JR'S Free Thought Pages
No Gods ~ No Masters
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Atheism and the Freedom from Religion The Persecution of Atheists throughout History
The legal protection of religious liberty has become an increasingly common phenomenon during the last century. The growth of religious liberty can be linked to the development of modern political theories organized around the concept of constitutional democracy. These theories combine the traditional democratic emphasis on popular control of government with an elaborate constitutional framework. This framework is characterized by structural limits on the exercise of governmental power, the development and protection of civil society, guarantees of personal privacy, and the legal protection of a broad range of individual civil liberties. A comprehensive version of this theory has been articulated and applied by the U.S. Supreme Court since World War II. More recently, variations on this theory have become primary features of the domestic constitutional systems of countries comprising the European Union and in the development of the constitutional structure governing the union as a whole. A central theme of modern theories of constitutional democracy is that certain aspects of private belief, expression, and behavior are placed beyond the government's control. Religious belief and practice are quintessential examples of activities that are protected by this presumption that citizens are intellectually and spiritually autonomous. Democratic governments are therefore required to leave matters of faith and religious observance to private individuals and their voluntary associations. Likewise, modern theories of constitutional democracy prohibit governments from overtly or subtly coercing religious belief by granting benefits or imposing sanctions or punishments based on the nature of an individual's religious faith. For more than two hundred years the U.S. Constitution has included religious exercise among several individual rights specifically protected by a Bill of Rights. Likewise, the governments of many Western countries - along with the European Union itself - have begun to incorporate into their own written constitutions the explicit protection of private thought, expression, and behavior. Like the U.S. Constitution, the European constitutional provisions also specifically include the protection of religious activity, and European countries have begun rigorously enforcing these protections through some type of judicial review of governmental action. Asian countries such as the People's Republic of China and Thailand also have constitutional provisions guaranteeing religious liberty, although judicial enforcement of these provisions is more sporadic and inconsistent than in the West. The framework of limited democratic government within a regime of constitutionally protected private action provides a structure for protecting atheists and agnostics, as well as religious dissenters and other followers of non-traditional faiths. The democratic notion that religious liberty is a private affair that is immune from governmental control renders religion irrelevant to the exercise of government power. Thus, the logic of modern democratic theory would seem to require that atheists enjoy the same protections traditionally offered to a diverse range of mainstream religious believers. The religious liberty jurisprudence in most constitutional democracies recognizes the need to protect atheists and agnostics. Most countries that extend legal protection to diverse forms of religious belief also protect nonbelievers from the imposition of direct government sanctions. But even in countries that have strong legal protections of religious liberty, governments are often permitted to profess the nation's collective allegiance to religious belief in a manner that subtly marginalizes atheists. Although most European countries no longer maintain officially established churches, many of those countries continue to provide government funds for religious schools and other church expenses. In addition to formal legal recognition or endorsement of religious belief, many cultural factors also serve to limit the extent to which atheists can fully exercise their political rights. This is especially true in countries such as the United States, where religious belief and public devotion play a prominent role in the political culture. In the United States, atheists are culturally and politically isolated because of the common assumption that political actors must demonstrate religious devotion as part of their public duties. This assumption persists despite the fact that the U.S. Constitution has one provision protecting religious exercise, another provision separating church and state, and a vibrant history of judicial enforcement of religious liberty. Thus, in the United States and other countries with similar traditions of religious liberty, atheism often suffers from a quasi-legal cultural ostracism that is inconsistent with the principles that provide the justification for the formal legal protection of individual rights of conscience. The scope of legal protection afforded atheists and agnostics within most existing democratic systems can best be understood by identifying two different but related aspects of religious liberty. The first involves protection from the imposition of direct governmental sanctions on the refusal to embrace religious faith. The second involves the prohibition of official government favoritism toward religion in general or toward a select