

Madison was the chief author of the Constitution of the United States and he had an important part in developing the Bill of Rights.  The First Amendment was developed in 1789.  The Constitution is mainly silent on religion except for Article 6, which bans religious tests for people running for public office. The Constitution (except for the pro forma words “the year of our Lord” in the date,) does not mention god, Jesus Christ, or Christianity, and the omission was deliberate.[18]  Robert Boston states that the First Amendment encapsulates the separation of church and state in two ways.[19]   The first portion of the Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Such a statement does not merely mean that the government could not establish an official church, but also that no laws should be created funding, promoting, or establishing religion.  The second part, the free exercise clause, prohibits laws that do not allow the free exercise of religion.  There is a question concerning the origin of the phrase “separation of church and state.” Robert Boston states that the words appeared in Jefferson’s famous letter to the Connecticut Baptists on January 1, 1802.[20]   In that letter, he refers to the sentences in the first Amendment, quoted above, that Congress would neither make a law establishing an official religion, nor prohibit free exercise of religion. Jefferson declared that such provisions were“ thus building a wall of separation between Church and State.”

It is important to keep in mind that the Bill of Rights was limited to Congress at first, so it did not apply to the states.  As a result, church-state cases were rare in the early years of the American Republic.  After the Civil War, Congress passed the 14th Amendment, which imposed portions of Rights on the states.  This process was called incorporation, but some of the U.S. Supreme Courts refused to accept the very clear language of the 14thAmendment.  The Free Exercise Clause was applied to the States in the 1940 case, Cantwell v Connecticut.  Then in 1947, the Establishment Clause was adopted in Everson v Board of Education.  Cantwell was the case of a Jehovah’s Witness and his sons who wanted the right to proselytize on a public street in Roman Catholic neighborhoods in Connecticut.  The state convicted Cantwell of soliciting without a permit.  The Supreme Court overturned the state decision.  The Everson case, involving using tax money to bus children to parochial schools in New Jersey, was not a complete win for church-state separation. However the entire Supreme Court endorsed the solid wall between church and state.[21]   The Supreme Court has utilized Everson in the consideration of many cases for over 60 years to uphold some types of aid to religious institutions and in some cases to strike aid down. These two cases were brought to the Supreme Court partly as the result of incorporation being recognized. Prior to the Civil War and incorporation, there were very few church-state cases brought forward in the United States. From the time of incorporation’s adoption, there has been a plethora of such cases filed in the Federal Courts, many of which have been decided by the Supreme Court.  The contemporary picture continues the process of many church-state cases, whether of Free Exercise or Establishment, reaching the Supreme Court for settlement.

The 1960’s saw several important cases brought before the Supreme Court.  One of these was Engel v Vitale in 1962, when the Court struck down a New York State law that “allowed” public school students to recite a non-denominational prayer written by a state school commission.  In 1963, The Supreme Court looked at two folded together cases, O’Hair v Curlett and Abington Township School District v Schempp.  Both cases involved schools’ teachers or officials reading the Bible to students and leading them in saying the Lord’s Prayer.  The schools allowed the students to remove themselves to the hall if their parents objected.  The Supreme Court decided that the two schools’ practices amounted to establishing religion in the public schools. The case was a landmark decision and victory for atheists and secular citizens in the United States.* (See below for the biased news reporting of the O’Hair suit.)

Not enough attention has been paid to an earlier case, McCollum v Board of Education, 1948, which was another landmark case.(See below for the documentary shown on PBS in 2011.)  Robert Boston states that all subsequent church-state decisions involving school prayer, state aid to parochial schools, and sectarian religious displays on public property by states and municipalities descend from the McCollum case.  Vashti McCollum was a professor’s wife and a college teacher who decided to challenge a policy in her son’s school that pressured students to enroll in a Christian religious education program offered during school hours.  The case’s significance, says Boston, was that it was the first decision to hold states accountable to the strictures of the Establishment Clause under the due process clause of the 14th Amendment, which makes provisions of the United States Constitution binding on all the states.[22]

Lemon v Kurtzman was another important case decided in 1971, when the Supreme Court handed down a case that connected principles recognized in earlier religious funding and expression cases.  Chief Justice Warren Burger established the “Lemon” Test for determining whether or not a law has three criteria in order to be considered constitutional.  The criteria are (1) the law must have a secular legislative purpose; (2) Its principal or primary effect must neither advance nor inhibit religion; (3) it must not foster excessive entanglement between government and religion. Many Establishment disputes are settled by reference to Lemon.[23]

There are continual challenges to the effort to keep United States public schools secular, as well as attempts on the part of private religious schools to receive tax dollars.  This is an extended battle, with such issues as voucher programs for private school tuition, using public buildings for religious extracurricular activities and so on, being brought before the courts.  Religious fundamentalists are determined to bring religion and religious coercion into the public schools and the secular community is determined to stop such attempts.

