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Attacking atheists: doing one's duty to God and country in 21st century America

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ATTACKING ATHEISTS: DOING ONE’S DUTY TO GOD AND

COUNTRY IN 21
ST
CENTURY AMERICA

by

Nina Weiler-Harwell

A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICAL SCIENCE)

December 2008

Copyright 2008 Nina Weiler-Harwell
ii
Acknowledgments

I am deeply indebted to both the Graduate School and the Department of Political
Science at the University of Southern California. They have provided me with financial
support that enabled me to complete graduate school. I am always grateful for their
support as I strove to complete this dissertation while working full time and raising a
child with a mild disability. A special thanks goes to Alex Venegas and Randa Issa for
all their help during the final stretch of the project.
Alison Dundes Renteln, my dissertation advisor, has been a wonderful and
compassionate mentor, coaching me and challenging me along the way to expand my
exploration of the subject. Professors Craig Stanford and Janelle Wong also provided me
with invaluable feedback on how to improve the project.
My colleagues including Tom Porter, Casey Young, Beth Woodard, Ernie Powell,
Michael Richard and Valicia Franklin have been as supportive as any co-worker could
ask. I greatly appreciate their understanding and encouragement during the past two
years, when I took off a lot of time to complete the work.
I want to express a special acknowledgement of love and gratitude to Alexandra
Weiler and Jonathan Weiler, both of whom have been personal role models for me over
the years.
Last but not least, I could not have done this without the love and support I
received from my very patient husband, Marty Harwell-Weiler, and the daily inspiration I
receive from him and from our beautiful little boy, Lawrence Harwell-Weiler.

iii
Table of Contents
Acknowledgements i

Abstract iii

Chapter 1: Introduction 1

Chapter One Endnotes 23

Chapter 2: Misconceptions and Prejudices about Atheists 33

Chapter Two Endnotes 56

Chapter 3: The De Facto Religion and Atheist Exclusion 65
From the Organization that Embodies
American Civil Religion

Chapter Three Endnotes 100

Chapter 4: Michael Newdow and the Pledge of Allegiance: 109
Is participation in the Civil Religion truly voluntary?

Chapter Four Endnotes 136

Chapter 5: Policy Prescriptions: American and European 145
Union Jurisprudence on Protections for Atheists
And other religious non-conformists

Chapter Five Endnotes 184

Chapter 6: Conclusion 195

Chapter Six Endnotes 211

Bibliography 214

Table of Cases 238

iv
Abstract

In the post 9/11 era the United States seems to have experienced a revival in
religious sentiment. The religious fervor following 9/11 added to the social ostracism
already experienced by atheists. This was consistent with a long history of exclusion but
was more public in nature.
This dissertation considers discrimination against atheists in the contexts of two
case studies: Boy Scouts of America v. Dale (2000) and Elk Grove Unified School
District versus Newdow (2004). In both cases the U.S. Supreme Court ignored past
precedent by creating new standards for analyzing equality under the law for non-
conformists such as atheists and homosexuals. As a result, the Court created a new
hierarchy of protected and unprotected forms of religious belief, and elevated a
monotheistic religion over the neutrality standard that had been heralded in prior
Supreme Court decisions. In essence, these rulings created a sort of religious
establishment for an American Civil Religion.
In the early 21
st
century, when this nation is experiencing an expanding religious
diversity along with an increasing number of seculars, a study of the legal treatment of
non-conformists like atheists is an important subject. America’s unique legal tradition
protects minority religious adherents from majority imposition of values. Both cases
discussed in this dissertation raise concerns about the weakening of such safeguards for
unpopular minority religionists such as atheists.
1
Chapter 1: Introduction

Context

In March of 2007, Representative Pete Stark, a Democrat from the San Francisco
Bay Area of California, became the first openly atheist member of the U.S. Congress.
Flouting a long-standing political taboo, Stark publicly declared himself to be “a
Unitarian who does not believe in a supreme being”.
1
This was a remarkable declaration
within America’s recent historical context. Although Stark represents the
overwhelmingly liberal East Bay Area, no other representative in Congress, and it is
believed, in any other high office, had previously revealed his or her atheism.
Additionally, within the seven years preceding Stark’s statement, American atheists had
experienced a series of setbacks that had highlighted their marginalized and stigmatized
status in America.
In 2000, the Supreme Court ruled that the Boy Scout’s status as a private
organization, with its right to form its own message and choose its membership,
permitted it to exclude atheists (and homosexuals) from membership even though the
organization receives many public benefits, including a Federal Charter
2
and federal
monies.
3
The tragic events of 9/11 led to spurious claims of a religious revival that
encouraged more than one media commentator to declare another Great Awakening of
America’s religious spirit. At the same time, commentators declared that atheism was
suddenly in its “twilight”.
4
Atheist Michael Newdow’s legal attempt to expunge the
words “Under God” from the Pledge of Allegiance failed because of a questionable
ruling on his standing instead of on the matter at hand, although the justices still declared
in dicta that had they decided the matter, they would declare that the Pledge of Allegiance
2
was constitutional.
5
In 2006, the Oregon Supreme Court ruled that it is not
discriminatory for a public school to allow organizations such as the Boy Scouts, despite
their inequitable policies of excluding gays and atheists that violate state anti-
discrimination laws, to recruit students during school hours as long as they cloak the truth
about their policies regarding atheists and homosexuals.
6
“As long as the organization
sanitizes its message, removing any mention that not all students can join”
7
, the Court
stated, the behavior is not discriminatory and is not prohibited by Oregon’s anti-
discrimination laws. This troubling decision has subsequently been cited as precedent in
a U.S. Department of Justice brief that defends San Diego’s low-cost lease of public park
space to the Boy Scouts of America.
8

Adding insult to injury, widely cited public opinion polls proved that atheists “are
America’s most mistrusted minority”
9
, and that an atheist candidate for President is less
likely to be elected by members of his or her own party than any other group including
homosexuals and Muslims.
10
In early 21
st
century America, Muslims and homosexuals,
like atheists, are widely disliked minorities, but this poll indicates that atheists are even
more unpopular than these two subgroups. Even post- 9/11, Muslims were given higher
ratings by the public than atheists.
11

What is An Atheist?
Atheists have eclectic self-definitions, so I will not attempt to define them for the
reader or for other atheists. The most basic definition comes from The Random House
Dictionary, which states that an atheist is someone who does not believe in the existence
of God or gods.
12
However, others characterize themselves as lacking a supernatural or
mystical worldview.
13
Others consider themselves rationalists who accept an organic
3
explanation for ultimate reality.
14
Some atheists state that they cannot concede the
existence of God because it has not been proven.
15
Some non-believers, such as the
authors of best-selling books that argue against the existence of God and even the
benefits of religion, called “new atheists” by some observers, wholeheartedly reject
religion.
16
However, many atheists do not reject religion. For example about 8 per cent
of reform Jews are atheists; because Reform Judaism focuses on good deeds in this life, it
is welcoming to the atheist.
17
About half of all Unitarian Universalists are humanists,
atheists or agnostics.
18
Contrary to popular belief, discussed in greater detail in Chapter
Two, I wholeheartedly believe that morality is possible without a belief in God.
19
I reject
the notion that morality is impossible without a belief in a deity. I find the arguments that
claim that God is necessary for morality to be fundamentally circular, as they often insist
that since God exists, He must be the cause of atheists’ morality.
20

9/11, Civil Religion and Ceremonial Deism
21

Few public occasions highlighted atheists’ marginalization more than the events
that followed the terrorist attacks on the morning of September 11, 2001. These events
serve as the starting point for this study. They demonstrate one example of atheist
exclusion that I repeat throughout this dissertation: that non-believers are stigmatized
because of their perceived failure to acknowledge the nation’s de facto
22
, state-supported
religious establishment, the Civil religion.
23
This de facto religious establishment
requires both a love of God and country for full acceptance among the population.
The terrorist attacks on the morning of September 11, 2001 threw the nation into
an intense period of mourning, patriotic activity and religious reflection. Almost
immediately, the nation’s Civil religion
24
, with its public displays of devotion to God that
4
add a tone of piety on otherwise secular traditions
25
, was on exhibit. As this Civil
Religion often has, it served as the major uniting factor for Americans of varying
religious beliefs, operating as a form of de facto religion in a nation where a national
church (such as the Anglican Church in England) does not exist.
26

Civil religion has both secular and religious elements to it. Secular elements of
the Civil Religion include the reverence of the Pledge of Allegiance, the Declaration of
Independence and the Constitution, in addition to the myths and lore of American
origins.
27
Religious infusion into the Civil Religion include the Congressional Act that
added the words “Under God” in the Pledge of Allegiance in 1954
28
, as well as the
popularity of patriotic tunes that beseech God’s blessing on this country. For example,
on the night of 9/11, Congress gathered on the steps of the Capitol in Washington, D.C.
to sing “God Bless America”, the ode to both God and country. Although the song was
written as a show tune in 1918
29
, its call for the deity’s blessing made it the nation’s
second National Anthem, displacing the Star Spangled Banner.
30
In fact, “God Bless
America”, with its appeal to “divine benediction”
31
quickly replaced “Take Me Out to the
Ballgame” during the seventh inning stretch of America’s past time, a ritual that endures
in some ballparks in 2008. Another chart-topping tune beseeching God’s blessing and
demonstrating fervent patriotism, “God Bless the U.S.A.”, which was originally popular
in the 1980’s, headed back up the Billboard music charts in late 2001.
32
This song is
now part of the naturalization ceremony for new immigrants.
33
Meanwhile, “One Nation
Under God” was repeated constantly as the national motto, and the American flag
became a sort of fashion statement on bumper stickers, on billboards, on t-shirts and lapel
pins.
34

5
American Civil Religion was ostentatiously displayed by the nation’s leaders.
Large, ecumenical prayer vigils at the National Cathedral and Yankee Stadium after 9/11
were helmed by figures such as President George W. Bush and then-New York City
Mayor Rudy Giuliani. Each service featured representatives from Christian, Jewish,
Muslim, Hindu and other non-Christian religions.
35
Religious leaders joined President
W. Bush at a prayer service led by evangelical Minister Billy Graham at the Washington
National Cathedral, the self-proclaimed “National House of Prayer”.
36
In his speeches
that followed the tragedy, President Bush frequently employed a Biblical rhetoric of
Good versus Evil, declaring that those who stood with the U.S. were blessed by God,
while those who did not “are on the wrong side in that divine confrontation.”
37
Such
religious proclamations are not unusual in times of war, such as in the months following
9/11. As scholars Martin Marty and Roberta L. Coles have noted, the Persian Gulf War
effort, although opposed by many clergy prior to the invasion of Iraq in January 1991,
foreshadowed the pattern seen in 2001. Coles notes that President Clinton also used
religious rhetoric to garner public support for the war efforts in Kosovo.
38

These national events are often replete with religious references, a phenomenon
that has been called Ceremonial deism.
39
Frequently, American public ceremonies invoke
a non-sectarian God to confer a blessing upon a government body, a leader, or upon the
nation as a whole. Such events include the paid chaplains in both houses of Congress, of
which only two have non-Protestants
40
or politicians ending major speeches with the
phrase “God Bless America.” Remarkably, these practices have been held to be fully
constitutional by the Supreme Court because of their non-sectarian nature. In addition,
courts have claimed that they have historical significance, asserting that they
6
acknowledge a tradition of reverence to God in public occasions that dates back as far as
the Continental Congress in the 1770s.
41

While the American Civil Religion and ceremonial deism were prominently on
display, the news media reported that Americans had responded by embracing religion
and religious practices more fervently than they had in a generation. More Americans
claimed to have turned to personal religious devotion in the weeks after 9/11.
42
Many
mainstream publications repeatedly claimed that Americans were more religious than
ever before. Newspapers told of packed churches and synagogues immediately following
9/11.
43
Publications in the U.S. and even abroad informed readers that the U.S. was
experiencing a resurgence of religious fervor, with The Independent of London notifying
its readers that the U.S. was experiencing “a Second Great Awakening”.
44
In the months
and years following 9/11, the media continued to report that Americans had re-discovered
their relationship with God, despite survey evidence to the contrary.
45
In 2005, four
years after 9/11 and when it was clear that Americans had not embraced religion as much
as previously believed, a French newspaper declared that “godlessness is in trouble” and
that “disbelief is passé”.
46
Meanwhile, Los Angeles Times reporter Gina Piccalo
declared that, “it’s been years since the Almighty was so hot.”
47

According to the mainstream news media, not only was piety experiencing its
greatest resurgence in nearly two centuries, but concurrently, atheism was becoming a
relic of the past. The Los Angeles Times announced that atheism was “out in the cold”
and that it was “a time of doubt for atheists”
48
, while England’s The Guardian derided
atheism as “old and tired”.
49
“God makes a comeback” declared the Weekend Australian
upon the publication of McGrath’s The Twilight of Atheism.
50
As late as 2007,
7
Christianity Today continued to incorrectly inform its readers that atheism was on the
losing side of a revival of religious fervor. “Atheism is in trouble”, intoned the magazine,
failing to realize that the erroneous facts he cited in his article - that 8 to 27 per cent of
the U.S. population were atheists - would have made atheism one of the largest minority
religious groups in this nation.
51

Relevance to Atheists
However mistaken these assertions about a Second Great Awakening might have
been
52
, to many atheists the message was loud and clear. If one was not part of the
mainstream of America that had apparently re-embraced a relationship to the Almighty
after 9/11, one was not a true patriot who could unite a love of country with subservience
to God, making one’s ideas passé and dated. Two months after 9/11, The Boston Globe
declared that “God is everywhere these days.” In the spirit of the time, the paper also
reported that atheists were “feeling left out of the grieving process in the wake of the
terrorist attacks.” Boston area atheists interviewed for The Boston Globe noted that all
the events celebrating ethnic and religious diversity in the area had failed to include
atheists.
53
ABC News interviewed atheists who asserted that the focus on religion after
9/11, and especially the highly religious tone of the public services, was troubling
because the “overtly religious tone of remembrance services failed to acknowledge that
some Americans were horrified by the attacks, but did not believe in prayer or looking to
God”.
54
A woman from a Chicago suburb related her feelings of exclusion and
marginalization one month after 9/11, “I’m feeling very excluded from this. There’s this
big unity, but it’s all under God…I feel just as strongly about this as everybody else.”
55

Following 9/11, atheists told one scholar that they felt like they were being “lumped in
8
there with terrorists” and that it was clearer than ever that, “people do equate religion
with morality. The public image is strongly in favor of the whole idea of ‘God and
country’”.
56

The Chicago woman in the prior paragraph sums up a central point of my thesis
rather concisely. Atheists are not viewed as true patriots or real Americans because they
are viewed as being unable to pay homage to the de facto American religion. No matter
how much an atheist might love her nation, her inability to state a belief in God was
construed as undermining her commitment to the United States. This public shunning of
atheists called into question exactly how voluntary this Civil religion truly is. Based on
media accounts and the conclusions of a University of Minnesota study in particular, it
became clear that individuals must conform to this de facto religion, or experience public
revulsion.
57