group of religions in particular. Most modern constitutional democracies effectively enforce the first aspect of religious liberty; it is the second aspect of religious liberty that often receives inadequate protection. The details of both aspects of religious liberty are discussed below after a brief review of how atheists were treated during the period in which modern conceptions of religious liberty developed. ATHEISM AND THE EARLY DEVELOPMENT OF RELIGIOUS LIBERTY Prior to the development of modern conceptions of religious liberty, atheists had no effective legal protection. The legitimacy of pre-modern governments rested on claims of divine right, which were directly threatened by atheistic beliefs that denied the existence of the divinity. Because of the political threat posed by atheists, pre-modern governments denied any protection to atheists, and indeed targeted atheists for the most serious kinds of legal persecution. Philosophical support for this persecution is abundant in early Western philosophy. Western philosophers as diverse as Plato and Thomas Aquinas argued that atheism is inherently dangerous to the social and political culture and therefore should be punished as a crime against society. They argued that atheists should be excluded from the political culture, forcibly reeducated, and in some cases put to death.1 The notion that disbelief in God disqualifies the atheist from political participation or legal protection was common even among early humanists. Thomas More, for example, described a Utopia in which religious tolerance would extend to all residents except those who did not believe in God or the immortality of the soul.2 The modern tradition of religious liberty in the West can be traced to the efforts of classical liberals, such as John Locke, who, like Thomas More, attempted to describe a legal regime in which the state would tolerate individual adherents of diverse religious creeds. Unlike his more illiberal predecessors, Locke did not advocate the execution of atheists. However, his tolerance was not complete. Although Locke's efforts to protect religious dissenters advanced the cause of liberty for religious believers who belonged to unpopular sects, Locke resembled his pre-liberal humanist predecessors in that he refused to grant atheists and agnostics the same political and legal rights and privileges enjoyed by their more devout fellow citizens. Locke would not kill atheists, but neither would he trust them with the full benefits of citizenship. There is an ongoing debate about the reasons for Locke's reluctance to grant tolerance to atheists. Although modern theorists such as David A. J. Richards have attempted to salvage from Locke a form of tolerance that encompasses atheists as well as believers,3 it is difficult to avoid the sectarian exclusionism of early liberal theory. Locke's stated reasons for refusing to tolerate certain groups were directly related to his conception of democracy. Locke denied protection to members of the Muslim and Catholic faiths, for example, because he believed that the members of those religious groups were inherently disloyal.4 Locke believed that the members of those faiths instinctively owed allegiance to other sovereigns, and therefore could not be tolerated in a liberal democratic state. Like John Milton, Locke viewed Catholicism as '"a priestly despotism under the cloak of religion,' which 'extirpates all religious and civil supremacies.'"5 In contrast to his attitude toward Catholics and Muslims, Locke denied toleration to atheists not because atheists were traitors, but rather because atheists could not be trusted to uphold oaths and promises. "Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all."6 Locke focused on the perceived untrustworthiness of atheists in part because he believed that this characteristic is relevant to two areas of legitimate governmental concern: first, the government's ability to ensure that an atheist is capable of providing truthful testimony under oath in a court of law and, second, government's ability to enforce contractual promises. As to the latter interest, untrustworthy atheists threatened to undermine the ability of the new liberal governments to protect the economic marketplace that was developing in conjunction with the political structure of classical liberalism.7 Locke also argued that the tolerance of atheists would lead to other politically problematic consequences. In addition to undermining promises and oaths, Locke believed that permitting atheists to speak freely potentially could weaken the religious faith that is necessary for the general population to exercise sound moral judgment. Thus, atheism poses a direct threat to the civic virtue that is the political backbone of democratic liberalism. Locke believed that a democratic government has the authority to address the threat to its basic values by legally regulating atheism. From Locke's perspective, one must first accept the dominion of religion to obtain the fruits of religious tolerance. "Those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration."8 Whatever the rationale justifying intolerance of atheists, legal persecution of atheists was widespread in the early modern liberal states. In England, for example, atheists continued to suffer severe legal disabilities until the end of the nineteenth century. There were several notorious public episodes that illustrate the government's discriminatory treatment of atheists. The poet Shelley, for example, was expelled from Oxford in 1811 after publishing a pamphlet entitled "The