One of the most important and far reaching victories for the secular viewpoint was the Kitzmiller v Dover Area School District, which effectively routed a new attempt to introduce creationism into the public schools of the United States.  Creationists made their attempt under a new name, intelligent design.  U.S. District Court Judge, John E. Jones III, ruled in favor of the plaintiffs on December 20, 2005.  The ruling was not appealed. (For an extended discussion of the Dover Trial and intelligent design, (See Evolution and Creationism ) both the Preface and the Book List.)

Other areas under dispute in the United States are end of life care, reproductive health, including abortion, endorsement of political candidates from the pulpit, academic integrity, teaching abstinence programs in the public schools, sectarian displays on public property, religious discrimination by religious organizations when they hire and yet accept tax dollars from the government, and so on. (See Ethics and Applied Ethics) for discussions of end of life, abortion, stem cell research and other issues vis-à-vis religious opposition.) A well publicized case was settled in May 2000 by a Federal District Court. It is titled McCreary County v ACLU. The Kentucky State Legislature had passed a law ordering the 10 Commandments posted in a very “high traffic area” of State Courthouses.  The courthouses complied and the ACLU of Kentucky filed a lawsuit, but the legislature passed different resolutions for a second display, and then a third.  The ACLU returned to Court for the third time. The case went to the Supreme Court, which ruled the display failed Lemon’s secularist purpose test, discussed above.

It is clear that atheists and secular citizens must fight the encroachment of religion assiduously or risk losing the clarification of their rights by the Courts in the United States. Religious fundamentalists have made considerable progress in convincing the American public that thefFramers of the Constitution were motivated by Christian principles, that the United States has been a Christian nation since its inception, and that faith-based programs are constitutional.  The fundamentalists have been aided by the press and by a public ill-educated in American history and civics. Justice Scalia (See Atheism in American History) has made clear he supports the fallacious notion of America being a “Christian nation.” Justice Anthony Kennedy supports local governments making decisions and regulations concerning religious displays on public land during holidays.  Justices Antonin Scalia and Kennedy have indicated that it might be better if religious liberty problems could be resolved by obeying majority opinions at the local community level rather than by Court decisions protecting minority rights.[24]   Justice Clarence Thomas maintains that the First Amendment’s Establishment Clause is no more than a “federalism provision.” He holds that although the federal government cannot establish a national religion, states are free from the prohibition.  The 14th Amendment forbids states to take actions depriving citizens of equal protection under the law.  The Supreme Court incorporated the Free Exercise Clause and the Establishment Clause in 1940 and 1947, respectively, as discussed above in the Preface. State governments cannot override the Freedom of Religion clause.  Why would a Supreme Court Justice maintain that such a guarantee of our freedom is not correctly interpreted?[25]

It is clear that the religious fundamentalists have a goal to persuade, or coerce, the government to embrace a theocratic philosophy; they would like to “roll back” the proper court decisions concerning the wall of separation between church and state.  Many of them would like to see the First Amendment’s religion clauses interpreted merely as forbidding the establishment of an official state supported church.   Islamic thinkers are discussing the possibility of establishing Islamic Family Courts or Tribunals in the United States. ( Women do not do as well with financial settlements in Islamic Family Courts in Britain than if they went to the secular court system.  Creeping fundamentalism, and the threat of alteration of the principle of the wall between church and state, have become vexing issues for the United States.

 Faith based initiatives in which government funds are provided to churches which run social service programs such as soup kitchens and homeless shelters are dangerously close to a violation of the First Amendment.  As of this writing, such programs, initiated by former President, George W. Bush, are still supported by his successor, President Barack Obama. Churches argue that they may include religious content in their programs, and hire people based on religious affiliation.  Yet the programs and employees are paid for by tax payer funding.  Many atheists and constitutionalists see the faith-based initiatives as a church tax.  There is a public perception, aided by religious fundamentalists and the press, that many American churches run such social programs.  This is a myth.  The statistics are startling. In 1998, there was an important study, the first of its kind in America, called the 1998 National Congregations Survey.  Mark Chavez was the principal investigator, and his findings from the results of 1,236 congregations in this country are eye-opening.  Overblown media coverage and the political battles in Washington D.C. have created a false picture of American churches giving significant aid and support to the disadvantaged. Chavez has discovered that most United States congregations focus on “the most fleeting contact,” if any at all, with needy people.  Since the majority of American congregations are small, with 60% of them having fewer than 100 members, there is no real “untapped resource” for social programs. (see Sociology of Religion)- Book List for a review of Mark Chavez’s volume,Congregations in America, 2004.)