Survey Findings about Attitudes towards Atheists
In 2006, the University of Minnesota (UM) survey regarding public attitudes
towards atheists found that Americans really do view atheists as rather different because
of their perceived rejection of the de facto religion.
58
This study showed that, as some
had long suspected, atheists are indeed America’s most unpopular minority.
59
According
to the researchers, Americans expressed the sense that atheists were the least likely
among all groups, including Muslims and homosexuals, to share core values with other
Americans. Consequently, because atheists differed from religious groups in their lack of
God-belief, Atheists were reviled. For instance, only half of all Americans even
approved of intermarriage between an atheist and their children.
60
Accordingly, it is not
surprising that other scholars who have studied atheists have found that many choose to
9
conceal their atheism from their community for fear of retribution or of losing their
standing in the community.
61

Other surveys also demonstrated that among all hypothetical candidates an atheist
is less likely to be elected as President than a Muslim or a homosexual. In a 2007 Zogby
Poll, a bare majority of Americans said they would vote for an atheist for President, while
58% claimed they would vote for a homosexual (as long as he or she is not married) and
57% stated they would vote for a Muslim.
62
The percentage of respondents indicating
they would vote for an atheist in the office of the President was actually less than for any
of the other groups about which respondents were questioned. Of course, individuals are
free to vote for whomever they wish. However, this attitude towards atheists has
contributed to the fact that prior to 2007 there was not a single admitted atheist in
Congress, in any of the Governor’s mansions or in the state legislatures.
The results of the UM survey came as no surprise to those who had been tracking
poll questions concerning atheists over the years, including John Green of the Pew Forum
on Religion and Public Life. Green, who is a Senior Fellow with the Pew Forum on
Religion and Public Life, understated when he observed that, “Atheists are not very well
thought of in America,". He continued: “It's still acceptable to criticize atheists in a way
that's not polite. People may harbor negative views about Jews, Catholics, Muslims and
evangelicals, but they know they're not supposed to voice those views, so they don't. But
it's still OK to say anything bad you want about atheists."
63

These negative attitudes are often based on misconceptions about atheists. The
scholars from the University of Minnesota survey surmise that few respondents even
know an atheist, but only formed their opinions of them based on pre-conceived
10
notions.
64
Nevertheless, participants felt they knew enough about them to tell pollsters
that they would not want their child marrying an atheist, and to attribute an impossible
range of anti-social behaviors to them, including both criminality and self-absorbed
elitism.
65

Misconceptions about Atheists
The public ostracism of atheists may have been exacerbated by the religious
fervor following 9/11, but it follows upon a long history. Anti-atheistic misconceptions
have persisted for many centuries, in England and then in the United States. These well-
ingrained beliefs have contributed to an enduring perception that atheists deserve to be
rejected in American society because of their character.
Atheism has long been perceived as synonymous with untrustworthiness and
“moral turpitude”.
66
Under English Common Law, it was believed that the only way to
guarantee witness credibility during a trial was using the sworn oath, the “guarantor of
truth”.
67
It was assumed that if the believing individual took the oath, and lied, he knew
he would meet the fate of God’s eternal punishment.
68
Atheists, because of their lack of
belief, were prohibited from testifying because they did not believe in a future system of
rewards and punishments for their transgressions. This lack of belief made them
untrustworthy, an argument advanced by philosopher John Locke in his essay A Letter
Concerning Toleration.
69

When philosopher John Locke argued in this work that Anglican England should
extend toleration to practitioners of other Christian religions and to Jews, he asserted that
this should not be extended to atheists because their lack of a belief in God precluded
them from this toleration.
70
In his view, those without the fear of a transcendent God
11
who will punish wickedness in the afterlife cannot be trusted. An incredulity that men
could be of good character if they lacked a fear of divine punishment contributed to the
rejection of atheists. Moreover, it remained conventional wisdom into the seventeenth
and eighteenth century English-speaking world, and was still prevalent in early 2oth
century America.
71

The perception that men were innately corrupt contributed to the belief that only a
belief in a Supreme Being could act as a check on human avarice and selfishness. The
distrust of atheists stemmed from this presumption. As a result, the notion that atheism
was associated with immorality was codified into English Common Law, which
significantly influenced the law in the United States.
72
A number of discriminatory
practices regarding atheists, such as prohibitions against participation on a jury pool and
testifying in a court of law were adopted into American law from English law. Several
18th and 19th century state constitutions barred atheists from holding office. The
wording of several state constitutions either excluded them outright, by granting rights
only to those whose worshipped god, or limited public office only to theists. Several state
constitutions also barred atheists from sitting on a jury pool. Furthermore, several states
would not honor an atheist’s dying wishes.
73
Some of these laws remained on the books
until well into the 20th century.
74
Amazingly, some state constitutions in 2008 still
contain provisions that bar atheists from holding office, even though a 1961 Supreme
Court case outlawed this practice.
75
Some state officials still attempt to use these
restrictions to keep atheists from holding even minor public office, such as notary public,
although they have been overruled by the courts.
76
As of May 2008, the Republican
12
Party of Texas still erroneously informs visitors to its website that elected and appointed
officials in Texas must take an oath of office swearing a belief in God.
77

Purpose of the Study
While atheists can no longer be barred from holding public office, I contend that
atheists are still not blessed with the level of tolerance that is available to believers. The
freedom of conscience accorded to the majority that can both worship God and avow
their love of country is not available to atheists. This is troubling in a nation that is
supposed to fully recognize individual freedom of conscience. Thirty years ago, one
observer stated that the promises of religious freedom are not real if one’s ideas conflict
with the majority and the individual is compelled to acquiesce to the majority:
Unfortunately, the free exercise of religion proclaimed by
the Constitution has become an empty promise to many
people in the United States. Its absence has been accepted
by many to be their price for marching to the beat of a
different drummer. A strange paradox has arisen in our
country. It says that you may have your freedoms as long
as you are in the majority, or so long as you are in the
“mainstream.” But if your beliefs are different, you may
believe them but you may not practice them unless they do
not conflict with the majority … or unless they are
inconvenient. How different, may I ask, is that from the
philosophy of governments that give only lip service to
religious freedom?
78

While this individual was actually speaking of religious discrimination in the workplace,
his words resonate because they apply to the situation faced by atheists in the 21
st

century. The decisions in Newdow
79
and Dale
80
, which I discuss in Chapters Three and
Four, make Adam’s assertions about religious non-conformists such as atheists
troublingly apparent: if the ideas of the atheist conflict with those of deeply beloved, but
federally funded organizations (The Boy Scouts), or if their conscience clashes with a
13
practice (The Pledge of Allegiance) to which many Americans feel an emotional tie, they
cannot expect redress from the courts, when they could in previous courts, which will be
discussed in Chapters Three, Four and Five.
While atheists and other minority religionists have benefited from laws and
rulings in the past that protected them from the will of the majority, Dale and Newdow
may be signaling a change in the law. In exploring the issue of full freedom of
conscience for atheists, this study attempts to fill in some of the gaps in the social science
scholarship on atheists, atheists’ acceptance as full American citizens, and public opinion
polling data on this class of citizens, through the prism of two case studies the Dale and
Newdow decisions.
Literature Review
Atheists as a small but significant tradition of religious thought is only
occasionally noticed in many social science works. The dearth of scholarly works about
atheists is noted in Hunsberger and Altemeyer’s Atheists: A Groundbreaking Study of
America’s Non-Believers, a 2006 study that surveys the attitudes of active atheists in the
U.S. and Canada. This work is actually among a few very that attempt to directly survey
the attitudes and opinions of actual activist atheists and how they came to be atheists.
81

There is also Bridget Fitzgerald’s study of 36 atheists which seeks to understand the
strategies they employ to mitigate their stigmatized status in American society.
82
Finally,
Martha Nussbaum has made an important contribution in her analysis of the challenges
that religious minorities, including atheists, face in early 21
st
century America. She
acknowledges the legal hurdles faced by atheists in a highly polarized nation in a candid
yet compassionate manner.
83
However, aside from these works, the voices of atheists
14
still remain largely silent in works from academia, a mostly unexamined “residual
category”
84
in the abundant scholarship on religion and politics, religion and attitudes.
The legal community has paid far more attention to the plight of atheists,
especially in light of the Newdow decision. While the social sciences have an abundant
literature detailing the many ways that our culture has used the political and social system
to discriminate against unpopular minority groups, through the courts or through social
practice
85
, the legal community has focused on this topic as it impacts atheists more
frequently and with greater passion.
86
Although the focus can be limited to specific
cases, such as the Boy Scouts case or state prohibitions against atheist testimony that
existed into the 20th century
87
but often not.
Nevertheless, with the exception of legal scholars, most scholarship continues to
overlook the marginal status of atheists in American culture, and how disparaging
attitudes towards atheists shape the kinds of policy decisions that have allowed the
Supreme Court to uphold discriminatory practices by the Boy Scouts and to rebut
Michael Newdow’s contention that the religiously-inspired inclusion of the words “Under
God” in the Pledge of Allegiance does not amount to a state sponsorship of religion.
88

As a result, in 2007, six years after 9/11, Diana L. Eck encouraged social scientists to
remember that, “The encounter of people from different religious traditions in hometown
America has reshaped the context of religious life, calling for attention and serious
study.”
89
Unfortunately, she then ignored atheists in her suggested study of
Congressional Representative Pete Starks’ town of Fremont, CA.
90
The 2006 University
of Minnesota study was not the first in a peer-reviewed journal that devoted an entire
entry to the topic of Americans’ attitudes towards atheists, but it is one of a few.
15
In the aftermath of 9/11 there was a continued expansion of an already-rich
literature on American religiosity and religious diversity. Some of the post-9/11 works
were optimistic in tone, viewing the large interdenominational services following 9/11 as
a sign of hope that America’s smaller religions would be openly invited to and included
in larger celebrations of the nation’s religious heritage. Some scholars feted America’s
religious diversity by focusing on the purported increase in piety of Americans, even as
American religious practices have become more eclectic and diverse. For example,
Harvard’s Diana Eck celebrated the increasing numbers of Muslims and Buddhists in the
United States.
91
American religion scholar Robert Wuthnow wrote a new treatise on
American religious diversity.
92
Other scholars thoroughly described the eclectic religious
practices of “Gen Xers”.
93
Even legal scholars like Noah Feldman wrote excitedly about
pluralism: “pluralistic religion even holds out the possibility of new religions to
participate fully in the American public sphere” and viewed the growth of minority
religions as a possible antidote to our battles over church and state issues.
94
Post-9/11
there was great academic excitement over the apparent re-discovery that the United States
was not quite as secular as some had believed.
95
As noted, however, atheists were largely
ignored in the literature.
The lack of scholarly attention to atheism has translated into a shortage of works
in the social science literature about the place of atheists as a minority religious viewpoint
in a heavily religious society, as well as their acceptance in American society. Doctoral
student Bridget A. Fitzgerald has noted that atheists possess a “minority viewpoint which
is considered deviant as they reject the dominant religious culture and the normative
belief in the existence of God.”
96
She has reported that the atheists she interviewed for
16
her study “often feel stigmatized [and] often face negative consequences due to their
atheism…”
97
Perhaps this scholarly indifference among social scientists derives from
this sense of atheist difference that is shared with the wider American community, in
addition to a dismissal of the group because atheists are allegedly small in numbers.
Basically, they are not well-liked. For example, in 1971 scholar Colin Campbell
described the attitudes of some academics who perceived atheists as loners and
misanthropes who are “friendless and tortured soul[s], they are not worthy of study
because atheism and irreligion are seen as an “individual phenomenon”, and not one
impacting millions of individuals.
98
As a result of this apathy among scholars, political
scientist Samuel L. Huntington elicits little comment when he insists that atheists should
remain outsiders and strangers because they are and deserve to be.
99

The Importance of Studying Atheists
Ph.D. candidate Bridget Fitzgerald is correct that atheists should not continue to
be treated as an “all other” category in scholarship. There are actually many different
types of non-believers. Current statistics show that the fastest-growing religious segment
of the U.S. population is the so-called seculars, about 16 per cent of the population.
100

That category includes those who do not attend church or synagogue and may engage in
private religious practices, but it also includes atheists and agnostics.
101

Furthermore, atheists are not small in numbers relative to other minority religious
groups. They are a not inconsequential minority that may comprise as much as ten per
cent of the population. A 2007 Gallup poll found that 90% of Americans claimed a belief
in God, and that 10% did not belief in God.
102
A 2006 Baylor University study also
numbered atheists at 5.2% of the population, with all atheists and agnostics comprising
17
7% of the population.
103
There may be more atheists than there are adherents of
America’s smaller religions, such as Buddhists. Comparatively, the number of atheists in
the UM study outnumbered all adherents who fell into Baylor University’s “other”
religion category.
104
In 2008, Pew found that four per cent of its respondents were
atheist or agnostic with another 6.3 per cent referred to themselves “secular
unaffiliated”.
105

Surveying these findings as a whole, we find that atheists and agnostics comprise
somewhere between three and ten percent of the population. Even if we accept the
smaller figure of “only”
106
three percent is accepted, it is possible that atheists may
presently outnumber or are nearly equal in number to all persons claiming adherence to
smaller but more frequently researched religions, including Jews, Muslims and
Mormons.
107
Atheists are a small, but not inconsequential minority.
It is also possible that the number of atheists has been under-counted. Scholars of
psychology and sociology frequently mention the social-desirability response in surveys,
a phenomenon where respondents tell surveyors the answer they believe it is socially
desirable to hear, and not their genuine feelings or behaviors regarding the question being
asked. Sociologists have found that social desirability and embarrassment about certain
behaviors limit the comfort of respondents answering truthfully on some issues. There is
research that suggests that respondents are less likely to report the socially-preferred
behavior (such as church attendance or the belief in God) in online surveys than in
telephone surveys, although this is also a matter of debate among scholars.
108
Using a
web-based survey method, a Harris Interactive poll conducted in 2003 found fewer
Americans claiming to possess an absolute belief in God (66%) than the 90% of believers
18
generally cited by polls, demonstrating that there is greater uncertainty about God’s
existence among Americans than other surveys typically uncover. Meanwhile, more than
three times the percentage of individuals claimed to be atheists in the Harris Study than in
the 2008 Pew Study: nine per cent. Another interesting result was that only about a
quarter of Americans attend church every week (26%).
109
Compare this to the typical
survey that finds 40% of Americans claiming weekly church attendance, a figure that has
remained stable over several decades.
110
Some scholars had already theorized that the
number of atheists might be undercounted in surveys because many would refuse to tell
pollsters they were atheists because of the negative connotations of the term.
111

Additionally, the numbers of unbelievers in society may grow over the next few
generations. In 2007, the Barna Group found that an increasing number of young adults
were declaring themselves as atheist, agnostic, secular or all three. Within the 18-22 age
bracket, nearly in one five fell into this category. Barna also surmised that the size of this
secular cohort may not be a result of their youth alone. Previous studies had found that
successive generations of Americans had been more secular than the last, and that this
pattern was likely to continue.
112