Necessity of Atheism." This tract also contributed to the British courts' decision to deny Shelley custody of his two children after the death of his first wife Harriet, a decision that was not an uncommon experience for avowed atheists. In addition to denying atheists custody of their children, British - courts also denied atheists the right to give evidence in court. This legal disability was finally abandoned in 1869, with the passage of the Evidence Amendment Act. Perhaps the most notorious instance of legal discrimination against an atheist during the nineteenth century was the exclusion of Charles Bradlaugh from the British Parliament. Bradlaugh was an avowed atheist and one of the founders of the National Secular Society. In 1880, Bradlaugh was elected to the House of Commons to represent Northampton. The House voted to deny Bradlaugh the right to affirm rather than swear on the Bible his oath of office, and expelled him from Parliament. Bradlaugh unsuccessfully attempted to take his seat in Parliament on several other occasions during the next decade. He was forcibly expelled from the House numerous times, fined for voting illegally, and once even imprisoned in the Tower of London. He was reelected three times - in 1881, 1882, and 1884 - and was finally seated in 1886 when the new Speaker of the House refused to interfere with his affirmation. John Locke's reasons for refusing to extend legal toleration to atheists provided a common theoretical justification for the persecution of atheists in England during the nineteenth century. But in many ways, these official attacks on religious disbelief could not be sustained within the broader philosophical atmosphere created by the Enlightenment. The empiricism, intellectual skepticism, and scientific upheaval engendered by the Enlightenment, along with its larger social and economic context, made it increasingly difficult to sustain the strong legal protection of religious authority. Even during Locke's day, some of the philosophical literature reflected this tension. Pierre Bayle was a contemporary of Locke's who wrote widely disseminated philosophical tracts on many of the same subjects of tolerance and religious liberty. Bayle went significantly beyond Locke, however, in applying the emerging Enlightenment intellectual framework to critique the legal protection of religious belief. Unlike Locke, Bayle argued that the government should not enforce religious belief through law, nor should the government refuse to extend theories of social and intellectual toleration to religious disbelief. Bayle argued that the same concept of individual autonomy that protects Protestants from oppression by Catholic political regimes (and vice versa) should also protect atheists from governments controlled by religious believers. According to Bayle's version of tolerance theory, if one assumes that individuals are autonomous beings and that each individual has the right to make decisions about moral obligation and religious belief, then governments have a corresponding political duty to respect individual decisions about matters of religious faith. The government's duty to tolerate every citizen's interpretation of personal morality applies even if the individual arrives at the conclusion that God does not exist. Although Bayle's approach to religious liberty was characterized as a position of tolerance, it owed much more than Locke did to a modernist sensibility of intellectual skepticism rather than paternalistic forbearance. This sensibility inevitably produces a liberalizing effect on society. If the spirit of skepticism provides the intellectual framework of the modern world, then no collective entity (such as a government) has the intellectual authority to undercut that framework by imposing through law a particular set of debatable (and un-provable) precepts about the existence of God. ATHEISM AND THE EARLY AMERICAN RELIGIOUS EXPERIENCE It would take England and most other European countries over two hundred years after Locke wrote his "Letter Concerning Toleration" to extend religious tolerance to nonbelievers. In the United States, on the other hand, the situation was somewhat different. The differences were in some ways more favorable to the protection of atheists and in other ways less so. With the ratification of the U.S. Constitution in 1788 and the ratification of the Bill of Rights in 1791, the United States adopted the broadest possible articulation of the principle of religious liberty. The form of this protection logically extended to atheists. Indeed, the phrasing of the U.S. Constitution leaves religious decisions entirely to individual citizens and places religion outside the scope of the government's concern. One of the enduring paradoxes of the American approach to religious liberty is that the country is both constitutionally secular and politically religious. On one hand, the United States was one of the first nations to adopt constitutional provisions explicitly insulating the government from religious influence. On the other hand, the United States also has a greater tendency than almost every other Western country to officially embrace religion and thereby politically ostracize atheists. The ostracism of atheists in the United States is social as well as political in nature, which is not surprising in a country in which the citizens have one of the highest rates of religious affiliation in the West. The political system in the United States directly reflects the religious beliefs and prejudices that prevail among the population at large. This phenomenon seems