The lack of civic education in the United States in the present day is worrisome for the fate of the church -state wall.  In 2004/2005, the John S. and James L. Knight Foundation conducted a wide ranging survey of 112,003 high school students.  The foundation was seeking data concerning the future of the First Amendment.  37% of students did not know about the First Amendment, 36% said they take it for granted, and only 27% said they ever think about it.  21% of students did not know what rights it guaranteed.  Of those who were familiar with the First Amendment’s contents, 35% thought it “goes too far” in the rights it guarantees.  Only 44% of the students surveyed approved of the rights guaranteed in the First Amendment.[26]

Many atheists support organizations such as the ACLU, Americans United for Separation of Church and State, American Atheists, Freedom from Religion Foundation and other groups which work to safeguard and guarantee religious freedom in the United States.  Many atheists are aware of the history of our Constitution and are up-to-date concerning legislation aimed at restricting secular rights, stem cell research, the teaching of evolution in the schools, end of life decisions, gay rights and much more.  It is to be hoped, in the near future, more avowed atheists run for state and national offices and that non-believers of disparate philosophies join together to create a strong voting bloc.  Approximately 20% of citizens in the United States are unaffiliated with any organized religion, according to surveys. (See Atheist Demographics.)  Such a united group of voters could exert significant influence on the direction the United States takes concerning non-believers’ civil rights and knowledgeable enforcement of the Establishment and Freedom clauses of the Constitution. Atheism and the Law is a crucial portion of atheist studies; it is only by knowing our history and our rights that we atheists can safeguard them. Non-believers can begin to become acquainted with the cases and the principles critical to our freedoms by reading the books on the Book List below. (Please see Atheist Activism and Atheist Organizations.) It is to be hoped that Atheist Studies programs will be added to more American colleges and Universities, with Atheism and the Law classes prominent.

The Preface closes with additional evidence for the Founder’s intent to establish a secular, non Christian government. Ed Buckner maintains that The United States Constitution, lacking affirmative references to religion, is the primary and sufficient evidence of the secular intent of our government’s founders.  The Treaty of Tripoli, written in 1796, by diplomat Joel Barlow and signed and proclaimed by President John Adams on June 10, 1779, adds considerable weight to the issue of the American government’s secularism.  The Treaty of Tripoli was drafted and signed less than ten years after the Constitution’s ratification. The beginning sentence of the Document states unequivocally what religious fundamentalists seek to obliterate:

“…the government of the United States of America is not in any sense founded on the Christian religion.”[27]

*There is an interesting article titled “Reflections on an Atheist Epic” (microform) by Jim Bowman. ERIC Clearinghouse, 1989, concerning the landmark Supreme Court Case O’Hair v Curlett discussed above in the Preface.  Madalyn Murray O’Hair and “Baltimore Sun” Reporters comment about the coverage of the first incidents leading to the Supreme Court’s banning religious readings and prayers in United States public schools. 

Bowman read all the copies of the Baltimore Sun from 1960 to 1962 pertaining to the O’Hair Case and found five revealing facts concerning press coverage of this important case.

(1)    There was imbalance in the disproportionate amount of space given to authorities and proponents of school prayer.

(2)    Atheism was linked to Communism, a distortion of the facts.

(3)    The Press was quick to stereotype atheists, and did not understand dissent in the form of atheism.

(4)    Two reporters’ professional judgment was skewed because of disliking O’Hair.

(5)    There were one dimensional portraits written of O’Hair and her son.  They were not depicted as individuals.

Videos of Lecture: Atheism and the Law

Lecture: Atheism and the Law

Video of Discussion: Atheism and the Law

Discussion: Atheism and the Law

Recommended Books

The following Books have been chosen for their merit by critics and readers:

American Atheists. Atheists’ Rights and Religious Expression in Public Schools: A Secular Perspective and Guide for Parents and Students. Cranford, New Jersey: American Atheists, 2000.

Atheists Rights is a tall octavo size, slender paperback of about 16 pages.  It begins with a printing of the Bill Of Rights, In Force December 15, 1791.