Nevertheless, beyond their sheer numbers, atheists should elicit interest from
scholars because atheism entails the adoption of a “purposeful, cognitive type of
deviance”.
113
The deliberate choice to disavow a belief in God presents the interested
observer with questions about society’s willingness to accept such willful non-
conformists as full citizens. In a nation that purports to value religious freedom as a key
principle, toleration of individuals with such non-normative beliefs would be a testament
19
to the true extent of our promised freedoms, especially in a nation where the normative
identity is that of a God-fearing believer.
Methodology
This study uses a range of primary and secondary sources in sociology, the law,
political science and even psychology to delve into various factors surrounding atheists’
marginalization in American society. The results of this stigmatization can be seen in at
two Supreme Court decisions that serve as case studies. The outcomes of these two
decisions have been setbacks to the freedom of conscience available to atheists. The
Dale case permitted the Boy Scouts, despite its questionable private status, to exclude
atheists on the basis of their religious beliefs.
114
The Newdow case allows the
continuation of a practice that allows the state-preferred religious belief of Monotheism
to remain in the classroom through The Pledge of Allegiance.
115

Chapter Outline
In Chapter Two, I examine widespread misconceptions about atheists. The
chapter will first delve into the history behind disparaging beliefs about atheists utilizing
historical and legal resources. The negative impressions of atheists held by many
Americans actually have a long history behind them that dates back to medieval times.
These long-standing erroneous beliefs have contributed to the continuing marginalization
of atheists. In also argue that America’s willingness to support Monotheism as part of its
de facto religious creed also ostracizes atheists/non-believers and other religious
minorities through the national reverence of the Civil religion. A combination of
American Civil religion, as well as ancient beliefs about the deceitful nature of atheists
20
adds significantly to their poor showing on American public opinion polls, and to their
consistent ranking at the bottom of surveys asking Americans’ presidential preferences.
In Chapter Three, I will analyze the first of two cases that demonstrate the results
of atheists’ perceived rejection of American Civil religion. In Boy Scouts of America v.
Dale (2000)
116
, the Supreme Court approved the Boy Scouts of America’s (BSA) practice
of excluding homosexuals, a case that had relevance for atheists because it allowed the
BSA to exclude any individual who belongs to a group that the BSA declares is not
“morally straight”.
117
The chapter will discuss the nature of the BSA as told through its
own documents, as well as the outcome of several court cases involving the BSA
utilizing the cases themselves as well as legal commentary. As I will observe, these
cases were troubling for a variety of factors, including the Court’s willful refusal to
examine its own earlier rulings supporting state anti-discrimination statutes, such as the
New Jersey statute that this Court deemed did not apply to the Boy Scouts.
In Chapter Four, I will examine the second of two case studies, Elk Grove Unified
School District v. Newdow (2004).
118
This chapter will discuss Michael Newdow’s case,
covering its history, its ramifications for future Pledge litigation, its impact on the rights
of unpopular minorities to oppose popular will and so-called tradition, and its possible
effects on future standing matters for non-custodial parents like Mr. Newdow. The
chapter begins with a brief history of the Pledge as background. Following that, it will
give a history of Mr. Newdow’s lawsuit starting with its commencement in the Eastern
District Court of California in 2000. The section will then present an overview of all
three iterations of Newdow’s case in the Ninth Circuit court. Next, the section will touch
upon the Supreme Court majority’s reasons for denying Newdow standing, followed by
21
their reasoning as to why the Pledge would be constitutional had they opted to rule on the
question. The chapter will conclude with an analysis of the commentary by the Justices
on the constitutionality of the Pledge, in light of Supreme Court precedent regarding
Establishment Clause violations, as well as the results of their decision regarding
Newdow’s standing.
Chapter Five will provide an overview of several forums of redress that might be
available to atheists, both in national and international law. It will provide an evolution
of the court’s doctrine regarding the freedom of conscience of atheists and religious
minorities prior to Dale and Newdow to demonstrate how the Court’s jurisprudence had
evolved over the years. Looking at international law, I will discuss how U.S. policy has
been expressed both in our support of international human rights treaties, our stance
regarding the religious freedoms available to minorities in other nations, as well as the
Supreme Court’s opinions regarding the applicability of European judicial precedents to
American practice. Using these tools, I will argue that atheists should be considered full
equals under the law with their religious co-citizens and that therefore, the Court should
vindicate constitutional rights for Atheists. The chapter will conclude with some policy
strategies for activists to attempt in future challenges to current law and practices
regarding the Boy Scouts and the Pledge of Allegiance.
In the conclusion, I suggest some additional political strategies for atheists to
consider in their attempts to garner greater public acceptance. These include broader
alliances, media campaigns and more ecumenical litigation that improve the image of
atheists among Americans, allowing them to view atheists as normal, trustworthy
individuals who face the same day to day challenges as they do.
22
The Devil They Don’t Know
The University of Minnesota study demonstrated that even after 9/11 and the
terrorist attack by a group of Islamic radicals, atheists remain highly unpopular, a sort of
American bogeyman. Americans may not know many atheists, but they believe they can
get a sense of them from the images of Madalyn Murray O’Hair and Michael Newdow.
The appearance of activist atheist Michael Newdow on the canvas in 2002, with his
lawsuit against the Elk Grove Unified School District regarding the Pledge of Allegiance,
and his legal challenges against any intermingling of church and state, only intensified
the fear and enmity that so many Americans already felt for non-believers. These
attitudes were due in large part to the widespread perception that religion was
synonymous with decency, and that those who lack religion must by definition be
amoral.
119
Moreover, the American Civil Religion that unites love of God and Country
merely amplifies the perceived divide between atheists and the rest of the nation.

23

Chapter One Endnotes
1
Jackie Koszczuk and Martha Angle, Eds., CQ’s Politics in America 2008: The 110
th
Congress.
Washington, DC: Congressional Quarterly, Inc, 2007. 1206.

2
A Federal Charter is an honorific title that Congress grants to an existing organization under Title 36 of
the U.S. Code. Ronald C. Moe. Congressionally Chartered Non-profit Organizations (‘Title 36
Corporations’): What They Are and How Congress Treats Them. Washington, DC: Congressional
Research Service, 2004.

3
Boy Scouts of America v. Dale 542 U.S. 1 (2000).

4
Alister McGrath. The Twilight of Atheism: The Rise and Fall of Disbelief in the Modern World. New
York: Doubleday, 2002.

5
Elk Grove Unified School District et al v. Michael Newdow et al. 542 U.S. 1.

6
In early 21
st
century America, atheists and homosexuals are unpopular minority sub-populations that have
faced discrimination by the Boy Scouts of America.

7
Powell v. Bunn 59 P3d 559 (Or.App. 2002).

8
“Brief for the United States as Amicus Curiae Supporting Defendants-Appellees/Cross-Appellants and
Urging Reversal” in the United States Court of Appeal for the Ninth Circuit, Barnes-Wallace v. Boy Scouts
of America. 17. This case will be discussed in Chapter Three.

9
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”. American Sociological Review 71 (2006): 211-234.

10
Jeffrey M. Jones. “Some Americans Reluctant to Vote for Mormon, 72-Year-Old Presidential
Candidates”. Gallup. 27 February 2007. 9 July 2008 http://www.gallup.com/poll/26611/Some-
Americans-Reluctant-Vote_Mormon-72YearOld-Presidential-Candidates.aspx.

11
“Religion and Politics: Contention and Consensus.” The Pew Research Center for the People and the
Press. 24 July 2003. 9 July 2008 http://pewforum.org/publications/surveys/religion-politics.pdf.

12
The Random House Dictionary. New York: Random House, 1978).

13
See for example, www.the-brights.net. 9 July 2008 http://www.the-brights.net/.

14
Many thanks to Professor Craig Stanford for this suggestion.

15
Gordon Stein, Ph.D, Ed. The Encyclopedia of Unbelief. Volume. 1. Buffalo: Prometheus Books, 1985.
28.

16
Ronald Aronson. “The New Atheists”. The Nation. 284 (2007): 11-14. E.J. Dionne also uses this term.
E.J. Dionne, Jr. Souled Out: Reclaiming Faith and Politics After the Religious Right. Princeton: Princeton
University Press, 2008. Dionne describes 21
st
century atheist authors such as Christopher Hitchens, Samuel
Harris and Richard Dawkins as “new atheists”.
17
David Benatar. “What’s God Got To Do With It? Atheism and Religious Practice”. Ratio 19 (2006):
383-400. Darcie Lunsford. “Walking Without God” Boca/Delray Jewish Times. 30 May 1997: 16.

24

18
James Casebolt and Tiffany Niekkro. “Some UUs are More U than U: Theological Self-Descriptors
Chosen by Unitarian-Universalists”. Review of Religious Research 46 (2005): 235-242.

19
Michael Martin, Atheism, Morality and Meaning. Buffalo, NY: Prometheus Press, 2002.

20
Paul Copan. “Morality and Meaning Without God: Another Failed Attempt”. Philosophia Christi 6
(2004): 295-304.

21
This term refers to the copious displays of religious devotion in American public life. It encompasses
the national motto ("In God We Trust"), religious references in traditional patriotic songs such as God
Bless America, and the words with which the Marshal of the Supreme Court opens each of its sessions
("God save the United States and this honorable Court").” Other typical practices include the opening of
Congress every day by prayer, as well as the Presidential Inaugural address where the President lays his
right hand on the Bible while swearing the oath of office. The term is attributed to the former Dean of Yale
Law School, Eugene V. Rostow. See Grace Y. Kao and Jerome E. Copulsky. “The Pledge of Allegiance
and the Meanings and Limits of Civil Religion”. Journal of the American Academy of Religion 27 (2007):
130.

22
Black’s Law Dictionary defines de facto as, “Actual; existing in fact; having effect even though not
formally or legally recognized”. Bryan A. Garner, Editor in Chief. Black’s Law Dictionary, Eighth
Edition. St. Paul, MN: West, 2004. 448.

23
Penny Edgell et al also came to the conclusion that a central cause of atheists’ unpopularity was their
apparent rejection of the Civil Religion. Penny, Edgell et al. “Atheists as Other: Moral Boundaries and
Cultural Membership in American Society”: 211-234.

24
Civil Religion is a form of non-sectarian nationalist piety that links secular elements of patriotism with
god-belief. It is a form of worship that exists alongside sectarian religious belief, what one scholar aptly
calls “a discrete religion of the nation”. Jon Pahl “Nationalist Religious Broadcasting: The Case of the
2004 US Presidential Nominating Conventions”. Political Theology 8 (2007): 35. The term was coined by
sociologist Robert N. Bellah. “Civil Religion in America” Daedalus 96 (1967): 1-21.

25
Robert N. Bellah notes that some secular aspects of our Civil Religion include the reverence of
documents such as the Constitution and the Civil War Amendments to the Constitution. Robert N. Bellah.
Broken Covenant: American Civil Religion in Time of Trial. New York: The Seabury Press, 1975. 62.

26
Scholar Martin Marty attempts to provide an explanation as to why Civil Religion exists. He observes
that nationalism and religion are often heavily co-dependent. For example, even an atheist nation such as
the former Soviet Union created symbols, ceremonies, and myths that became a sort of religion for the
people. Just as religions need their myths and martyrs, nations also need to selectively embellish history to
create a common sense of unity, common values, ideals and a shared destiny among its people. He
contends that citizens need this symbolism to know who they are and whom they can trust. Individuals
actually need to have a sense of greater status than other nations and a higher purpose than others. Martin
Marty. “Religion and Nationality”. The Religion Factor: An Introduction to How Religion Matters.
William Scott Green and Jacob Neusner, eds. Louisville, KY: Westminster John Knox Press:
1989. 15-16.

27
Robert N. Bellah. Broken Covenant: American Civil Religion in Time of Trial. 4, 62.
28
Codified in 4 U.S. Code §4 in 1954, the Pledge reads, “I pledge allegiance to the flag of the United States
of America, and to the republic for which it stands, one nation, Under God, indivisible, with liberty and
justice for all.” Also, 100 Cong. Rec2 1700/Feb. 12, 1954.

25

29
Dorlea Rikard, “Patriotism, Propaganda, Parody and Protest: The Music of Three American Wars”.
War, Literature and the Arts 16 (2004): 132-33.

30
Paul Martin Lester, “Visual Symbolism and Stereotypes in the Wake of 9-11”. Images that Injure.
Second Edition. Paul Martin Lester and Susan Ross, Eds. Westport, CT: Greenwood Publishing Group,
2002. 43-50. Katherine Meizel. “A Singing Citizenry: Popular Music and Civil Religion in America”.
Journal for the Scientific Study of Religion 45 (2006): 497-98.

31
Katherine Meizel, “A Singing Citizenry: Popular Music and Civil Religion in America”: 498.

32
Katherine Meizel, “A Singing Citizenry: Popular Music and Civil Religion in America”: 498.

33
Katherine Meizel, “A Singing Citizenry: Popular Music and Civil Religion in America”: 498.

34
Lee Canipe, “Under God and Anti-Communist: How the Pledge of Allegiance Got Religion in Cold War
America” Journal of Church and State 45 (2003): 305.

35
Jeffrey L. Sheler. “The Power of Prayer – For the meek and the mighty, saint and scoundrel, an
undeniable urge to reach out to a greater being”. U.S. News and World Report 137.
20 December 2004: 53.

36
Lauren Monson. “Washington National Cathedral Celebrates 100
th
Birthday”. USINFO. 6 September
2007.

37
Jim Wallis. “Dangerous Religion: George W. Bush’s Theology of Empire”. Sojourners 32.5 (2003): 20-
26.

38
Martin Marty. “Religion and Nationality”. 15-17. Roberta L. Coles. “Manifest Destiny Adopted for the
1990s War Discourse: Mission and Destiny Intertwined”. Sociology of Religion 63 (2002): 403-26.

39
Justice Sandra Day O’Connor summed up this term well in her concurrence in Elk Grove. 20 July 2008
http://www.america.gov/st/washfile-english/2007/September/20070906130622GLnesnoM0.6720545.htmle
Unified School District v Newdow, so it is worth paraphrasing here "…ceremonial deism" encompasses the
national motto ("In God We Trust"), religious references in traditional patriotic songs such as the Star-
Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions ("God
save the United States and this honorable Court").” Other typical practices include the paid chaplains in
Congress, as well as the Presidential Inaugural address. The term is attributed to the former Dean of Yale
Law School, Eugene V. Rostow. Grace Y. Kao and Jerome E. Copulsky. “The Pledge of Allegiance and
the Meanings and Limits of Civil Religion” Journal of the American Academy of Religion 75 (2007): 130.

40
The chaplains are chosen as individuals and not as representatives of specific denominations. As of
2003, all but two have been Protestant. Chaplains from minority religions such as Islam and Judaism are
invited as guest chaplains. Mildred Amer. House and Senate Chaplains. Washington, D.C: Congressional
Research Service, 2005: 1-2.