to contravene the constitutional prohibition on any government action "respecting" an establishment of religion. Despite the phrasing of the Constitution, however, the U.S. government frequently includes overt religious endorsements in many of its official pronouncements. Disputes over the legality of the government's endorsement of religious faith have been common throughout the country's history and continue to this day. In many ways, the current conflicts over whether the U.S. government is primarily secular or religious reflect disputes that have defined the nation's political structure since its founding. The nation was founded in between two so-called Great Awakenings, during which religious devotion and fervor ran high. When the Constitution was ratified in 1788, six of the original thirteen states had some form of religious establishment. These state establishments usually took the form of mandatory tithes. In these states, citizens were required to pay a mandatory religious tax, which the state would collect and then forward to religious organizations. By the time the Constitution was adopted, all of the American states had abandoned European-style systems in which the government established a single church. In place of single establishments, the six American states that had some form of establishment had adopted so-called multiple establishments. Under this system, the states that maintained religious establishments would collect the religion taxes and then distribute the revenues to a church chosen by the taxpayer or on a proportional basis to every religious organization within the state based on the percentage of the population that belonged to each denomination. Atheists were automatically precluded from benefiting from this system of multiple establishments because atheists did not worship and therefore did not participate in formalized exercises of the sort that was financed by the religion taxes. In contrast to the six states that still had some form of established religion, seven of the original thirteen states had abandoned any form of religious establishment by the time the Bill of Rights was ratified in 1791. Some of these states never had an official religious establishment at any time in their existence. Some states were founded by religious groups and persisted in their religious character, other states had never been religious, and still other states had been religious but had moved toward a secular model of governance. Thus, the United States had within its own borders a wide continuum of perspectives on religious liberty and the proper role of religion in public life. One of the most important battles over religious establishments came in 1784-85 in the state of Virginia. This battle concerned Virginia Governor Patrick Henry's proposal to revive the Virginia system of multiple religious establishments.9 James Madison was in the Virginia legislature at the time, and opposed the proposal. During the political battle over this legislation, Madison produced a document entitled the "Memorial and Remonstrance against Religious Establishments," which remains one of history's most forceful arguments against the alliance of religion and government. In the "Memorial," Madison reiterated the theory that religion is a private affair that is a protected aspect of individual autonomy, and should therefore be "exempt from [government's] cognizance."10 Madison argued that multiple establishments were just as oppressive as single establishments because "Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?"11 He also expressed in very harsh terms the tendency of religiously based governments to debase both religion and government: During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution…What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny, in no instance have they been seen the guardians of the liberties of the people. Rulers, who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.12 The effect of the "Memorial" was immediate. Within a year, the Virginia legislature rejected the governor's proposal to collect a religion tax, and instead enacted Thomas Jefferson's "Act for Establishing Religious Freedom." The operative provision of this act states: No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.13 The Virginia experience and its strong articulation of religious liberty would greatly affect the legal landscape of the nation as a whole. It also provided a theoretical justification for extending religious liberty protections to atheists. Unlike many earlier arguments for religious liberty, the "Memorial" phrased the concept in terms of freedom from religion as well as freedom of religion. A few years later James Madison would move on to Congress in Washington, where he would draft the Bill of Rights. The Virginia battle provided Madison with a rich backdrop (and some specific language) for the religion clauses of the First Amendment. Thomas Jefferson would also play a large role in the development of American religious liberty, and its extension to atheists. When Jefferson campaigned for President in 1800, his political opponents focused a great deal of attention on his religious beliefs. Jefferson was not an atheist, but he had very liberal views for the time. He was a deist; he believed in a naturalistic God who did not intervene directly in human affairs. Jefferson even composed a version of the Bible that excluded all references to miracles, the virgin birth, the divinity of Jesus, and the resurrection. Jefferson's political opponents routinely alleged that Jefferson was an