The Establishment Clause of the First Amendment of the US Constitution tersely says that “Congress shall make no laws respecting an establishment of religion”. Over time, this short phrase has had to be fleshed out and this has resulted in a messy stew of decisions resulting in great confusion.
One major advance was when the Supreme Court said in 1947 in Everson v. Board of Education of Ewing TP that the due process clause of the 14th Amendment broadened the reach of the ban to more than just Congress and included state and local government and indeed any agency that acts on behalf of any of these governments. There is broad consensus on that though justice Clarence Thomas wants to roll that back and set the limit only on Congress again.
There was another feature that was once thought to be generally true and that was that the establishment Clause meant that government should not only be neutral between religions but also between religion and non-religion. In other words, the government should exercise strict neutrality. Justice Hugo Black said this in his same Everson opinion that “Neither [the state or federal government] can pass laws which aid one religion, aid all religions, or prefer one religion over another” and “That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers.” This was reaffirmed in the famous evolution case Epperson v. Arkansas in 1968 where justice Abe Fortas said, “The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”
But that requirement of strict neutrality has become increasingly loosened as the Supreme Court seems to have quietly moved away from that and focused more on the fact that the government should not favor one religion over another but that it was acceptable to favor religion over non-religion. In fact, justice Antonin Scalia has explicitly said that “I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion,” a view that Thomas is also sympathetic too.
The problem with this view is that there is no such thing as ‘religion’, standing all by itself. What there are are religions, in that various individuals and groups subscribe to widely different sets of beliefs and practices that can be called religious. But if one were to draw a Venn diagram of the beliefs and practices of all religions, there is nothing that lies within the intersection of all of them that we can call just religion. There seems to be no single essence that defines what is and what is not a religion. If someone claims that what they believe is a religion, there is no way to refute it.
So when Scalia, or anyone else for that matter, speaks of ‘religion’, he is necessarily referring to a particular religion or a subset of religious beliefs that share some common features. And if you favor ‘religion’ over ‘non-religion’, you are inevitably favoring that subset of religious beliefs over other subsets, which even Scalia would have to concede would be constitutionally problematic.
I think that the logic is fairly clear that not being able to favor one religion over another necessarily entails that you cannot also favor religion over non-religion. That is the only way to be consistent. The only alternative is to allow anyone to call a belief a religion and claim the benefits that accrue.
There is an interesting case out of Oregon last month involving a prisoner who was denied by prison authorities the opportunity to create and Atheist or Humanist study group the way that religious groups can. The American Humanist Society sued on his behalf and the US District Judge ruled in his favor. But what was interesting was the reasoning of the judge who said that “Secular Humanism is a religion for Establishment Clause purposes.” But he also added that since the Establishment Clause requires neutrality between religion and nonreligion, “whether Humanism is a religion or a nonreligion, the Establishment Clause applies.”
I do not think this case will go to the higher courts. But it is only a matter of time before a group of nonbelievers who demand the same rights and privileges granted to believers have their case reach the Supreme Court and they will have to tackle the tricky issue of what constitutes a religion.
I have argued that this cannot be done, that demarcation rules for doing so simply do not exist. But as we have seen in recent years, consistency with respect to the Establishment Clause has not been a feature with the Supreme Court. Instead its members seems to start out with a desired result in mind and then find some reasoning, however tortuous, to justify it. And clearly there is a desire of people like Scalia and Thomas to give preference to traditional US religions.