41
Marsh v. Chambers 463 U. S. 783 (1983). This decision upheld the Nebraska legislature’s chaplain
practice using the practices of the Continental Congress as part of its reasoning.
42
“Post-9/11 Attitudes: Religion More Prominent, Muslim Americans More Accepted”. Pew Forum on
Religion and Public Life. 6 December 2001. 31 May 2008 http://pewforum.org/surveys/post911poll.pdf.

43
Jeffrey L. Sheler. “The Power of Prayer – For the meek and the mighty, saint and scoundrel, an
undeniable urge to reach out to a greater being”: 53. Gustav Niebuhr. “AFTER THE ATTACKS: THE

26

CHURCHES; At Houses of Worship, Feelings Are Shared and Comfort Is Sought in Greater Numbers”.
New York Times. 17 September 2001. 5 October 2005
http://query.nytimes.com/gst/fullpage.html?res=9F04EFDA173BF934A2575AC0A9679C8B63.

44
Johann Hari. “Why is religion on the rise again? I fear the answer might be depressing. It might just be
that atheism is cold and tough and hard to live with”. The Independent (London). 28 December 2004: 31.

45
“Five Years Later: 9/11 Attacks Show No Lasting Influence on Americans’ Faith”. The Barna Group.
28 August 2006. 10 May 2008
http://www.barna.org/FlexPage.aspx?Page=BarnaUpdateNarrowPreview&BarnaUpdateID=244. This
research found that, contrary to conventional wisdom, there had been a brief shift in favor of religious
skepticism following 9/11, and then that views returned to previous levels by early 2002. “Two Years
After 9/11, Growing Number of Americans Link Islam to Violence: Church attendance back to pre-
terrorist attack levels”. Pew Forum on Religion and Public Life. 10 September 2003. 17 January 2008
http://pewforum.org/press/index.php?ReleaseID=21. A Pew Forum poll from December of 2001 had
already found that worship attendance levels had not changed appreciably after 9/11. “Post-9/11 Attitudes:
Religion More Prominent, Muslim Americans More Accepted”. The Pew Forum on Religion and Public
Life. 6 December 2001. 31 May 2008 http://pewforum.org/surveys/post911poll.pdf.

46
Uwe Siemon-Netto. “Analysis: Atheism worldwide in decline”. UPI. 1 March 2005. LexisNexis
Academic. California State University at Sacramento Libraries. 31 October 2006. < http://web.lexis-
nexis.com> .

47
Gina Piccalo, “U.S. atheism: Out in the cold”. Los Angeles Times 5 August 2006: E1.

48
Gina Piccalo, “U.S. atheism: Out in the cold”: E1.

49
Dylan Evans. “The 21st century atheist: Not believing in God is no excuse for being virulently anti-
religious or naively pro-science”, The Guardian (London) 2 May 2005: 15.

50
George Pell. “God makes a comeback”. The Weekend Australian. 29 January 2005: 27. The book
discussed is Alistair McGrath, The Twilight of Atheism: The Rise and Fall of Disbelief in the Modern
World”. New York: Doubleday, 2002.

51
“The New Intolerance”. Christianity Today 51 (2007): 24-25. Later in the chapter, the number of
American atheists will be discussed in greater detail; however, the article’s figures are incorrect. Merely
examining the logic in the article, if atheists totaled 8 per cent of the nation, there would still be more
atheists than Jews, Mormons, Buddhists, Presbyterians, Methodists and Evangelical Baptists, hardly a sign
of “trouble”. If atheists comprised as much as 27 per cent of the American population as this article claims
(they don’t), they would be the largest single denomination in the country and would outnumber Catholics
and all members of a variety of evangelical Protestant churches. That would hardly spell difficulties for
atheists if true. For the latest details on American religions, see The Pew Forum on Religion and Public
Life. “U.S. Religious Landscape Survey, 2008”. Washington, D.C: Pew Research Center, 2008. 12. In
terms of the worldwide trends the article mentions, it depends on which part of the world one examines.
Scholars know that a significant number of Europeans declare themselves atheist. See Mattei Dogan.
“Religious Beliefs in Europe: Factors of Accelerated Decline”. Research in the Social Scientific Study of
Religion. Vol. 14. Ralph L. Piedmont and David O. Moberg, Eds. Boston: Brill, 2003. 161-188. In
England in 2004, 35 percent stated they did not believe in God. Younger adults are even more likely to
declare a non-belief in God, with 45% of younger Britons stating they do not believe in God. See Philip
Jenkins. “Godless Europe?”. International Bulletin of Missionary Research 31 (2007): 115. In another
article in Christianity Today, it was noted that as much as half of Uruguayans are atheists. See Christianity
Today, “Atheists are Common in Uruguay” Christianity Today 37 (1993): 78.

27

52
Again, there is evidence that this Third Great Awakening did not occur; religious fervor and attendance
returned to pre-9/11 levels by early 2002. “Five Years Later: 9/11 Attacks Show No Lasting Influence on
Americans’ Faith”. The Barna Group. 28 August 2006. 10 May 2008
http://www.barna.org/FlexPage.aspx?Page=BarnaUpdateNarrowPreview&BarnaUpdateID=244. “Poll:
Two Years After 9/11, Growing Number of Americans Link Islam to Violence”. The Pew Forum on
Religion and Public Life. 10 September 2003. 8 May 2008
http://pewforum.org/press/index.php?ReleaseID=21.

53
John Winters. “Atheists Want It Made Clear: We Grieve, Too”. The Boston Globe (Globe South). 25
November 2001. 3
rd
Edition: 1.

54
Oliver Libaw. “Godless in America: Not Everyone Finds Comfort in Faith”. ABC News. 31 October
2002. 29 September 2008.

55
Reported in “America Strikes Back”. The Herald-Sun. 11 October 2001: A5.

56
Bridget A. Fitzgerald. Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity. Diss. State University of New York at Albany, 2003. Albany, NY: State University of New
York at Albany, 2003. AAT 3096390: 102, 104.

57
Austin Ching-Chi Yuen. Mandatory Piety: The rise of civil religion in Cold War America from 1945-
1965. Diss. California State University, Fullerton, 2005. Fullerton, CA: California State University
Fullerton, 2003. Dissertations and Theses: The Humanities and Social Sciences Collection: . 84. Penny
Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American Society”: 211-
234.

58
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 211-234.

59
Penny Edgell et al. Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 211-234.

60
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 211-234.

61
Bridget A. Fitzgerald. “Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity”. Also, in the 1990s’, scholars Kosmin and Lachman speculated that atheists lie about their
identity because of the negative connotations of the term. Barry A. Kosmin and Seymour P. Lachman. One
Nation Under God: Religion in Contemporary American Society. New York: Harmony Books, 1993:
290.

62
“Report Card on Prejudice in America”. Zogby International. 23 July 2007. 10 May 2008
http://www.zogby.com/search/ReadNews.dbm?ID=1341.

63
Quoted in Melissa Fletcher Stoelje. “Atheists put their faith in ethics, intellect”. The Bradenton Herald
20 August 2005. 10 May 2008 http://www.religionandsocialpolicy.org/news/article_print.cfm?id=3170.
64
Penny Edgell, Douglas Hartmann and Joseph Gerteis. “Atheists as Other: Moral Boundaries and
Cultural Membership in American Society”: 230.

65
Penny Edgell, Douglas Hartmann and Joseph Gerteis. “Atheists as Other: Moral Boundaries and
Cultural Membership in American Society”: 228-229.

28

66
Charles R. Rushing. “The First Amendment and Civil Disabilities Imposed Upon Atheists”. Duke Bar
Journal 3 (1953): 137.

67
Paul W. Kaufman. “Disbelieving Nonbelievers: Atheism, Competence and Credibility in the Turn of the
Century American Courtroom”. Yale Journal of Law and the Humanities 15 (2003): 402.

68
Paul W. Kaufman. “Disbelieving Nonbelievers: Atheism, Competence and Credibility in the Turn of the
Century American Courtroom”: 402.

69
John Locke. A Letter Concerning Toleration. 1690. Buffalo: Prometheus Books, 1990. 64.

70
John Locke. A Letter Concerning Toleration. 64.

71
J. Crawford Biggs. “Religious Belief as a Qualification of a Witness”. North Carolina Law Review 8
(1929): 31-33. Biggs cites two nineteenth

and twentieth century North Carolina decisions that upheld the
ability of non-Christian theists testify in a court of law. The reasoning was that they could be trusted under
a sworn oath because their belief in God indicated an understanding of a future state of rewards and
punishments. The requirement for witnesses was that they fear both divine punishment and state
retribution for lying under oath. For this reason, atheists were precluded from testifying. The cases
discussed by Biggs were Shaw v. Moore 49 N.C. 25 (1856) and State v. Pitt 166 N.C. 268, 80 S.E. 1060
(1914).

72
Robert Bellah. The Broken Covenant: American Civil Religion in Time of Trial. New York: The
Seabury Press, 1975 21.

73
Charles R. Rushing. “The First Amendment and Civil Disabilities Imposed Upon Atheists”: 137-154;
Paul W. Kaufman. “Disbelieving Nonbelievers: Atheism, Competence and Credibility in the Turn of the
Century American Courtroom”: 395-434.

74
Charles R. Rushing. “The First Amendment and Civil Disabilities Imposed Upon Atheists”: 137-154.
Paul W. Kaufman. “Disbelieving Nonbelievers: Atheism, Competence and Credibility in the Turn of the
Century American Courtroom”: 395-434. .

75
Torcaso v. Watkins 367 U.S. 488 (1961). For a list of the current state constitutions still containing these
provisions, see Edd Doerr and Albert J. Menendez. Religious Liberty and State Constitutions. Buffalo:
Prometheus Books, 1993.

76
Silverman v. Campbell 326 S.C. 208, 486 S.E. 2nd 1, (South Carolina). In this case, an atheist was
barred from the office of notary public in part due to the interpretation of one state official who refused to
sign off on his application because the South Carolina Constitution still prohibits atheists from holding
public office. The South Carolina Supreme Court held that such an act was unconstitutional due to
Supreme Court precedent.

77
Republican Party of Texas. “So help me God…” Republican Party of Texas. 10 May 2008
http://www.texasgop.org/site/News2?page=NewsArticle&id=6205&news_iv_ctrl=1022.
78
Testimony of W. Melvin Adams. “Overview of the Religious Discrimination Issues” before a
Consultation of the U.S. Commission on Civil Rights, in U.S Commission on Civil Rights. Religious
Discrimination: A Neglected Issue. Washington, D.C,: U.S. Commission on Civil Rights, 1979. 177.

79
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004). While the majority opinion avoided
deciding the constitutionality of “Under God” in the Pledge of Allegiance by creating new standing

29

requirements for non-custodial parents, it still concluded that this phrase is not unconstitutional, despite
copious Supreme Court precedent to the contrary.

80
Boy Scouts of America v. Dale 530 U.S. 640 (2000). This case allowed the BSA to continue its policy of
exclusion against homosexuals despite a New Jersey statute forbidding such behavior.

81
Bruce E. Hunsberger and Bob Altemeyer. Atheists: A Groundbreaking Study of America’s Non-
Believers. Buffalo: Prometheus Books, 2006.

82
Bridget Ann Fitzgerald, “Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity”.

83
Martha Nussbaum. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality.
New York: Basic Books, 2008.

84
Bridget Ann Fitzgerald, “Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity”: 24. Other scholars have remarked on the lack of scholarship regarding atheists. As far back as
1932, this paucity regarding atheists was noted. Geo B. Vetter and Martin Green, “Personality Group
Factors in the Making of Atheists” 25 Journal of Abnormal and Social Psychology (1932): 26. J.E.
Veevers and D.F. Cousineau, “The Heathen Canadians: Demographic Correlates of Non-belief” 23 Pacific
Sociological Review (1980): 199. Bridget Ann Fitzgerald. Atheism in the U.S. and the Construction and
Negotiation of a Non-Normative Identity. 2. Bruce E. Hunsberger and Bob Altemeyer. Atheists: A
Groundbreaking Study of America’s Non-Believers. Glenn M. Vernon. “The Religious ‘Nones’: A
Neglected Category”. Journal for the Scientific Study of Religion 7 (1968): 219-229.

85
Regarding prejudice against Chinese and Japanese in California, see Roger Daniels. The Politics of
Prejudice. New York: Atheneum, 1972. Rodney Stark and Charles Glock have written prodigiously on
the topic of religious prejudice. For example, Charles Y. Glock, Ed. Religion in Sociological Perspective.
Belmont, Calif.: Wadsworth, 1973. Charles Y. Glock and Rodney Stark, Religion and Society in Tension
Chicago: Rand McNally, 1965. Charles Y. Glock et al. Adolescent Prejudice. New York: Harper, 1975.
Harold E. Quinley and Charles Y. Glock. Anti-Semitism in America. New York: Free Press, 1979.
Rodney Stark, Bruce D. Foster, Charles Y. Glock and Harold E. Quinley. Wayward Shepherds: Prejudice
and the Protestant Clergy. New York: Harper and Row, 1971.

86
The Journal of Church and State frequently publishes articles on the topic of atheist exclusion. See for
example, Matthew W. Cloud. “One Nation, Under God”: Tolerable Acknowledgement of Religion or
Unconstitutional Cold War Propaganda Cloaked in American Civil Religion?” Journal of Church and State
46 (2004): 311-340. Other articles discussing discrimination against atheists include Jennifer Gresock,
“No Freedom from Religion: The Marginalization of Atheists in American Society, Politics, and Law”,
Margins 1 (2001): 569-610. Steven K. Green. “Symposium: A Second-Class Constitutional Right? Free
Exercise and the Current State of Religious Freedom in the United States: Religious Liberty as a Positive
and Negative Right”. Albany Law Review 70 (2007): 1453-1472.

87
See Charles R. Rushing. “The First Amendment and Civil Disabilities Imposed Upon Atheists”: 137-
154.

88
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004).

89
Diana L. Eck. “Prospects for Pluralism: Voice and Vision in the Study of Religion”. 75 Journal of the
American Academy of Religion (2007): 743.

30

90
Diana L. Eck, “Prospects for Pluralism: Voice and Vision in the Study of Religion”: 756-758.

91
Diana L Eck. A New Religious America: How a Christian County Has Become the World’s Most
Religiously Diverse Nation. New York: HarperCollins Publishers: 2001.
“Faith Has a Limited Effect On Most People’s Behavior”. The Barna Group. 24 May 2004. 12 June 2004
http://www.barna.org/FlexPage.aspx?Page=BarnaUpdate&BarnaUpdateID=164.

92
Robert Wuthnow. America and the Challenges of Religious Diversity. Princeton, NJ: Princeton
University Press, 2005.

93
Richard W. Flory and Donald E. Miller eds. Gen X Religion. New York: Routledge, 2000.

94
Noah Feldman. Divided by God: America’s Church-State Problem and What We Should Do About It.
New York: Farrar, Straus and Giroux, 2005. 242.