atheist, and Jefferson's religious views were a focal point of political attacks on him. One set of slogans used by Jefferson's opponents in the presidential election of 1800 urged voters to choose "God -and a Religious President... [or] Jefferson, and no God."14 Another opponent, who was also a Dutch Reformed minister, issued a pamphlet in which he argued, "On account of his disbelief in the Holy Scriptures, and his attempts to discredit them, [Jefferson] ought to be rejected from the Presidency."15 Jefferson won the presidency despite these attacks, and while serving as President he made several efforts to enshrine his views of religious liberty in the law. Unlike other Presidents, Jefferson steadfastly refused to issue religious proclamations or proclaim official days of prayer or thanksgiving. His most famous pronouncement on the subject of religion and government was contained in a letter sent to the Danbury, Connecticut, Baptists, in which Jefferson argued that the Constitution had built "a wall of separation between Church and State."16 Almost a century later, the Supreme Court would write that this statement "may be accepted almost as an authoritative declaration of the scope and effect of the [First] amendment."17 It seems clear that the two major figures in the development of the American constitutional guarantees of religious freedom intended to create a secular government, which neither advanced religion nor discriminated against it. Under such a regime, atheists would be granted full political rights and allowed to participate in public life on equal terms with religious believers. But in contrast to Jefferson's and Madison's detailed theoretical approach to the issue of religious liberty, the country continued to be divided along religious lines. It is telling that Jefferson's political opponents believed that it would be an effective political tactic to assert that Jefferson was an atheist. These attacks indicate that a substantial part of the American political constituency viewed atheism as a disqualification for political office. These attacks also indicate the depth of feeling among members of the religious majority in the United States during the early years of the country's existence, and reveal how reluctant the religious majority was to concede political power to those outside the religious fold. These debates have not yet abated. The continuing debate over the relative merits of religious and secular politics produces contrasting paradoxes in the United States and other Western countries. In many ways, the debate in Western countries other than the United States has been definitively settled in favor of greater effective freedom for atheists. In the United States, on the other hand, the political context is much the same as it was in 1800, with the country bitterly divided along religious lines. Those on the religious side of the dividing line continue to assert that the government is "under God" and that atheism is incompatible with the nation's basic spirit. The paradox is that the U.S. Constitution contains some of the strongest secular mandates of any governing document in a modern Western democracy. Thus, the strong protection of religious liberty for atheists in the legal culture contrasts sharply with the effective exclusion of atheists from the political culture. The following passage from Alexis de Tocqueville's early nineteenth-century book Democracy in America provides a remarkably accurate description of modern America: In the United States it is not only mores that are controlled by religion, but its sway extends even over reason. Among the Anglo-Americans there are some who profess Christian dogmas because they believe them and others who do so because they are afraid to look as though they did not believe in them. So Christianity reigns without obstacles, by universal consent; consequently, as I have said elsewhere, everything in the moral field is certain and fixed, although the world of politics seems given over to argument and experiment.18 The contrast between the treatment of atheists in the United States and other Western countries is explored below using a framework that divides the legal protection of nonbelievers into two categories. The first category describes the legal protection of atheistic beliefs, expressions, and practices. The second category describes the legal constraints on incorporating religion into the government's structure and legal policies. ATHEISM AND THE PROTECTION OF INDIVIDUAL RELIGIOUS LIBERTY Legal protection of atheism and atheists is now the norm in modern Western constitutional democracies, at least in the sense that courts do not permit governments to impose legal sanctions on individuals simply for expressing atheistic ideas or denying the existence of God. This broad legal protection of nonbelievers is a relatively recent phenomenon. As noted above, the British government routinely discriminated against atheists in a range of different legal contexts as recently as the nineteenth century. Until the latter part of the century, atheists could not give evidence in court or be seated in Parliament. The American experience was similar. Tocqueville reports witnessing a trial in New York in 1831, for example, in which a witness "did not believe in the existence of God and denied the immortality of the soul. The judge refused to allow him to be sworn in, on the ground that the witness had destroyed beforehand all possible confidence in his testimony."19 Such episodes are rare in most Western countries today, in large part because of the profusion of