The volume explains that although there have been many guidelines published for the protection of religious expression in United States public schools,  most lean toward freedom of religious expression and do not deal with the rights of non-believers.  A misperception has been cleverly produced by religious fundamentalists which maintains Christian students are deprived of their rights in schools, which is far from the actual state of affairs. Atheists’ Rights tries to correct such canards by detailing cases investigated by NBC news.  The Christian Coalition once maintained that Christian students were being persecuted for their religious beliefs.  That was not the case.  Most of the incidents the Coalition cited either never happened or were misrepresented. 

The Introduction explains that guidelines for religious expression in the schools would not be necessary if students confined their worship practices to the plethora of churches, temples, mosques and so on available to them in America.  The religious guidelines may well be creating more difficulties as students who are religious feel emboldened to encroach on the rights of the non-religious students.  Students who are atheists or secular are frequently harassed by school administrators, teachers and other students. The Introduction states that “the Guidelines have done nothing to protect the rights of Atheist students.”

Atheists’ Rights presents a retrospective of four very important cases in the history of the First Amendment, the Establishment Clause, and the schools.  The short history is an excellent, concise retrospective that many Americans should know but do not.  There are two pages devoted to rules relating to the Equal Access Act, and the fact that the rules cannot be selectively applied.  Atheists must be allowed to form clubs if religious clubs are allowed in a school.  No one club can be favored over others or endorsed by teachers and/or administrators.

There are sections on rights at school discussing what the parents can do if creationism is taught or endorsed in public schools.  If religious counterparts are allowed to wear “message clothing,” buttons, jewelry and so on, atheist students have the right to wear similar item with their own logos.  There are two pages that discuss what religious assemblies in schools do to violate the law, as well as discussions of how religious organizations penetrate schools.  Moments of silence are also covered, as well as religious pledging.

Atheists’ Rights is an excellent and concise coverage of what sort of religious expression is allowed in the schools and why atheist and secular students’ rights are more endangered than that of religious students.  Secular parents are advised of their children’s’ rights and are encouraged to “expect our public schools will not be a battleground over religious ideas but as places of opportunity for growth and enrichment.”

This slender paperback is a valuable guide for atheist students and parents concerning atheists’ equal status in our United States public schools.  It is very accessible, eloquent and to the point.  Highly Recommended.

Beeman, Richard. The Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence, U.S. Constitution and Amendments, and selections from the Federalist Papers. New York: Penguin (NonClassics,) 2010.

Fans of the Jon Stewart Daily Show take notice: Atheist Scholar recommends Richard Beeman’s Guide. One of the country’s top Constitutional experts, Richard Beeman is known to many people in the United States because of his appearance on the Stewart program.

The Penguin Guide contains the complete text of the Constitution, but separated into sections, with the editor commenting on each section.  The Declaration of Independence is also complete and annotated. The volume contains abridgements of three of the most lucid of the Federalist Papers, which remain a primary source of interpretation of the United States Constitution.  Beeman has included a very concise history of the writing of the Constitution and a section of important Supreme Court cases with an explanation of each one’s relevance to the Constitution. The cases also serve to illustrate how the meaning of many provisions has shifted over the years, or rather, how the interpretations of them may have changed. The language is non-technical and very accessible.

The Penguin Guide is a compact and erudite volume that is an excellent addition to any atheist’s library.  Highly Recommended.

For readers who enjoy Graphic Guides and Novels, there is:

Hennessey, Jonathon. and Aaron McConnell The United States Constitution: A Graphic Guide. Illus. Aaron McConnell. New York: Hill and Wang, 2008.

This Guide is very nicely done, and its 160 illustrated pages elucidate the history of the U.S. Constitution and Amendments.  The book also mentions some of the flaws in the document, such as how long slavery was allowed to continue.  For Junior High Students up to Graphic Guide enthusiasts of all ages.

Flowers, Ronald B., Melissa Rogers and Stephen K. Green.  Toward Benevolent Neutrality: Church, State, and the Supreme Court. 5th Ed. Waco, Texas: Baylor University Press, 1996.

This magisterial volume is a panorama of Supreme Court Cases concerning religious freedom and separation of church and state.  It gets its title from Chief Justice Warren Burger’s statement in Walz v Tax Commission, in which the justice stated that “short of those expressly proscribed government acts (establishment of religion or interference with religion) there is room for play in the joints productive of benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” (397 U.S.664, 669. Decided 1970.)

This is not a volume for the reader who wants a concise, one stop overview of the history and interpretations of church-state issues in the courts.  There is a brief chapter with some of the history of principal events leading to the adoption of the First Amendment.  From there the book covers cases of government intervention in church controversies, the free exercise of religion, conscientious objection to war, and other controversies concerning religious liberty, such as Sunday laws and religious tests for office.  There is a long chapter on establishment of religion and then the book finishes with church, state and civil religion issues. 