95
Stephen Warner. "Works in Progress toward a New Paradigm for the Sociological Study of Religion in
the United States". American Journal of Sociology 98 (1993): 1044-1093.

96
Bridget Ann Fitzgerald. Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity: ii.

97
Bridget Ann Fitzgerald. Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity: . iii.

98
Colin Campbell. Toward a Sociology of Irreligion. London: The Macmillan Press Ltd, 1971. 39.

99
Samuel L. Huntington. Who Are We? The Challenges to America’s National Identity. New York:
Simon & Schuster, 2004. 7.

100
The Pew Forum on Religion and Public Life, “U.S. Religious Landscape Survey, 2008”. Washington,
D.C: Pew Research Center, 2008.

101
The Baylor study from 2005 distinguishes those who do not attend church but who engage in non-
traditional, non-institutionalized religious practices. Because of this distinction, the study concluded that
the number of religious Americans has been under-counted by about 4% because many studies had failed to
ask detailed questions about the religious practices of this population, relying only on church attendance as
a measure. Baylor Institute for Studies of Religion. American Piety in the 21sth Century: New Insights to
the Depth and Complexity of Religion in the U.S. Also, The Pew Forum on Religion and Public Life,
“U.S. Religious Landscape Survey, 2008”: 10.

102
Frank Newport. “Americans More Likely to Believe in God Than the Devil, Heaven More Than Hell”
Gallup. 13 June 2007. 11 May 2008 http://www.gallup.com/poll/27877/Americans-More-Likely-Believe-
God-Than-Devil-Heaven-More-Than-Hell.aspx.

103
The Baylor Institute for Studies of Religion. American Piety in the 21sth Century: New Insights to the
Depth and Complexity of Religion in the U.S. Waco, TX: Institute for Studies of Religion, 2006. 20. The
actual number of persons claiming there is no God was 5.2%. However, 8% of Jews stated they were also
atheists, p. 28. This study numbers Jews at 2.5% of the population. The “All other” category includes non-
traditional Christian groups such as Mormons and Jehovah’s Witnesses and is counted at 4.9% of the
population, less than the percentage of atheists. Incidentally, this study found that 10.8% of the population
is unaffiliated with any church or religion, however more than half of these folks do believe in some
divinity, p. 20.

31

103
The Pew Forum on Religion and Public Life, “U.S. Religious Landscape Survey, 2008”: 5. A problem
with this study is that it did not ask respondents for additional affiliations as the Baylor study did. For
example, it seems to not comprehend that one can be both a Jew and an Atheist, or a Unitarian Universalist
and an atheist. The results of this survey caused one journalist to unthinkingly report that this survey
confirmed his earlier statement that “American atheism was going the way of the freak show”, ignoring the
numbers of proclaimed agnostics and secular non-affiliates in the survey, and also overlooking the fact that
the number of atheists alone equaled the number of Jews. See Stephen Prothero “Politics and a new view
of morality have radically altered the religious landscape”. USA Today. 10 March 2008: 11.
Penny Edgell, Douglas Hartmann and Joseph Gerteis, “Atheists as Other: Moral Boundaries and Cultural
Membership in American Society”: 214.

104
Penny Edgell, Douglas Hartmann and Joseph Gerteis, “Atheists as Other: Moral Boundaries and
Cultural Membership in American Society”: 214. Baylor Institute for Studies of Religion. American Piety
in the 21sth Century: New Insights to the Depth and Complexity of Religion in the U.S”. Also, The Pew
Forum on Religion and Public Life, “U.S. Religious Landscape Survey, 2008”.

105
The Pew Forum on Religion and Public Life. “U.S. Religious Landscape Survey, 2008”: 5. A problem
with this study is that it did not ask respondents for additional affiliations as the Baylor study did. For
example, it seems to not comprehend that one can be both a Jew and an Atheist, or a Unitarian Universalist
and an atheist. The results of this survey caused one journalist to unthinkingly report that this survey
confirmed his earlier statement that “American atheism was going the way of the freak show”, ignoring the
numbers of proclaimed agnostics and secular non-affiliates in the survey, and also overlooking the fact that
the number of atheists alone equaled the number of Jews. See Stephen Prothero. “Politics and a new view
of morality have radically altered the religious landscape”. USA Today. 10 March 2008: 11.

106
Penny Edgell, Douglas Hartmann and Joseph Gerteis. “Atheists as Other: Moral Boundaries and
Cultural Membership in American Society”: 214. The quote is Edgell speaking of the 7 percent figure for
atheists and agnostics, an interesting remark, considering, as noted, the size of the atheist population
relative to the smaller but more culturally-accepted religious groups.

107
Penny Edgell, Douglas Hartmann and Joseph Gerteis. “Atheists as Other: Moral Boundaries and
Cultural Membership in American Society”: 211-234.
The Pew Forum on Religion and Public Life. “U.S. Religious Landscape Survey, 2008”.

108
Thomas Randall, Humphrey Taylor and David Krane. “How Does Social Desirability Affect
Responses?: Differences in Telephone and Online Surveys”. Conference Papers – American Association
for Public Opinion Research (2005): 1. Other researchers find the difference between online and self-
reported (pen and paper) responses not significantly different. EF Risko, LC Quilty and JM Oakman.
“Socially desirable responding on the web: investigating the candor hypothesis”. Journal of Personality
Assessment 87 (2006): 269-276.

109
Humphrey Taylor. “While Most Americans Believe in God, Only 36% Attend a Religious Service Once
a Month or More Often”. The Harris Poll #59. 15 October 2003. 29 September 2008
http://www.harrisinteractive.com/harris_poll/index.asp?PID=408.

110
C. Kirk Hadaway, Penny Long Marler and Mark Chaves. “What Polls Don’t Show: A Closer Look at
U.S. Church Attendance”. American Sociological Review 58 (1993): 741.

111
Barry A. Kosmin and Seymour P. Lachman. One Nation Under God: Religion in Contemporary
American Society. 290. See also John Allen Paulo. “How many nonbelievers?” Los Angeles Times. 14
March 2008: A 17.

32

112
“Atheists and Agnostics Take Aim at Christians”. The Barna Group. 11 June 2007. 6 May 2008
http://www.barna.org/FlexPage.aspx?Page=BarnaUpdate&BarnaUpdateID=272.

113
Bridget Ann Fitzgerald. Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity. iii.

114
Boy Scouts of America v. Dale 530 U.S. 640 (2000).

115
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004).

116
Boy Scouts of America v. Dale 530 U.S. 640 (2000).

117
From the Boy Scout Oath, found at Boy Scouts of America. “Mission Statement” Boy Scouts of
America. 2 May 2008 http://www.scouting.org/media/mission.aspx. “On my honor I will do my best to
do my duty to God and my country and to obey the Scout Law; To help other people at all times; To keep
myself physically strong, mentally awake, and morally straight.”

118
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004).

119
Penny Edgell, Douglas Hartmann and Joseph Gerteis. “Atheists as Other: Moral Boundaries and
Cultural Membership in American Society”: 213.
33
Chapter 2
Misconceptions and Prejudices about Atheists
Introduction
Chapter One provided an overview of atheist exclusion in the United States.
Although it was usually subtle, the religious outpouring after 9/11 did not encourage the
inclusion of Atheists in American social life. To many atheists, it seemed that there was
only one way to express one’s grief after 9/11, and that was in public occasions that
infused praises of God with patriotism. As Americans of diverse religious backgrounds
prayed together after 9/11, atheists were excluded and left with the impression that
atheists could not grieve like the rest of the purportedly God-fearing public because they
did not worship as required by the de facto religion. Consequently, while America
celebrated its religious pluralism, atheists were deliberately not invited and also censured
in the press.
Chapter Overview
Using the framework of a de facto American Civil religion
1
explained in the
previous chapter, this section will chronicle how the United States’ continually-
expanding “umbrella”
2
of religious pluralism came to include individuals from a range of
religious backgrounds. Following, I will contrast that acceptance with the consistent
rejection of atheists which results from a continuing skepticism about their moral
character. In the United States, the combination of secular patriotism coupled with
theistic belief known as Civil Religion further subordinate unbelievers. The historical
reasons for this cynicism toward atheists will be explored, beginning with the anti-
atheistic misconceptions that have persisted over the centuries, first in England and in the
34
United States. I will delve into how this rejection of atheists manifests itself in 21
st

century America in some of the right-wing media was well as in public opinion polls.
America’s Religious Pluralism – before and after 9/11
In the 400 or so years before 9/11, American history had been marked by the slow
broadening of those religious groups accepted by the American mainstream under the
rubric of American religious pluralism.
3
This contrasts from the situation in early
America, when Protestantism and more specifically Anglicanism usually reigned
supreme. A welcoming religious pluralism was not present in many of the early
colonies.
4

Several of the American colonies were founded by Protestant sects seeking to be
free of intolerant religious policies in England. The only freedom of religion sects such
as the Puritans and the Pilgrims of Massachusetts were seeking was the freedom to
practice their own religion unencumbered. Religious life was a central focus in many of
the settlements such as in Massachusetts and even in Virginia.
5
The majority of colonies
had official establishments, for example, the Church of England dominated in Virginia,
and Puritanism (later Congregationalism) in Massachusetts. There were exceptions.
While most inhabitants of the Dutch Manhattan colony were congregants of the Dutch
Reformed Church, an unprecedented religious toleration existed there that more than one
author has stated was the model for the broad religious freedoms Americans enjoy.
6
That
did not last, however. When the British finally conquered the entire colony of New York,
the Anglican Church was established there as well.
7
In New York, as in most of the
colonies with establishments, churches were often financially supported by the state, and
35
residents of the colonies were sometimes required to pay a tax to pay the salaries of
teachers in the established church’s schools.
8

It is beyond the scope of this study to cover the extent to which religious
establishments and religious persecution existed in the colonies or even in the states after
the ratification of the Bill of Rights because that has been expertly covered elsewhere.
9

Suffice it to say that a number of states had either official or de facto establishments even
after 1776. Nor did the situation change much by the time the Bill of Rights was ratified
in 1787.
10
In fact, the last state establishment lasted until 1833, in Massachusetts.
11

Even after the last state church fell, rights were limited to Christians. Nineteenth
century courts openly declared this to be a nation founded on Christian principles. In an
infamous case from 1811, the New York State courts convicted a man of blasphemy and
ruled that Christianity has always been understood to be the basis for sound civil
government.
12
The court in this case wrote that, “For that whatever strikes at the root of
Christianity, tends manifestly to the dissolution of civil government”
13
, decreeing that
irreverence regarding symbols important to Christianity were in fact “dangerous to the
public welfare” and that such actions were not protected by the state constitutional
guarantees.
14
Later in the 19
th
century, the Supreme Court cited the case as precedent and
declared that, “this is a Christian nation.”
15
Even more specific than merely Christian
supremacy, some scholars view the 19th century as an era of broad Protestant liberal
hegemony, where Protestant mainline religion largely held sway and its leaders had great
public influence.
16
Even in such a limited state, this Protestant religious pluralism was
still considered an example of unprecedented religious diversity for its time.
17

36
While the following assessment by Eck and others may be overly sanguine,
nevertheless, relative to other religious groups, her analysis still highlights the point that
atheists are the exception to the toleration generally afforded other religious groups, a
point made especially apparent in the wake of 9/11, Dale and Newdow.
According to Diana Eck, the nation’s religious pluralism fundamentally changed
beginning in the early 20
th
century, when immigration brought in an influx of Jewish and
Catholic adherents. Coupled with the effects of industrialization and the growing
acceptance of naturalistic views of human origins such as Darwinism, minority religions
were no longer willing to acquiesce to this domination.
18
Very slowly, “step by step”
19

Jews and Catholics became accepted to the point that their ideas and practices were
eventually considered as being equal with those of Christians.
20
In fact, distinguished
religion scholar Martin Marty is of the opinion that this toleration became so broad that
by the 1960’s, anti-Semitism had become “unfashionable”.
21

Following the post-1965 waves of Asian and South American immigration into
the United States, acceptance was slowly opened up to Eastern religions including
Buddhism, Hinduism and others.
22
Although this is an arguable proposition, by the early
21
st
century, what Martin L. Marty had predicted in the 1970s had made itself apparent,
especially after 9/11: “Pluralism meant that no religion was to have a monopoly or a
privileged position and none should be a basis for second-class status for others.”
23
As
Chapters Four and Five will show, following World War II, Supreme Court jurisprudence
moved in the direction of granting equal status to most varieties of religious thought,
even the ever-disfavored atheism. So in that aspect, Marty is correct. Under the law, no
religious or non-religious group was supposed to have dominance over the other.
37
By the late 20th and early 21st centuries the nation had evolved into one where a
diverse range of theistic religious beliefs, including non-Christian beliefs such as Islam
24
,
were accommodated as full participants in public ceremonies. Many adherents of
Christian and non-Christian religions entered public discourse
25
, their followers largely
accepted as trustworthy citizens by most Americans.
26
However, standing outside of that
acceptance were atheists, who continued to be viewed as outsiders by their fellow
Americans.
While there is no denying that Muslims bore their fair share of prejudice and
government intimidation after 9/11
27
, toleration remained largely limited to believers.
Perhaps some of this intolerance could be explained by historical factors. I agree with
theology and education scholars Loomis and Rodriguez who claim that, “It was a
founding presupposition of this republic that God exists.”
28
This remains true even
though the word God was omitted from the Constitution.
29
The great majority of framers
did not view the existence of God as a debatable proposition. The importance of God and
the worship of God were mentioned in many state constitutions, as well as in the
Declaration of Independence.
30
God-belief as a core aspect of Americanism is expressed
through Civil religion, which, as already noted, unites patriotism and faith, and seems to
be a requirement for full acceptance by one’s fellow Americans.
American Civil Religion
With Protestantism no longer the hegemonic belief system that it was in the 19
th

century and in the absence of a unifying, state-endorsed religion such as the Anglican
Church in England, another kind of state religion has replaced it. That new de facto
religion is the Civil religion.
31
In early 21
st
century America, where a wide variety of
38
religious practices are granted, in theory at least, equal legal and social standing, the Civil
religion serves as a common unifying religion for Americans. This civil religion is not
Christian, but is better thought of as a “generic monotheism”
32
, best described by scholar
Samuel L. Huntington as “the easy “mingling of religion and patriotism.”
33
Most
Americans are comfortable opening their arms to embrace, at least superficially, new
religious groups, as long as they adhere to the American civil religion and eagerly pledge
their allegiance to the nation, the flag, and most importantly, to God.
34
Furthermore,
“America’s civil religion provides a religious blessing to what Americans feel they have
in common”.
35
This allowed each new wave of immigrants to continue to follow their
own religious beliefs and cultural practices while also believing that their own God has
blessed their adopted country.
36
Essentially, new immigrants are converted to this
national religion even as they continue to practice their own. One scholar describes this
conversion process as follows: “Civil religion converts Americans from religious people
of many denominations into a nation with the soul of a church”.
37