constitutional provisions that explicitly prohibit governments from punishing individuals for their beliefs and expression about religious ideas, including atheistic ideas. The U.S. Constitution, for example, states that "no religious Test shall ever be required as a Qualification to any Office or public Trust."20 The First Amendment to the Constitution also denies government the authority to "prohibit the free exercise" of religion.21 European constitutions have similar provisions. Article 9 of the European Convention of Human Rights states, "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom... to manifest his religion or belief, in worship, teaching, practice and observance." Article 14 of the convention prohibits discrimination on the basis of religion. Both the U.S. Constitution and the European Convention refer to religion and religious adherents, without specifying whether the same rights and freedoms extend to atheists. In contrast, some domestic constitutions governing individual European countries specifically mention the freedom to be nonreligious. Article 4 of the German Basic Law (which is the German Constitution) recognizes that "Freedom of creed, of conscience, and freedom to profess a religious or nonreligious faith are inviolable."22 Article 136 of the Basic Law states that civil and political rights may not depend on the exercise of religion and that no one is bound to reveal his or her religious affiliations or perform any religious act or oath. Similarly, the Hungarian Constitution protects both the "freedom of conscience and freedom of religion," and specifically protects the "freedom to publicly or privately express or decline to express, exercise and teach such religions and beliefs."23 The Belgian Constitution states, "No one can be obliged to contribute in any way whatsoever to the acts and ceremonies of a religion, nor to observe the days of rest."24 The Russian Constitution guarantees "the right to profess, individually or jointly with others, any religion, or to profess no religion."25 Each of these constitutional provisions, including the provisions that do not specifically mention the freedom to practice atheism, is broad enough to protect atheists from the sorts of overt legal sanctions or legal disabilities that were common prior to the twentieth century. It should be noted, however, that there are very few reported instances in which atheists have attempted to enforce these constitutional rights in judicial proceedings. Cultural factors may have made judicial enforcement of these rights unnecessary in many jurisdictions. These factors include the growing secularization of European culture and various aspects of multiculturalism and globalization, which has resulted in increased migration across national borders and the diversification of formerly homogeneous societies. As a result, overt legal discrimination against atheists is no longer common in most industrialized Western countries. The more common source of legal action against atheists occurs when atheistic or antireligious ideas are expressed in a fashion that offends the sensibilities of the dominant religious culture. Great Britain, for example, maintains the common-law crime of blasphemy. This crime applies to any publication that contains "any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established."26 The crime applies to the manner and form of antireligious speech, rather than the content. Thus, religion may be criticized, but only in "decent and temperate language."27 The House of Lords upheld a conviction for this crime in 1979,28 and in 1996 the European Court for Human Rights ruled in another case that British blasphemy law does not violate the free speech protections of Article 10 of the European Convention of Human Rights.2? British blasphemy law applies only to expressive attacks on Christianity. Other laws in Britain and continental European countries provide for criminal sanctions for expressing religious hatred generally. The problem with all these laws is that they are so vaguely phrased that they could easily be used (as in the British blasphemy prosecutions) to suppress abstract beliefs about religion in general as well as direct threats against particular religious practitioners. Atheistic speech - which often denies the coherence or rationality of religious belief - may be susceptible to criminal sanctions under such a legal regime. Thus, public discussion of religious ideas is subtly skewed in favor of religion by legally mandating deference to religious ideas to which a nonbeliever strenuously objects. The proliferation of speech regulations that encompass religious speech indicates that the religious exercise protections in most modern constitutions may be less important in protecting the liberty of atheists than the generic free speech and free expression protections of the same constitutions. The First Amendment to the U.S. Constitution contains such a provision, which has been interpreted to prohibit any government censorship of the viewpoint of those speaking on religious topics. European constitutions contain similar provisions, although as the recent British blasphemy decision indicates, these provisions are not yet as protective of religiously antagonistic speech as the American First Amendment. The general principle nevertheless has been recognized. As a concurring opinion in a recent European Court decision recently noted, the "religious dimension" of freedom of expression constitutes "one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics and the unconcerned."30 ATHEISM AND