The older version of the volume penned by Flowers and Robert T. Miller had 2 Appendices(1977.) A was a reprint of Thomas Jefferson’s “A Bill for Establishing Religious Freedom,” and B reprinted James Madison’s “A Memorial and Remonstrance.” There is a glossary of Legal Terms and Phrases, an excellent Suggested Bibliography, a Table of Supreme Court Cases, A Table of Lower Court Cases and a Table of Opinions.  
The book presents the text of virtually every significant Supreme Court Case decision concerning religious freedom and separation of church and state. The volume lays out the cases, including the legal arguments, the principles involved, the dissenting opinions and the decisions.  Essays are also included that interpret the historical background and legal issues involved in each case. 

This book is a sine qua non for libraries, law libraries, universities, religious libraries, professors of law, students of constitutional law and Atheists with a deep interest in First Amendment Issues.  It is reasonably interesting, but the casual reader or beginning student of atheism and the law will find it rather ponderous reading.  However, it is an excellent reference to have on hand for quickly looking up specific cases.

Gaddy, Welton C. and Barry Lynn. First Freedom First: A Citizens’ Guide to Protecting Religious Liberty and the Separation of Church and State.  Boston: Beacon Press, 2008.

The first section of First Freedom is written by Welton Gaddy, the head of Interfaith Alliance. It is a general overview of the threat to our political freedom from religious fundamentalists. Such an overview is quite useful and informative for the reader just beginning to study atheism and the law.  He discusses the counterproductive ideas of some of the Supreme Court Justices with regard to allowing the state to settle some religious disputes locally rather than being decided federally. (See Preface) Gaddy comments on the paucity of civics education for students in the United States today and how many high school students do not know what the First Amendment is. He does away with the myth propagated by religious fundamentalists that enforcement of the separation of church and state is an attack on religion.

Barry Lynn’s section is more focused, beginning with a “Brief History of Constitutional Law on Religion.” Lynn, the head of Americans United for Separation of Church and State, states that the First Amendment protects 5 freedoms: freedom of religion, of speech, of the press and freedom to peacefully assemble and petition the government.  He includes a brief overview of the important Constitutional cases and the precedents they established, explaining each principle in plain spoken and understandable terms.  He then moves on to the important freedom issues of the current day, all of them under dispute from religious fundamentalism. He discusses the material with his consummate skill at communication. The reader will come away from the chapter on current issues with a much better understanding of the principles involved for both sides, secular and religious.  A few such issues under contention are end of life care, reproductive health, intelligent design, or creationism, churches endorsing political candidates and stem cell research. 

The final section of First Freedom provides 12 Frequently Asked Questions and Answers related to the First Amendment.  There is a very informative section with 20 Reasons readers need to protect religious liberty or secular liberty.  The book closes with 10 excellent suggestions of ways readers can help protect liberty in their communities, states and the nation. Barry Lynn has facts, figures and common sense at his command and conveys ideas to readers in a non-condescending, reasonable manner.  First Freedom is an excellent volume for citizens looking for a one stop book on First Amendment issues and practical advice to put such principles into action.  It is regrettable that such a well written and useful book has no bibliography, notes or index.

Kramnick, Isaac and R. Laurence Moore. The Godless Constitution: The Case Against Religious Correctness. New York; London: W.W. Norton and Company, 1996.

Moore, a Cornell professor of history, and Kramnick, a Cornell professor of government, have written an illuminating short volume that is concerned with the history of the making of the U.S. Constitution. They open with our present situation in the United States. In 1996, the religious fundamentalists made the same claims that they continue to maintain in 2011, that the United States is a Christian nation.  The authors, however, conclude that the United States Constitution is “indifferent to religion,” and they state what a good thing that is!

The authors write about Roger Williams, the Puritan expelled from Massachusetts Bay Colony in 1636 for, among other difficulties, criticizing the colony for religious intolerance. He went on to Rhode Island, extended religious tolerance there, and wrote The Bloudy Tenent of Persecution in 1644. Bloudy Tenent is a pioneer document proposing church-state separation. 