The Civil religion has four basic tenets that Political scientist Samuel L.
Huntington describes well. First, as I noted earlier, this nation was founded on the
supposition that that American Government “presupposes a Supreme Being”
38
; this Civil
religion that unites love of God and country recognizes that. Second, there is a strong
historical belief in the principle that Americans are God’s chosen people who have been
sanctioned by God to “do good in the world”.
39
Third, there is a public acceptance of the
prevalence of public acknowledgements of religion (Ceremonial deism), such as the
President’s oath of office on the Bible and the words “In God We Trust” on our currency.
39
Finally, national ceremonies have a religious tinge to them and often have the feeling of a
religious service almost seeming to follow a Protestant liturgy.
40

For Huntington, this American civil religion demonstrates that Americans’ public
worship of God is inherent in national pride. What is patriotic cannot be divorced from
belief and the worship of God. What Americans have in common is both their love of
God and country. Of great relevance to my study is Huntington’s observation that the de
facto religion poses a problem for atheists, who do not accept the God aspect of God and
country. Highlighting the marginalization of the atheist, Huntington says of atheists,
“[America’s civil religion] is not compatible, however, with being atheist” because our
civil religion inherently invokes “a transcendental Being apart from the terrestrial human
world”.
41

Hence, an atheist cannot be a complete American because he rejects one
indispensable piece of American patriotism: the belief in God. What contributes to
Americans’ animosity towards atheists is how much Americans perceive the national
legacy to be true marriage between God’s divine blessings and love of country. Atheists
reject one essential half of this pairing, making them categorical outsiders. Barry Lynn,
the Executive Director of Americans United for Separation of Church and State, told a
reporter after 9/11 that he was troubled with how apparent this link between religiosity
and patriotism had become. I contend that this has been the status quo for many decades
but that 9/11 highlighted it further.
42

This raises the question of why those who reject belief in a divine being continue
to be mistrusted into the 21st century. After all, is it not possible to reject God and still
be a patriotic American? Are not atheists law-abiding citizens
43
? Apparently not,
40
according to former President George Bush, who allegedly told a reporter in 1987: “No, I
don’t know that atheists should be considered as citizens, nor should they be considered
patriots. This is one nation under God.”
44
No, replied the Americans who responded to
the University of Minnesota survey in 2006, whose respondents viewed atheists as the
least likely among all groups to share core values with other Americans.
45
To many
Americans, atheists live outside what is considered to be the “moral boundaries” of polite
society, as the title the journal article summarizing the UM survey results hints.
46
Simply
put, American society cannot fully accept the godless because its notion of the patriotic
views unbelief as non-normative and deserving of suspicion. As a result, worship of this
American de facto religion is not a voluntary exercise.
47

Stereotypes of Atheists – Past and Present
How can a Presidential candidate make such a statement about atheists without
consequence? Perhaps President Bush’s last sentence provides much of the answer. It is
atheists’ professed lack of a belief in a deity that places atheists outside the boundaries of
social acceptance. It is not just that they refuse to accept the two halves of American
civil religion: God and patriotism. It is that they reject the existence of God altogether.
Long before the Boy Scouts were legally permitted to discriminate against
atheists and long before Michael Newdow dared to question how government could
prescribe a statement of belief in God in the classroom, atheists were the subject of
intense scorn, prejudice and vilification. For centuries, it has been taken as a verity that a
belief in God is necessary to understand the “moral ‘ought’”
48
; that godlessness precludes
true understanding of right and wrong.
49

41
There are various prejudices about atheists that pervade past and current
understandings regarding unbelievers. Atheist George A. Ricker relates the common
stereotypes he has heard attributed to non-believers in his conversations with other
Americans. He has heard that atheists are bad people because their lack of belief in a
higher power automatically connotes that they cannot believe in right and wrong. He has
been told that atheists cannot distinguish between right and wrong and that is what made
them untrustworthy. Americans have claimed that atheists must also be selfish and
incapable of meaningful relationships with others and that atheists are Devil worshippers.
He has also found that many think that atheists are not sincere in their claims and really
do believe in God. Even if an atheist is perceived as possessing positive characteristics
such as integrity and morality, Ricker has found that individuals will ascribe the cause as
owing to the individual’s personality and psychology, rather than to a personal belief
system that values morality and integrity without God-belief.
50

In addition to the themes Ricker has reported, much of the historical imagery
surrounding atheists commonly invokes two central themes that show up in opinion polls
or in the popular media. First, that atheists are willfully destroying American values and
religion, and will use all means possible to forcefully convert the unwitting masses to
their ways. Second that these individuals embody traits that are “anti-thetical [sic] to
American ideals”.
51

Atheism is Synonymous with Wickedness
In Chapter One, I mentioned Christian philosopher John Locke’s seminal work, A
Letter Concerning Toleration. In it, Locke vigorously argued why toleration was
necessary among Christian sects in faction-ridden England of the mid-17
th
century and in
42
the new American colonies. He stated that forcing individuals to proclaim a religious
belief they did not hold was hypocrisy, an act that was un-Christian and subjected all to
God’s wrath.
52
As I previously stated in Chapter One, Locke drew the line with
atheists.
53
Repeating a longstanding adage, he proclaimed that atheists did not deserve
toleration because their lack of a belief in God meant made them untrustworthy. Without
this promise of retribution in the afterlife for sins committed, he took it as fact that they
cannot be depended upon.
54
He wrote,
...Those who are not at all to be tolerated who the being of
God. 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. Besides also, those that by their atheism undermine and
destroy all religion, can have no pretense of religion
whereupon to challenge the privilege of toleration...
55

It was inconceivable to Locke that godless individuals could live by a rigorous set of
personal ethics. Only those who believed in god and feared eternal retribution could be
trusted to act with integrity. This attitude actually points to a deep lack of confidence in
human virtue absent the threat of punishment by God in the afterlife for sinful living.
56

Some of the Founding Fathers also seemed to have no sense of shared humanity
with atheists. Benjamin Franklin boasted about the lack of atheism in the early United
States to a British colleague:
Atheism is unknown there, Infidelity rare & secret, so that Persons live To
a great age without having their Piety shock’d [sic] by meeting with either
an Atheist or an Infidel.
57

Although Thomas Jefferson voiced his disgust with the Ruggles blasphemy decision
58
to
good friend John Adams in 1814
59
, nevertheless, later in his life he seemed to imply in an
1820 letter to John Adams that atheism was a form of heresy.
60

43
These men learned these attitudes from the culture that surrounded them. This
negative perception of atheists was instilled into English culture. As was noted in
Chapter One, the belief that atheism bred immorality and dishonesty was part of English
Common Law and then became part of American law.
61
Discriminatory legal practices
that targeted atheists were adopted from English law and were codified into several state
constitutions. As a result, a number of states prohibited atheists from participating on a
jury pool, testifying in a trial, holding public office and even refused to honor the dying
wishes of an atheist.
62
The refusal to honor the dying wishes of an atheist was possibly a
reflection of both the distrust of atheists’ morality as well as a skepticism that individuals
could live an entire life without a belief in a higher power.
63
In places where an atheist’s
final requests were ignored, there is evidence that the courts justified this on the basis of
prejudice about atheists: courts insisted that the unbeliever was of poor moral character
due to his atheism and for that reason final wishes were not honored.
64
As I stated in
Chapter One, this situation continued until 1961 when the Supreme Court overturned
such laws in Torcaso v. Watkins.
65
Nevertheless, several state constitutions still contain
exclusionary wording regarding atheists.
66

Atheists and Suspicion of Collusion
Not only suspected of moral turpitude, atheists have been frequently accused of
conspiring to furtively impose their value system on Americans while also corrupting
youth. Throughout much of modern history, the alleged conspirators that included
atheists (such as scientists, evolutionists and communists) were often accused of causing
that era’s purported crisis of moral decline, whatever that might have been. For
example, early twentieth century pamphlets decrying the teaching of evolution in the
44
schools told readers that, “Scientists are alleged to somehow conspire to wreck our
economy, worsen our style of life, and corrupt the souls of our children.
67
Such
complaints weren’t limited to those who were scientists. Very often, the notion of
atheist, scientist and evolutionist were used interchangeably. For instance, William
Jennings Bryan, the famed anti-evolutionist and populist, frequently combined
atheists/scientists/evolutionists into a single diatribe about those elements in society that
were scheming to overrule the majority religion by imposing evolutionary theory on
unsuspecting school children. At one point, he was quoted as criticizing the
“evolutionists” for teaching at public expense a so-called scientific interpretation of the
Bible when Orthodox Christians are not permitted to teach an orthodox interpretation of
the Bible.”
68
Elsewhere, he recommends that “atheists and agnostics be required to build
their own schools and colleges in which to teach their doctrines.”
69
Evangelicals also
seemed to confound scientists and atheists when they accused evolutionists of using
Darwinist theory to drive Christ out of the minds of children.
70

In the 20
th
century, the rise of Communism as a political force amplified public
suspicion of atheists, adding the title of communist sympathizer to a long list of unsavory
traits. Some Christian textbooks conflate atheism and communism. An example of the
rhetoric about atheists that can be found in Christian textbooks reads, "No God means no
law, no law means no absolute standards of good and evil or right or
wrong....Communism denies that man is God's creature and image in bearer, that man has
a soul."
71

In the early 21
st
century, the term atheist is often used synonymously or
substituted for liberal
72
, “liberal elite”
73
, “secular-progressive”
74
and “secular
45
humanist”.
75
In addition, the American Civil Liberties Union is often painted as
atheism’s main spokesperson as well as its purported legal counsel.
76
The theme among
anti-atheists remains very much the same as it did in the early 20th century, as atheists
and others are accused of being responsible for everything including the massacre at a
school in Paducah, Kentucky
77
, the catastrophe of 9/11
78
, the decline of American faith
79

and a broad range of social problems in our society,
80
all while imposing their values on
the unsuspecting, unwilling majority.
81

The University of Minnesota study speculated that Christian Right rhetoric about
atheists in the popular media has contributed to the continuing hatred of atheists.
82

While there may be some proof of this
83
, this conjecture warrants further study. It is
critical to note, however, that much of the same mistrust of atheists that been repeated
throughout much of U.S. history existed long before Rush Limbaugh, Michael Savage
and Bill O’Reilly filled our airwaves and published best selling books. With the
prominence of this anti-Atheist rhetoric in the mainstream press, on radio talk shows, on
cable talk shows, in Christian textbooks, and elsewhere, it is logical to suppose that this
oratory may influence public beliefs about atheists and seculars. Perhaps part of the
reason for their success is that they merely reinforce ages-old prejudices about atheists.
Nevertheless, it is clear from survey data that these beliefs are already widespread in
American society.

46
Survey Data on Atheists
National surveys continue to show that a negative image of atheists pervades
American thought. Few surveys directly measure how far the accusations detailed in the
foregoing paragraph have influenced Americans’ thinking towards Americans. However,
it is an understatement to say that atheists are not well liked by the majority of
Americans. The remainder of this chapter will discuss how these misperceptions of
atheists are found in national polls undertaken by a variety of research outfits.
Overall views of atheists
When asked by surveyors about their opinions of atheists as a whole, Americans
tend to take a negative view. In fact, Americans like Muslims more than atheists. The
Pew Research Center asked respondents in 2003 how they felt about some religious
groups in America. Even post-9/11, Muslims were given more favorable ratings as a
group than atheists.
84
Atheists’ unpopularity among Americans has been seen in polls
going back to the 1950s, during the Cold War when Communism was salient in the mind
of Americans.
The past link between atheism and communism
Surveys of the American public conducted in the 1950s demonstrated a close
association in the minds of many between communism and atheism.
85
In 1955, Samuel
A. Stouffer surveyed 6,000 individuals nationwide on this topic. His survey focused on
perceived threats from communist influence and their subsequent effect on toleration of
non-conformists.
What was notable about Stouffer’s survey results was how salient the
communism-atheism link was for Americans of that era. One quarter of Americans
47
perceived communism as being “against religion” and an “assault on religious values”.
The atheism of communism seemed to stand out for some Americans as communism’s
most significant feature, more so than other key concepts, such as its aspiration to abolish
class distinctions, which drew only 15 per cent of responses.
86

In addition, Americans of the 1950s were so suspicious of atheists that majorities
felt they should be denied fundamental rights. The majority of Americans of that time
(60%) indicated that they even opposed atheists’ First Amendment right to free speech.
They also told pollsters they would oppose allowing an atheist to speak in their
community, would support removing a book advocating atheism from their local library
and that atheists should be denied employment at public universities.
87
These figures
suggest that large majorities of Americans of the 1950s did not believe that atheists
deserved a basic right to free speech or the right to employment.
88

That connection remained salient well into the 1990s, when political scientists
Kosmin and Lachman concluded that the reason so few individuals declared their atheism
on national polls was that atheism and communism were still so closely associated in the
minds of many Americans that even those who are atheists were fearful of revealing their
true beliefs for fear of public condemnation.
89
The scholars remarked that:
It seems that the term atheist is still unpopular today,
possibly because it was associated with “atheistic
communism” during the Cold War. The contacts we have
had with the organized chapters of American Atheists
suggested that these non-believers perceived themselves as
an oppressed group. As one told us, the worst thing you
can be in this country is an atheist...everything else is
excusable.
90

48
Even in the early 21
st
century when the Cold War is many years in the past, Communists
still elicit negative reactions from Americans. In 2005, James L. Gibson found that
Communists are still highly disliked by Americans and that over half approved of local
authorities prohibiting the group from holding a demonstration in the community.
91

Atheists Remain Unpopular
Like Communists, Americans continue to express a distaste for atheists. For
example, the Gallup Poll frequently asks respondents to state their opinions about
individuals from a variety of religious backgrounds. Data from 2006 shows that atheists
are by far the most unpopular of all groups, with only 15% of Americans viewing them
positively, and 44% saying they have a negative opinion of atheists. Gallup then scores
the popularity of various groups by subtracting the total negative score from the total
positive score. Using this tabulation, Gallup gives atheists a net positive score of -29,
while Muslims scored -4, and Mormons -1. All other groups scored in the positive range,
except for Scientologists, who actually fared worse than atheists.
92

Americans’ dislike of Americans also translates into a desire to see some of their
rights revoked. In the 2005 survey that was cited above concerning the unpopularity of
Communists, James L. Gibson found that 79.6% of Americans express “some antipathy”
towards atheists and that those who do not like atheists would also support restricting
their civil rights in some ways. For example, nearly half would support local authorities
prohibiting atheists from holding a demonstration in their community.
93

Americans perceive a difference between seculars and atheists, so it is not
seculars that Americans have an issue with. The Pew Forum found that seculars were
viewed positively by half of Americans, 50%. However, only 34% of Americans
49
approved of sub-section of that group: Atheists. In fact, more than half, 52% of
respondents said they held an unfavorable opinion of atheists. No other group fared as
poorly; in fact, no other group among those queried (Protestants, Catholics, Jews,
Evangelical Christians, Muslims, seculars and atheists) received an approval response
below 50%, except for atheists.
94