GOVERNMENTAL ENDORSEMENT OF RELIGION A second aspect of religious liberty in modern Western legal systems involves constitutional and other legal constraints preventing governments from incorporating religion into their policies and laws. In many respects, these structural constraints are even more important than direct protections from religious coercion. Structural constraints prevent governments from subtly reinforcing patterns of religious favoritism and discrimination against atheists that are prevalent in civil society. Structural constraints also prevent governments from comprehensively incorporating religion into public affairs in a manner that effectively denies atheists full participation in the political culture. A brief example from the American constitutional jurisprudence will illustrate the last point. The First Amendment to the U.S. Constitution prohibits the government from passing any law "respecting an establishment of religion."31 For many years the Supreme Court has interpreted this phrase to prohibit the government from passing any law or engaging in any activity that has the purpose or effect of endorsing religion. This broad rule is justified by the need to protect the political process from religious domination. "Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message."32 These messages of inclusion and exclusion are problematic from a political standpoint because they impermissibly "make religion relevant, in reality or public perception, to status in the political community."33 In many ways, the insulation of the political process from religion is the single most important legal mechanism for the protection of religious liberty. The incorporation of religious principles into government policies or the use of religious overtures or symbolism in official pronouncements or insignia inevitably distorts the intellectual marketplace in a way that subtly undercuts the equality between religion and atheism that is the sine qua non of religious liberty. Separation of church and state can thus be viewed as an indispensable prerequisite to a system of religious liberty. Most European constitutions now mandate the separation of church and state. The most recent example of the trend in Europe is the new draft of the European Constitution. The drafters of the proposed Constitution rejected calls from the Catholic Church and other religious groups to recognize Europe's Christian roots. God and religion were omitted from the document, as was any mention of a state church. The various national constitutions throughout Europe are mostly to the same effect. According to the German Basic Law, for example, "There is no state church."34 The French Constitution begins by noting that "France is an indivisible, secular, democratic and social Republic."35 The principle of laicite - or "secularism" - has been central to the French political self conception for at least a century, and the same principle now defines the political landscape throughout Europe. Despite these formal renunciations of religious establishments, many European countries continue to involve the state in religion, especially religious education. Although it does not have a state church, for example, the Belgian government finances religious education, and the Belgian Constitution states, "All pupils of school age have the right to moral or religious education at the Community's expense."36 Likewise, although the German Basic Law renounces the concept of an established church, it is common for German schools in some Lander (states) to teach explicitly Christian values in state schools. Even the French government, which has probably the most secularized political structure of any European country, provides state financing for the maintenance of certain religious structures and permits Catholic priests and nuns to engage in religious counseling on the premises of state schools. None of these deviations from the norm of governmental secularism comes close to disenfranchising atheists, as was common prior to the twentieth century. Nevertheless, these instances of governmental assistance to religion place gentle pressure on the social scale in favor of religion and against the values of those who reject religious faith. More important, government financial support of religious schools and other enterprises directly coerces atheists, in that nonreligious citizens are being forced to support financially (through their taxes) religious enterprises whose primary objectives are anathema to atheists. Under any analysis this involves a direct affront to the religious liberty of atheists. Perhaps these examples are merely the residue of an earlier political era in which church and state were complementary institutions. Today almost every Western country has accepted the principle of modern constitutional democracy, which requires the complete secularization of government. Determining how the principle of secularism should be applied to particular social or educational programs will require revisiting longstanding social practices in light of the new secular political reality. This may lead to the elimination of many political benefits that governments have historically bestowed upon the church. In many ways the Europeans face a simpler task than those in the United States in reconciling their traditions of support for religion with new secular constitutions. In contrast to Europe, the United States operates in a political atmosphere that is deeply contradictory. On the one hand, the United States operates under one of the oldest constitutional mandates of