The authors discuss the English roots of the secular state, the “infidel Thomas Jefferson,” and the American Baptists and their contributions to the separation of church and state in American. There is an interesting chapter on Sunday mail, which was allowed despite protests from religious factions, but then lost its relevance with the railroads and the telegraphs.  There have been several attempts to add a religious amendment to the Constitution, the authors inform us, from around the time of the Civil War to 1954.  The 1954 failed amendment was worded:”This nation divinely recognizes the authority and law of Jesus Christ, Savior and Ruler of Nations, through whom are bestowed the blessings of Almighty God.”  The fundamentalists have not succeeded in changing the Constititution, but they have changed tactics.  They now embrace the Constitution and attempt to rewrite its history, claiming it was originally a Christian testament, which later godless generations disguised.

The final chapter of Godless is a discussion of America’s moral dilemmas and the authors’ conclusion that the framers committed Americans to an option that “recognized that social peace and personal happiness are better served by separating religious correctness from public policy.”

Godless Constitution is a short, fact-packed and very accessible volume. Atheist readers beginning to study the history of the United States Constitution will find it more rewarding than the advanced student.  The advanced reader may appreciate the book as a review of material formerly studied.  There is a very thorough section at the end with the authors’ sources. An excellent index has also been provided.

Pfeffer, Leo. (1953) Church, State and Freedom. Revised Ed. Boston, MA: Beacon Press, 1967. There is a reprinted edition dated 1989.

Constitutional lawyer Leo Pfeffer’s volume is still considered the “Bible of Church and State,” according to Susan Jacoby and other critics.  First published in 1953, revised by the author in 1967, and reprinted in 1989, this magisterial volume is in need of an update once again. But there is nothing quite like Pfeffer’s book for its scope, depth and intelligent interpretation of legal history. 

Pfeffer begins at the beginning, with primitive societies, which did not distinguish between the religious and the secular.  The author reminds readers how recent the concept of church-state separation is.  It is a modern development in the evolution of human society.  Church discusses the ancient priests and their subordination to the secular chiefs or kings. Pfeffer moves on to the Judaic system, the Greeks, and then provides a long and erudite history of the “Christian Church Triumphant” (for too long a time.)  Chapter Four explains how the principle of church-state separation was conclusively born in the state of Virginia, aided by the American politicians, Jefferson and Madison. Chapter Five is a discussion of the meaning of the principle of separation and how it has been interpreted over the years.

Pfeffer then delineates, chapter by chapter, the difficulties and issues involved in state aid to religion, church intervention in state Affairs, and state intervention in church affairs. There is an excellent chapter on released time- the practice of allowing school children time out of classes to attend religious instruction.  A chapter on the Bible and prayer in the public schools and religious practices in the public schools covers the issues and the difficulties involved very thoroughly.  Pfeffer writes on state and federal aid to parochial schools.  He comments at length on freedom and protecting domestic tranquility, and closes with a fine discussion on freedom and the general welfare.  No small detail is left neglected in Pfeffer’s exhaustive coverage, which demonstrates an impressive grasp of history, law, case law and legal philosophy. 

Church, State and Freedom is a breathtaking volume.  Pfeffer’s style is clear and engaging as he elucidates difficult cases and concepts.  This book is a must read for atheists interested in church-state and separation issues in the United States.  There are pages of end notes, an excellent bibliography and index.  Highly Recommended.

Articles of Merit

There are several articles that are concise explanations of atheism and the law which are essential reading for atheists beginning to study the subject.  The articles are cited in this section’s notes and works consulted.

Koepsell, David. “The Law and Unbelief.” In Tom Flynn, ed. The New Encyclopedia of Unbelief. Amherst, New York: Prometheus Books, 2007. 475-478.

Koepsell has provided readers with a very concise history of atheists’ deprivation of civil rights from classical times to the present. Koepsell is an extremely passionate and knowledgeable writer.

Boston,Robert. “Church, State and Religious Freedom.” In Tom Flynn, ed. The New Encyclopedia of Unbelief. Amherst, New York: Prometheus Books, 2007. 187-191.

Boston is a master of condensing large amounts of information into a few pages.  He fashions church-state issues into interesting and thought provoking essays.  His short article covers the history of separation of church and state from classical times to the present. The Establishment and Freedom Clauses’ principles are explained in an accessible and fascinating discussion, with accounts of cases that illustrate the issues. Boston discusses current threats to United States church-state separation and reminds readers that “more than two hundred years after Madison’s famous Memorial and Remonstrance against Religious Assessments, the nation seems prepared to debate the issue anew.”

Pages 189-190 offer 2 lists of important Establishment Cases and Freedom Cases decided by the Courts with short explanations.

Gey, Steven G. Atheism and the Freedom of Religion. In Michael Martin, ed. The Cambridge Companion to Atheism. Cambridge; New York: Cambridge University Press, 2007. 217-232.

