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For First Amendment Purposes, Is Atheism a Religion?

After reading our recent articles about the situation at the New Mexico Museum of Natural History and Science (see here, here, and here), you might wonder whether courts even recognize “atheism” as a religion. Does it violate the Constitution for the government to endorse atheism? In fact, a number of cases have indeed found that for First Amendment purposes, atheism is a religion.

In School District of Abington Township v. Schempp, the U.S. Supreme Court recognized that “the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.”1 Government advancement of nontheistic or atheistic religious viewpoints would thus presumably be subject to the same limitations of the Establishment Clause as the prohibition against endorsing traditional theistic religious viewpoints. Indeed, the Supreme Court has held that non-theistic viewpoints can qualify as religious when they “occupy the same place in [a person’s] life as the belief in a traditional deity holds,”2 “occupy . . . ‘a place parallel to that filled by God’ in traditional religious persons,”3 or comprise “an aspect of human thought and action which profoundly relates the life of man to the world in which he lives.”4 In one case, the U.S. Supreme Court specifically listed “Secular Humanism” as a religious viewpoint.5

Importantly, the widely used Lemon test requires that “principal or primary effect” of a government policy “must be one that neither advances nor inhibits religion.”6 In other words, if the government starts endorsing atheists who are bashing religion, then that could violate the Establishment Clause.

In 2005, the Supreme Court reiterated its view that religion should not be defined narrowly,7 and the Seventh Circuit likewise observed that “the Court has adopted a broad definition of ‘religion’ that includes non-theistic and atheistic beliefs, as well as theistic ones.”8 The Seventh Circuit went on to note that “[t]he Supreme Court has recognized atheism as equivalent to a ‘religion’ for purposes of the First Amendment on numerous occasions[.] . . .”9 Earlier, the Seventh Circuit had observed that “[i]f we think of religion as taking a position on divinity, then atheism is indeed a form of religion.”10 Thus, atheism can be a religion for the purpose of constitutional analyses.

Now getting courts to enforce this is another matter. Only a handful of cases have found that some government action established atheism or inhibited religion. (For a review of some of these cases, see “Zeal for Darwin’s House Consumes Them: How Supporters of Evolution Encourage Violations of the Establishment Clause.”) But there’s plenty of precedent for at least the bare minimum view that atheism is a religion.

How this plays out in New Mexico remains to be seen.

(1) Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (citations and internal quotation marks omitted) (explaining that a secular education is not per se unconstitutional) (emphasis added).
(2) United States v. Seeger, 380 U.S. 163, 187 (1965).
(3) Welsh v. United States, 398 U.S. 333, 340 (1970).
(4) McGowan v. Maryland, 366 U.S. 420, 461 (1961).
(5) Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961).
(6) Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added). See also Smith v.
Bd. of Sch. Comm’rs of Mobile County
, 827 F.2d 684, 690, 692 (11th Cir. 1987) (equating
“inhibiting religion” with exhibiting “an attitude antagonistic to theistic belief” or attempting
to “discredit it”).
(7) See McCreary County, Ky. v. ACLU, 545 U.S. 844 (2005). The majority wrote that “[t]he dissent says that the deity the Framers had in mind was the God of monotheism, with the consequence that government may espouse a tenet of traditional monotheism. This is truly a remarkable view.” Id. at 879.
(8) Kaufman v. McCaughtry, 419 F.3d 678, 682 (7th Cir. 2005).
(9) Id.
(10) Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003).