Atheists and Trust
Most of the questions asked about atheists simply request the respondents to
categorize their general feelings about the group. However, in 2005, Baylor University
went deeper when it asked respondents to relate their levels of trust for individuals of
various religious backgrounds.
95
Question 50 of that survey asked, “How much would
you say you trust people of the following groups…people who do not believe in God?”
96

Here, atheists did not fare as poorly. Close to 60% of respondents stated that they trusted
such individuals “some”. 7.6% stated they did not trust atheists at all, 23% stated they
would trust them “a little”, and 9.5% stated they trusted non-believers “a lot”.
97
In this
survey, Muslims actually fared worse than atheists, but if one considers the explanation
that Muslims are in fact a “lightning rod group”
98
that is viewed as an external threat by
many, this takes on some context and explains why Muslims performed worse in this
particular poll question. This explanation is supported in James L. Gibson’s 2005 study,
which demonstrated that the Muslim that Americans feel most antipathy towards is the
“Radical Muslim”.
99
This adds some weight to the explanation that the Baylor question
was too vague and did not probe deeply enough into which Muslims Americans might be
imagining when they answer the question, not just Muslims living in the United States.
50
The University of Minnesota (UM) team measured trust another way in their 2007
survey, asking individuals how well-aligned their views of America were with those of
other religious backgrounds and then by requesting participants to relate how well
different groups agreed with their “Vision of American Society”.
100
Using this standard,
atheists fared the worst. Close to 40% of Americans said that atheists do not agree with
their vision for the United States. Atheists performed worse on this scale than Muslims
(26.3%), homosexuals (22.6%) and conservative Christians (13.5%).
101

Surprisingly, atheists were unpopular even among seculars. When the UM study
correlated agreement with this question with religious identity, even the non-religious
reported some disaffection with atheists: over one-sixth (17%) of un-churched
individuals stated that they did not see atheists as sharing their view of American
society.
102

Atheism, Immorality, and Selfishness
While discussing the results of their in-depth interviews with respondents to the
University of Minnesota study, the researchers found some of the old themes mentioned
earlier in this chapter re-emerging. Among those who expressed a mistrust of atheists,
some told the investigators that they viewed atheists as members of the criminal lower-
class who recklessly engaged in activities such as drug use and prostitution.
103
Another
individual repeated the belief that our prisons are full of people lacking a “spiritual
core”
104

In the view of some Americans, if atheists are not among the lowest strata of
society, then they are among the wealthiest of Americans. According to these
respondents, whether they are rich or poor, atheists’ lack of concern for the common
51
good is perceived as a threat to our nation. Some of the University of Minnesota
participants stated that atheists are part of the super-elite and blamed atheists’ self-
absorption for society’s rampant, consumerism, rising crime and increasing social
problems.
105

What emerges from this data is contradictory views of atheists. Apparently,
atheists are both very poor and dissolute, but they are also wealthy and elitist. It doesn’t
matter that the survey participants could not draw upon personal experience to come to
these conclusions, or that atheists are a small, disorganized group. Americans view
atheists and their rejection of God as a scapegoat for the wider problems in the United
States. It is this view of the hypothetical atheist, whether rich or poor, that led to the
view expressed by nearly half of the University of Minnesota respondents who said they
would disapprove of their child marrying an atheist.
106

The Atheist President
Atheists such as Michael Newdow often lament national polls that show the
atheist to be the least likely of all hypothetical candidates to win election as President
107

Similar to non-believers like Newdow, sociologists commonly view the answers to poll
questions regarding who Americans would vote for as President (i.e., Jew, Mormon,
Atheist, Black, Woman, etc.) as an indicator of levels of prejudice against certain
groups.
108

An oft-cited indicator of intolerance against skeptics is the statistic that
Americans are less likely to vote for an atheist for higher office than any other minority
group. While, based on this statistic alone, Americans have grown more tolerant of
atheists than they were in the 1950s
109
, the majority of Americans in 2007 still indicate a
52
preference for homosexuals and Muslims.
110
Atheists are not regarded as fit for the
highest office in the land, as scholars Kramnick and Moore noted in 1996: “To declare
oneself an atheist is de facto to disqualify oneself for the office of the President of the
United States”.
111
Summing up the attitude towards religion and atheists in the 1950s,
sociologist Will Herberg noted that, “Religion is given continued public and political
approval... Godlessness is a powerful epithet....At least nominal acceptance of religion
tends to be a prerequisite to political success”.
112

By 1999, Gallup poll numbers for the theoretical Atheist candidate had improved
appreciably since the Red Scare of the nineteen-fifties. In March of 1999, 49% of
respondents said they would vote for an atheist for President, not a great figure, but an
improvement over the mere 18% who affirmed they would vote for an atheist in 1958.
113

However, the percentage of individuals indicating they would vote for a atheist for
President was actually less than any of the other groups about which respondents were
surveyed, including homosexuals, a group like atheists that is often vilified by many
Americans in early 21
st
century America. In this same poll, Americans claimed a
willingness to accept a Black, Jew or woman as President, with 95%, 92% and 92%
respectively telling pollsters that they were would vote for someone from one of these
groups as President.
114
Homosexuals did not fare as well, with only 59% of poll
respondents saying they would vote for such a person. While homosexuals might object
to this show of prejudice, they nevertheless scored a full ten percentage points higher
than the hypothetical atheist.
115

53
The Gallup Organization summarized their 1999 findings as follows:
It has become less and less acceptable in recent years—
both legally and normatively--for Americans to overtly take
into account such characteristics as race, gender, religious
preference, or sexual orientation in making decisions on
hiring or firing employees. Perhaps not surprisingly, then,
a new Gallup poll demonstrates that Americans are less
willing now than in the past to express an unwillingness to
vote for candidates for president on the basis of these same
types of characteristics. Still, the poll shows that members
of certain groups, including atheists, homosexuals and
Mormons, could find that these characteristics, even today,
could be taken into account as negative factors by a
sizeable portion of the U.S. population.
116

Despite Americans’ acknowledgement in other surveys is possible to be moral
without religion
117
, Americans still tell pollsters they want their President to have strong
religious beliefs.
118
As I have tried to show in this chapter, most Americans seem to
believe that atheists are not full citizens of their society. As a result, they are not ready to
choose an atheist as President, even in a ground-breaking year where the Democratic
nominee will likely to be a man of African-American descent.
Conclusion
In the introductory passages to her 2006 study of atheist exclusion from “cultural
membership in American society”, Penny Edgell wrote:
Symbolic distinctions drawn along lines of race, gender,
sexuality or social class are often studied because they lead
to social exclusion for those in marginalized groups, and
these distinctions form the basis for social inequality
119

As Edgell and her colleagues discovered, American’s increasing acceptance of pluralism
had not expanded to include non-believers. Atheists were a notable exception to the rule
of increasing social tolerance especially since the 1970s. Moreover, the authors observed
54
that, “It seems most Americans believe that diversity is fine, as long as every one shares
a common ‘core’ of values that make them trustworthy—and in America, that ‘core’ has
historically been religious”.
120
Despite the strident battles over gay marriage in the states,
respondents to the UM survey told pollsters that atheism was still more problematic than
the specter of gay marriage.
121

In this chapter I argued that even in an era where religious diversity is
increasingly the norm, atheism remains a source of suspicion and mistrust for many
Americans. As a result, atheists remain less tolerated than most other religions. I used
the notion of the American Civil religion to demonstrate how national solidarity centers
around a unifying principle of God and country which conflates patriotism with
religiosity. The celebration of religious diversity that was so apparent after 9/11
demonstrated how much Americans believe themselves to have in common, as long as
one believes in God. A belief in God remains still synonymous with morality and the
willingness to play by the same rules as everyone else; atheists remain on the outside.
122

These attitudes raise the question of whether an acceptance of this Civil Religion
is truly voluntary. If is not voluntary, then it becomes a sort of unofficial state religion.
Two Supreme Court decisions in the 21
st
century broach the issue: do all Americans have
the same rights under the First Amendment which one would expect given past
precedent? Unfortunately, the 21
st
century Supreme Court has departed from the
precedents established in the 20
th
century. From post-World War II until the 2000s, the
Supreme Court had gradually overturned two centuries of laws that targeted atheists
while placing their religious views on the same plane as others. However, in the two
cases to be explored, Boy Scouts of America v. Dale, and Newdow v. Elk Grove Unified
55
School District, the Supreme Court overlooked stare decisis. As a consequence, the
newer rulings permitted discriminatory practices to continue and essentially endorsed a
state-sponsored religion.

56

Chapter Two Endnotes

1
For more on the Civil Religion see, Jon Pahl. “Nationalist Religious Broadcasting: The Case of the 2004
US Presidential Nominating Conventions”. Political Theology 8 (2007): 35.

2
Of course, there are varying definitions of pluralism. For the purposes of this study, the broad definition
of religious pluralism from Harvard scholar Diana L. Eck will be utilized: “…pluralism is not just
tolerance, but the active seeking of understanding across lines of difference. … pluralism is based on
dialogue. The language of pluralism is that of dialogue and encounter, give and take, criticism and self-
criticism. Dialogue means both speaking and listening, and that process reveals both common
understandings and real differences. Dialogue does not mean everyone at the “table” will agree with one
another. Pluralism involves the commitment to being at the table -- with one’s commitments.” Eck
includes the “ardent secularist” in her idea of pluralism. See Diana L. Eck. “What is Pluralism?” 23
October 2008 http://www.pluralism.org/pluralism/what_is_pluralism.php. Her definition coincides with
Dean L. Overman’s definition of “authentic pluralism”: “Any discussion among persons of different faiths
should be conducted on the basis of mutual respect. This respect can be expressed in dialogue, which is to
be understood as an attempt on everyone's part to gain a better understanding of the other. Such a dialogue
cannot be conducted on the presupposition that each faith is saying the same thing. Dialogue implies
respect and intellectual honesty; it does not presuppose agreement.” Dean L. Overman. “The World After
9/11: The Challenge of Religious Pluralism”. Perspectives . 11 January 2008
http://www.rca.org/NETCOMMUNITY/Page.aspx?pid=3205&srcid=3511.

3
Diana L. Eck. “What is Pluralism?”

4
See generally, Jon Butler, Grant Wacker and Randall Balmer. Religion in American Life: A Short
History. New York: Oxford University Press, 2000.

5
Jon Butler, Grant Wacker and Randall Balmer, Religion in American Life: A Short History: 51-73.

6
Russell Shorto. The Island at the Center of the World. New York: Doubleday, 2004. Jon Butler, Grant
Wacker and Randall Balmer. Religion in American Life: A Short History: 51-73.

7
Jon Butler, Grant Wacker and Randall Balmer. Religion in American Life: A Short History. 51-73.

8
Bernard Schwartz. The Bill of Rights: A Documentary History. 2 vols. New York, Chelsea House
Publishers: 1971. Schwartz provides an authoritative examination of establishments and impediments
placed on minority religionists up to and including 1787. Also, Thomas J. Curry. The First Freedoms:
Church and State in America to the Passage of the First Amendment. New York: Oxford University Press:
1986.

9
In the 17th and 18th centuries nearly all the colonies of the United States were Protestant, with the
exception of Maryland (which was Catholic before the British takeover), and Manhattan Island before the
British takeover.

The Dutch practiced religious toleration in the colony. Moreover, according to historian
Russell Shorto, during the wars between the Dutch and the English in the late 17
th
century, the island
shifted back and forth between the two nations about three times. In the interim, the residents of that
colony negotiated continuous pacts of religious toleration with the conquering side. Shorto is one author
who views Manhattan as the true model of an American multicultural society of the early 21
st
century.
Russell Shorto. The Island at the Center of the World. Even allegedly tolerant Rhode Island did not grant
full citizenship to Jews, deeming them “outsiders”. Jews were not granted political emancipation until
1842. Morton Borden. Jews, Turks and Infidels. Chapel Hill: University of North Carolina Press, 1984.
13. Jews were not granted political emancipation until 1842.

57

As noted, few of the nascent colonies offered religious freedom to the adherents of minority religions.
Exclusionary practices continued into the 18th century. As late as 1776, the dominance of Protestant
Christianity in 18th century America was apparent: a number of the state constitutions limited civil rights
only to Christians or Protestants. Bernard Schwartz, The Bill of Rights: A Documentary History, Parts 1
and 2. As examples, the New Jersey Constitution of 1776 only guaranteed “equal rights” to Protestants.
South Carolina’s Bill of Rights of 1778 also only granted equal rights to Protestants, and established
“Protestantism” as the state religion.
Another thorough treatment of this subject can be found in Thomas J. Curry, The First Freedoms: Church
and State in America to the Passage of the First Amendment. A summary of the provisions in the
constitutions is provided in: John K. Wilson. “Religion Under the State Constitutions: 1776-1800”.
Journal of Church and State 32 (1990): 773. In addition Jon Butler et al provide a narrative as to how
these establishments were managed under British rule, in Jon Butler, Grant Wacker and Randall Balmer.
Religion in American Life: A Short History: 51-73. Roger Finke provides a brief but readable overview
of the kinds of religious regulation that existed in the colonies and in the early states, as well as the kinds of
impediments face by minority religionists in early America. Roger Finke, “Religious Deregulation:
Origins and Consequences” Journal of Church and State 32 (1990): 609-626.

10
John K. Wilson. “Religion Under the State Constitutions: 1776-1800”: 773.

11
John K. Wilson. “Religion Under the State Constitutions: 1776-1800”: 754.

12
People v. Ruggles 8 Johns. R. 290 N.Y. (1811).

13
People v. Ruggles 8 Johns. R. 290 N.Y. (1811).

14
People v. Ruggles 8 Johns. R. 290 N.Y. (1811).

15
Holy Trinity Church v. U.S. 143 U.S. 457, 12 S Ct. 511 (1892). This assertion is repeated throughout the
decision. In rendering this holding, the court studied all state constitutions and various declarations during
the history of the nation.

16
For a discussion of the power of Protestant groups to mold the nation into their vision of what Christian
state and society should be in the late 19
th
century, see Robert T. Handy. Undermined Establishment:
Church-State Relations in America 1880-1920. Princeton: Princeton University Press, 1991. 7.

17
Stephen R. Warner. "Works in Progress toward a New Paradigm for the Sociological Study of Religion
in the United States”: 1046. Walter J. Walsh also speaks of an “Anglocentric Protestant minority”
existing in early 19
th
Century America. Walter J. Walsh. “The First Free Exercise Case”. Washington Law
Review 73 (2004): 3.