Gey’s article is a fine essay on the legal protection of religious liberty and its growth over the last century.  He traces the philosophy of religious tolerance for unbelievers through John Locke, early America, and up to the present day with the advent of constitutional governments.  But he provides a very clear view of both the subtle and the overt manner in which atheists are put into an inferior position as citizens when they are forced to demand rights that are legally theirs. He believes the governments under which atheists live must be “comprehensively secularized” for atheists to attain equal religious liberty.

Further Reading

Edward Dumbauld, ed. The Political Writings of Thomas Jefferson. (1955); Erwin H. Polishook. Roger Williams, John Cotton and Religious Freedom: A Controversy in New and Old New England. (1967); Edwin S. Gaustad. Faith of our Fathers: Religion and the New Nation. (1987); David D. Hall. Worlds of Wonder, Days of Judgment: Popular Religious Belief in Early New England. (1989); Mario Montuori, ed. John Locke. A Letter concerning Toleration. (1963); Leonard Levy. The Establishment Clause: Religion and the First Amendment. (1986); Frank Lambert. The Founding Fathers and the Place of Religion in America. (2003); Christopher Hitchens. Thomas Jefferson: Author of America. (2009); Vashti McCollum. One Woman’s Fight. (1993); Daniel McCollum. The Lord was not on Trial. (1993.) Madalyn Murray O’Hair. Our Constitution: The Way It Was. (1988); O’Hair. An Atheist Epic: The Complete Unexpurgated Story of How Bible and Prayers Were Removed From the Public Schools of the United States. (1989.)

The Library of America Founding Fathers set is also available in single volumes. 

 Library of America Books are well respected for their excellence.  The books listed above may all be purchased individually as well.

There is a documentary, shown in early May, 2011, on Public Television, about Vashti McCollum’s fight against outside Christian groups teaching religious classes in the school house during school time and the coercion of students to attend. The landmark Supreme Court case and her story are compelling.  The title is: The Lord is not on Trial Here Today. It is a Peabody Award Winner. McCollum’s story is how the separation of church and state became part of American law.

The Teaching Company has many Courses on Different Aspects of the Law.  The classes, taught by outstanding Professors in the field, are each about a half hour long and there are generally 12 to 24 classes in a course. (  Some of the courses offered are: Natural Law and Human Nature; Civil Liberties and the Bill of Rights; Rights of Man: Great Thinkers and Movements; Cycles of American Political Thought; History of the U.S. Supreme Court; Freedom: The Philosophy of Liberation.

Separation of Church and School  By KATHERINE STEWART. New York Times. Published: June 11, 2011.

Katherine Stewart is the author of the forthcoming “The Good News Club: The Christian Right’s Stealth Assault on America’s Children.” (NY Times)  

Court Lets City Restrict Church Use of Schools By BENJAMIN WEISER. New York Times. Published: June 2, 2011.   (NY Times)

Update on New York School Use Case:

“Churches to Lose Use of School Space After a Legal Push Fails”
“The Supreme Court announced that it would not review a lower-court decision that backed the city’s decision to ban the evangelical congregation, the Bronx Household of Faith, from holding its Sunday services at Public School 15, where it has worshiped since 2002.” Full Story: (NY Times)


1 Wieman, Henry Nelson and Walter M. Horton. (1938)The Growth of Religion. Chicago: Willett, Clark and Co., 1987. 22.

2 Hopkins, E. Washburn. (1923) Origin and Evolution of Religion. Kessinger, Montana: Whitefish Publishing, 2003. 68.

3 Pfeffer, Leo. (1967) Church, State and Freedom. Rev. Ed.  North Carolina: Oceana Publishing, 1989.

4 Pfeffer, 16.

5 Gey, Steven G. “Atheism and the Freedom of Religion.” In Michael Martin, ed. The Cambridge Companion to Atheism. Cambridge; New York: Cambridge University Press, 2007. 252.

6 Koepsell,David. “The Law and Unbelief.” In Tom Flynn, ed. The New Encyclopedia of Unbelief.  Amherst, New York: Prometheus Books, 2007. 475.

7 Gey, 252.

8 Gey, 264.

9 Gaddy, C. Welton and Barry W. Lynn.  First Freedom First: A Citizens’ Guide to protecting Religious Liberty and the Separation of Church and State. Boston: Beacon Press, 2008. 15.