religious disestablishment, has a specific constitutional provision prohibiting religious tests for public office, and draws on an honored legacy of constitutional theory articulating the need for a "wall separating church and state." In these respects, atheists are afforded religious liberty on a par with traditional religious adherents. On the other hand, the political culture in the United States is infused with obligatory expressions of public piety, much of the population views atheism as antisocial if not unpatriotic, and the government has responded to the religious views of the population by overtly endorsing religious values. The government has gone so far as to insert the words "under God" in the official Pledge of Allegiance and place "in God we trust" on its currency. In these respects, atheists are effectively precluded from participating fully in the public life of their country, which is another way of saying that atheists do not yet possess the full measure of religious liberty granted to their fellow citizens. CONCLUSION The religious liberty of atheists has come a long way since the days in which serious political theorists could argue that atheists should be put to death, denied the ability to give evidence in court, or prohibited from becoming a Member of Parliament. But as the experience in the United States illustrates, protecting atheists from criminal punishments or other legal sanctions is not sufficient to protect their liberty. Atheists will not enjoy the same religious liberty as religious adherents unless the government under which they live is comprehensively secularized. This does not mean enshrining atheism as the new state religion. As the U.S. Supreme Court once observed, "A secular state, it must be remembered, is not the same as an atheistic or antireligious state. A secular state establishes neither atheism nor religion as its official creed."37 Only a government defined in terms of collective agnosticism can ensure the conditions of liberty in which individual believers and nonbelievers can coexist peacefully in order to pursue their own personal visions of the ultimate good. NOTES 1. See, e.g., Plato's extensive discussion of the proper treatment of the impious in Book X of The Laws. Plato, The Laws of Plato, ed. Thomas L. Pangle (New York: Basic Books, 1980), pp. 280-311. 2. More's Utopians believed that anyone denying the immortality of the soul "has degraded the sublimity of his own soul to the base level of a beast's wretched body. Still less will they count him as one of their citizens, since he would openly despise all the laws and customs of society, if not prevented by fear." Thomas More, Utopia, ed. George M. Logan and Robert M. Adams (Cambridge: Cambridge University Press, 1975), p. 95. 3. See David A. J. Richards, Toleration and the Constitution (Oxford: Oxford University Press, 1989). 4. John Locke, A Letter Concerning Toleration, ed. Mario Montuori (The Hague: Martinus Nijhoff, 1963), pp. 91-93. 5. Christopher Hill, Milton and the English Revolution (London: Penguin, 1977), p. 155. 6. Locke, A Letter Concerning Toleration, p. 93. 7. For the classic discussion of the linkage between Locke's political and economic theories of classical liberalism, see C. B. MacPherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1964). 8. Locke, A Letter Concerning Toleration, p. 93. 9. For a succinct account of the battle in Virginia, see Leonard Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), pp. 51-62. The book also contains one of the best surveys of the different approaches to religious establishment taken by the various states in the early republic.
10. James Madison, Memorial and Remonstrance
against Religious Establish 11. Ibid., para. 3. 12. Ibid., paras. 7-8. 13. Thomas Jefferson, "A Bill for Establishing Religious Freedom," in Merrill D. Peterson (ed.), The Portable Thomas Jefferson (New York: Penguin, 1975), p. 253. 14. Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton: Princeton University Press, 2003), pp. 276-77. 15. Ibid., p. 265. 16. Thomas Jefferson, "Letter to Nehemiah Dodge and Others, a Committee of the Danbury Baptist Association, in the State of Connecticut," in Peterson (ed.), The Portable Thomas Jefferson, p. 303. 17. Reynolds v. United States, 98 U.S. 145, 164 (1878). 18. Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer, trans. George Lawrence (New York: Perennial, 1969), p. 292. 19. Ibid., p. 293. 20. U.S. Constitution, article VI, sec. 3. 21. U.S. Constitution, amendment I. 22. German Basic Law, article 4. 23. Hungarian Constitution, article 60. 24. Belgian Constitution, article 20. 25. Russian Constitution, article 28. 26. Regina v. Lemon [1979] Appeal Cases 617, 665. 27. Ibid. 28. The 1979 case involved a poem published in the London tabloid Gay News, which suggested that Jesus had engaged in sexual relations with his disciples and the Roman Centurions who presided over his crucifixion. 29. See Wingrove v. United Kingdom, 24 Eur. H.R. Rep. 1 (1997). This case involved the video Visions of Ecstasy, which contained a fictional depiction of a nun's erotic fantasies, including one with the figure of the crucified Christ. 30. Kokkinakis v. Greece, 17 Eur. H.R. Rep. 397, 418 (1994) (Mr. Loucaides, concurring). 31. U.S. Constitution, amendment I.
32. Wallace v. Jaffree, 472 U.S. 38, 68
(1985) (O'Connor, J., concurring). 34. German Basic Law, article 137. 35. French Constitution, article 1. 36. Belgian Constitution, article 24 (3.2). 37. County of Allegheny v. ACLU, 492 U.S. 573, 610 (1989).
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