10 Sweet, William Warren. (1942) Religion in Colonial America. Revised Ed. New York: Cooper Square, 1965.

11 Sweet, 334.

12 Sweet, 229.

13 Koepsell, 477.

14 Koepsell, 477.

15 Koepsell, 478.

16 Church, Forrest, ed. The Separation of Church and State: Writings on a Fundamental Freedom by America’s Founders. Boston: Beacon Press, 2004. 56-72.

17 Boston, Robert. “Church, State, and Religious Freedom.” In Tom Flynn, ed. The New Encyclopedia of Unbelief. Amherst, New York: Prometheus Books, 2007. 188.

18 Boston, 188.s

19 Boston, 188.

20 Boston, 189.

21 Gaddy and Lynn, 80-81.

22 McCollum, James. “McCollum, Vashti.” In Tom, Flynn, ed. The New Encyclopedia of Unbelief. Amherst, New York: Prometheus Books, 2007.  530.

23 Miller, Robert T. and Ronald B. Flowers. Toward Benevolent Neutrality: Church, State and the Supreme Court. Waco, Texas: Marshall Press Fund, 1977.  464-489. (See List of Books Below for a newer edition of this classic.)

24 Gaddy and Lynn, 24-25.

25 Gaddy and Lynn, 24-25.

26 Gaddy and Lynn, 21.

27 Buckner, Ed. “Treaty of Tripoli.” In Tom Flynn, ed. The New Encyclopedia of Unbelief.Amherst, New York: Prometheus Books, 2007. 754-755.


American Civil Liberties Union. “Legal Discrimination Against Religious Disbelievers.” December, 1938.

Atheists’ Rights and Religious Expression in Public Schools: A Secular Perspective and Guide for Parents and Students.  Cranford, New Jersey: American Atheists, 2000.

Boston, Robert. “Church, State and Religious Freedom.” In Tom Flynn, ed.  The New Encyclopedia of Unbelief. Amherst, New York: Prometheus Books, 2007. 187-191.

Buckner,Ed. “Treaty of Tripoli.” In Tom Flynn, ed. The New Encyclopedia of Unbelief. Amherst, New York: Prometheus Books, 2007. 754-756.

Church, Forrest, ed. The Separation of Church and State: Writings on a Fundamental Freedom by America’s Founders. Boston: Beacon Press, 2004.

Cousins, Norman. In God We Trust: The Religious Beliefs and Ideas of The American Founding Fathers. New York: Harper and Brothers, 1958.

Gaddy, Welton C. and Barry Lynn. First Freedom First: A Citizens’ Guide to Protecting Religious Liberty and the Separation of Church and State. Boston: Beacon Press, 2008.

Gey, Steven G. “Atheism and the Freedom of Religion.” In Michael Martin, ed. The Cambridge Companion to Atheism. Cambridge; New York: Cambridge University Press, 2007. 250-266.

Hopkins, E. Washburn.(1923.) Origins and Evolution of Religion. New Haven: Yale University Press, 2003.

Koepsell,David. “The Law and Unbelief.” In Tom Flynn, ed. The New Encyclopedia of Unbelief.  Amherst, New York: Prometheus Books, 2007. 475-478.

Kramnick, Isaac and Laurence R. Moore. The Godless Constitution: The Case Against Religious Correctness. New York: Norton, 1996.

McCollum, James. “McCollum, Vashti.” In Tom Flynn, ed. The New Encyclopedia of Unbelief.Amherst, New York: Prometheus Books, 2007. 530-531.

Menendez, Albert J. Classics of Religious Liberty. n.p.: Americans United Research Foundation, 1978.

Miller, Robert T. and Ronald B. Flowers.  Toward Benevolent Neutrality: Church, State, and the Supreme Court.  Waco, Texas: Markham Press Fund, 1977. Newest 5th Ed. with Flowers, Rogers and Greene, 1996.

Moore, Charles C. (1899). Behind the Bars: 31498.  Austin, Texas: American Atheist Press, 1990.

Pfeffer, Leo. Church, State and Freedom.  Rev. Ed. Boston: Beacon Press, 1967. Newest Edition, 1989.

Swancara, Frank. “Judicial Aspersions on the Non-Religious.” Journal of Criminal Law and Criminology. 123, no. 2 (July-August 1932.)

Sweet, William Warren. (1942) Religion in Colonial America. Rev. Ed. New York: Charles Scribners, 1965.

Wieman, Henry Nelson and Walter M. Horton. (1938)The Growth of Religion. Chicago: Clark and Company, 1987.

Wright, Herbert. “Religious Liberty Under the Constitution of the United States.” Virginia Law Review 27, no.1. (1940.)

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