18
Diana L. Eck. “Prospects for Pluralism: Voice and Vision in the Study of Religion”: 754.

19
Diana L. Eck. “Prospects for Pluralism: Voice and Vision in the Study of Religion”: 754.

20
Will Herberg. Protestant, Catholic, Jew: an essay in American religious sociology. Garden City, NY:
Doubleday, 1955.

21
Martin E. Marty. Righteous Empire: The Protestant Experience in America. New York: The Dial
Press, 1970 253.
22
Diana L. Eck. “Prospects for Pluralism: Voice and Vision in the Study of Religion”: 754. Eck hints that
the wave of immigration into the U.S. since 1965 has been largely from Asia. For an overview and critique
of the available research on the religious lives of post-1965 immigrants, see: Wendy Cadge and Elaine

58

Howard Ecklund. “Immigration and Religion” Annual Review of Sociology 33 (2007): 359-379. Also,
Janelle S. Wong discusses the ways that new Asian and Latino immigrants are incorporated into their
communities. Janelle S. Wong. Democracies Promise: Immigrants and American Civic Institutions. Ann
Arbor: The University of Michigan Press, 2006.

23
Martin E. Marty, Righteous Empire: The Protestant Experience in America. 253.

24
Even after 9/11, while Muslims are considered an “external threat”, as compared to the “internal threat”
posed by atheism, more Americans view Muslims as aligned with American values than atheists. Penny
Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American Society”: 217-
219.

25
For example, the proceedings of both the Democratic and Republican Nominating Conventions in 2004
featured benedictions by representatives of the Muslim and Jewish faiths. John Pahl. “Nationalist
Religious Broadcasting: The Case of the 2004 US Presidential Nominating Conventions”: 41.

26
While many Americans do have difficulty trusting Muslims after 9/11, the 2006 University of Minnesota
study shows that they are still more trusted as fellow citizens than atheists. Penny Edgell, Douglas
Hartmann and Joseph Gerteis. “Atheists as Other: Moral Boundaries and Cultural Membership in
American Society”: 211-234.

27
Louise Cainkar, “The Impact of September 11 Attacks and Their Aftermath on Arab and Muslim
Communities in the United States”. GSC Quarterly 13 (Summer/Fall 2004). 24 October 2008
http://programs.ssrc.org/gsc/publications/quarterly13/cainkar.pdf. James L. Gibson. “Intolerance and
Political Repression in the United States: A Half Century after McCarthyism”. American Journal of
Political Science 52 (2008): 96-108.

28
Steven R. Loomis and Jake Rodriguez. “The Incontrovertible Ontological Fact of God: Newdow, State
Education and the Status of God”. Journal of Church and State 46 (2004): 115.

29
Steven R. Loomis and Jake Rodriguez. “The Incontrovertible Ontological Fact of God: Newdow, State
Education and the Status of God”: 121. Although God was not mentioned in the Constitution, the framers
still fully believe that the inalienable rights of men were bestowed upon humans from God.

30
Steven R. Loomis and Jake Rodriguez. “The Incontrovertible Ontological Fact of God: Newdow, State
Education and the Status of God”: 122.

31
Many credit scholar Robert N. Bellah with bringing a term used by Jacques-Jean Rousseau into vogue in
the 1960s. Robert N. Bellah. “Civil Religion in America” Daedalus 96 (1967): 1-21. As noted in Chapter
One, the term is also used by Edgell et al as a framework for explaining why atheists remain America’s
most mistrusted minority. . Penny Edgell, Douglas Hartmann and Joseph Gerteis. “Atheists as Other:
Moral Boundaries and Cultural Membership in American Society”: 211-234. Noted political scientist
Samuel L. Huntington makes mention of the term in Samuel L. Huntington. Who Are We? The
Challenges to America’s National Identity. New York: Simon & Schuster, 2004.

32
Joan DelFattore. “What is Past is Prelude: Newdow and the Evolution of Thought on Religious
Affirmations in Public Schools”. Symposium: Law and Religion: Part Two of Two. University of
Pennsylvania Journal of Constitutional Law 8 (2006): 647.
33
Samuel L. Huntington. Who Are We? The Challenges to America’s National Identity. New York:
Simon & Schuster, 2004. 103.

59

34
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 217-219.

35
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 217-219.

36
William Warren Sweet. American Culture and Religion: Six essays. New York: Cooper Square
Publishers, Inc, 1972. 1.

37
William Warren Sweet. American Culture and Religion: Six essays. 106.

38
Samuel L. Huntington. Who Are We? The Challenges to America’s National Identity: 104.

39
Samuel L. Huntington. Who Are We? The Challenges to America’s National Identity: 104.

Others have described this phenomenon as an American self-image as a “redeemer nation” with a
“providential mission”, which became especially apparent in President George W. Bush’s war talk
following 9/11. See Barry Stevenson, “Swaggering Savagery and the New Frontier”. Journal of Religion
and Pop Culture 16. Summer 2007. 19 February 2008 http://www.usask.ca/relst/jrpc/art16-swaggering-
print.html#_ednref75.

40
William Warren Sweet, American Culture and Religion: Six essays: 104-105.

41
William Warren Sweet, American Culture and Religion: Six essays : 103.

42
Andrea Billips. “Students Pray at School Events”. Washington Times, 8 October 2001: 13. Barry Lynn
is an ordained Methodist Minister.

43
A small study of Kentucky prisons shows that unbelievers tend to be convicted of so-called victimless
crimes while prisoners who both exhibited religious behaviors but who did not say that religion influenced
their behaviors were the most likely to be imprisoned for violent crimes. These results might question the
common wisdom that religion, religious beliefs and behavior necessarily reduce crime. Anita Fernander,
John F. Wilson and Michele Staton and Carl Leukerfeld, “Exploring Type of Crime Hypothesis, Religiosity
and Spirituality in Adult Male Prison Population” International Journal of Offender Therapy and
Comparative Criminology 49 (2005): 682-695.

44
Rob Sherman was a reporter who has claimed to have had this conversation with George H.W. Bush on
August 27, 1987. Rob Sherman. “Liberal News and Commentary”. Rob Sherman Online. 4 February
2004. 24 October 2008 http://www.robsherman.com/information/liberalnews/2004/0204.htm.

45
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 211-234.

46
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 211.

47
Phillip E. Hammond, With Liberty for All: Freedom of Religion in the United States. Louisville:
Westminster John Knox Press, 1998. xiii.

48
Richard Norman, “The Varieties of Non-Religious Experience” Ratio 19 (2006): 475.

49
Richard Norman, “The Varieties of Non-Religious Experience” Ratio 19 (2006): 475.

60

50
George A. Ricker, Godless in America: conversations with an atheist. Lincoln, NE: iUniverse, 2006.
xii.

51
David Brion Davis. “Some Themes of Countersubversion: An Analysis of Anti-Masonic, Anti-Catholic
and Anti-Mormon Literature” Mississippi Valley Historical Review 47 (1960): 204.

52
It should be noted, however, that Locke was arguing for the right for minority sects and Jews to practice
their religion without government-imposed restraints. This was still in the context of the established
Anglican church. He did not arguing for actual equality among sects. David A.J. Richards, Toleration and
the Constitution. New York: Oxford University Press, 1986. 111.

53
Locke also precluded Catholics from toleration because of their allegiance to a foreign leader, The Pope.

54
David J. Lorenzo. “Tradition and Prudence in Locke’s Exceptions to Toleration” American Journal of
Political Science 47 (2003): 256.

55
John Locke, A Letter Concerning Toleration. Buffalo: Prometheus Books, 1990. 64.

56
The lack of confidence in the moral character of even god-fearing humans was so ingrained that it
became institutionalized into the U.S. system of checks and balances by the nation’s founders. See Richard
Vetterli and Gary Bryner, In Search of the Republic: Public Virtue and the Roots of American
Government. Totowa, NJ: Rowman & Littlefield, 1987. 2, 112.

57
J.A. Leo Lemay, Benjamin Franklin: Writings. New York: Library of America Publishers, 1987. 983.

58
People v. Ruggles 8 Johns. R. 290 N.Y. (1811). This was the previously-discussed case concerning a
man convicted of blasphemy by the New York courts.

59
Morton Borden, Jews, Turks and Infidels: 101.

60
Thomas Jefferson, letter to John Adams of 8/15/1820 in Merrill D. Peterson, The Portable Thomas
Jefferson. New York: Penguin Books, 1975. 573.

61
Robert Bellah, The Broken Covenant: American Civil Religion in Time of Trial. New York: The
Seabury Press, 1975. 21.

62
An overview of the state laws barring atheists from performing these functions can be found in Charles
R. Rushing, “The First Amendment and Civil Disabilities Imposed Upon Atheists”: 137-154, and Paul W.
Kaufman. “Disbelieving Nonbelievers: Atheism, Competence and Credibility in the Turn of the Century
American Courtroom” Yale Journal of Law and the Humanities 15 (2003): 395-434.

63
Paul W. Kaufman. “Disbelieving Nonbelievers: Atheism, Competence and Credibility in the Turn of the
Century American Courtroom”: 395-434.

64
For an illustrative snapshot of the laws that barred atheists’ deathbed wishes in the early 20th century,
see, “Moot Court: Commonwealth v. Stokes”. Dickinson Law Review 19 (1914): 217-222. The articled
discusses the case of a Pennsylvania atheist whose deathbed wishes were not honored because he was an
atheist and therefore “did not believe in punishment for falsehood” (217). The commentary, which has no
byline, writes approvingly of a court decision that denied a dying man’s last wishes. It also cites case law
from New Jersey, Mississippi, Oregon, and Iowa that impeded atheists from having their deathbed wishes
granted. Surprisingly, the author takes it as fact that because the man was an atheist, he had a “bad

61

reputation” and that he lacked any credibility (p. 222) even though no evidence was offered in that the
individual actually had a reputation of unreliability, aside from his atheism.

65
Torcaso v. Watkins 367 U.S. 488 (1961) outlawed a Maryland constitutional provision that barred
atheists from holding public office.

66
Edd Doerr and Albert J. Menendez, Religious Liberty and State Constitutions. Buffalo: Prometheus
Books, 1993.

67
Leigh S. Shaffer and Steve Verrastro. “The Quasi-Theory of Godlessness in America: Implications of
Opposition to Evolution for Sociological Theory” Sociological Viewpoints 21 (2005): 76.

68
Quoted in Richard Hofstadter. Anti-Intellectualism in American Life. New York: Vintage Books, 1962.
129.

69
Richard Hofstadter. Anti-Intellectualism in American Life. 129.

70
See Leigh S. Shaffer and Steve Verrastro “The Quasi-Theory of Godlessness in America: Implications
of Opposition to Evolution for Sociological Theory”: 73-85. The article details how evangelical
opposition to the teaching of evolution in public schools arose in response to the changes in the hegemonic
dominance of Protestants beginning in the early 20th century. Their research shows that conservative
evangelicals blamed the teaching of evolution as a cause of rising social problems at that time.
Evangelicals viewed evolution is a godless theory and claimed that it encouraged children to disregard
God, thereby promoting social deviance.

71
Frances A. Patterson, Democracy and Intolerance: Christian School Curricula, School Choice, and
Public Policy. Bloomington, IN: Chi Delta Kappa Educational Foundation, 2004. 4, 35-36.

72
The titles of two of Michael Savage’s best-selling books are illustrative: Michael Savage, Liberalism is a
Mental Disorder: Savage Solutions. Nashville: Nelson Current: 2005. 150. Michael Savage, The Enemy
Within: Saving America from the liberal assault on our schools, faith and military. Nashville: WND
Books, 2003.

73
Radio and television talk show host Laura Ingraham often intones against the so-called liberal elite in
many of her works. One example is her book: Laura Ingraham. Shut Up and Sing: How Elites from
Hollywood, Politics and The UN Are Subverting America. New York: Regnery Publishing, 2005.
74
Bill O’Reilly uses this term repeatedly throughout Culture Warrior. New York, Broadway Books: 2006.
On his show, he has also been quoted as blaming secular-progressives for an increase in out of wedlock
births. Bill O’Reilly. “Victory and Defeat for Secularists”. Fox News. 6 February 2004. 24 October
2008 http://www.foxnews.com/story/0,2933,110644,00.html.

75
For instance, in requiring that creationism be taught alongside evolutionary theory in Louisiana’s public
schools, the Louisiana legislature argued that the reason for the law was because “secular humanism” was
being taught in public schools, and the law would serve as a remedy. Louisiana’s law was struck down in
the Supreme Court. Edwards v. Aguillard, 482 U.S. 578 (1987).

76
Michael Savage, Liberalism is a Mental Disorder: Savage Solutions: 150. Michael Savage, The Enemy
Within: Saving America from the liberal assault on our schools, faith and military: 41.
77
Michael Shermer and Dennis McFarland, The Science of Good and Evil: Why People Cheat, Gossip,
Share, Care and Follow the Golden Rule. New York: Macmillan, 2004. 149.

62

78
After 9/11 television evangelical Jerry Falwell blamed a long list of “liberal” groups for the attacks on
9/11, saying, “…the ACLU, People For the American Way -- all of them who have tried to secularize
America -- I point the finger in their face and say "you helped this happen.” Douglas Kellner, “September
11, Spectacles of Terror, and Media Manipulation: A Critique of Jihadist and Bush Media Politics” 2.1
Logos (Winter 2003): 94. Kellner also cites equally inflammatory statements against allegedly
secularizing liberals by Ann Coulter, 102.

79
Michael Savage is conservative, popular radio talk show host and best-selling author who blames liberals
(as a co-conspirator with atheists) for the decline of American faith. According to Savage, the two groups
work hand in hand with the American Civil Liberties Union (ACLU) to strip America of any outward sign
of religiosity. Savage tells his readers that “the ACLU, among all internal enemies, “has done the greatest
damage to our nation. As far as I’m concerned, they’re the KKK on the left”. Michael Savage, Liberalism
is a Mental Disorder: Savage Solutions: 150. Michael Savage, The Enemy Within: Saving America from
the liberal assault on our schools, faith and military: 41 Right wing commentator Ann Coulter also tells
her readers that persecution of Christians is “rampant”. Ann Coulter, How to Talk to a Liberal (if you
must): The World According to Ann Coulter. New York: Crown Forum, 2004. 157.

80
Bill O’Reilly, “Victory and Defeat for Secularists”. Fox News. Online. Internet. 2/6/04. Available
1/19/08 http://www.foxnews.com/story/0,2933,110644,00.html. According to O’Reilly, secularists are
forcing upon Americans a society where “anything goes” and “without discipline or standards…”

81
Bill O’Reilly, “Victory and Defeat for Secularists”.

82
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 231.

83
For example, see, Linda Kintz and Julia Lesage, eds., Media, Culture and The Religious Right.
Minneapolis: University of Minnesota Press, 1998.

84
The Pew Research Center for the People and the Press, “Religion and Politics: Contention and
Consensus. The Pew Research Center for the People and the Press. 24 July 2003. 6 May 2008
http://pewforum.org/publications/surveys/religion-politics.pdf.

85
Samuel A. Stouffer. Communism, Conformity and Civil Liberties: A Cross-section of the Nation
Speaks Its Mind. Gloucester, MA: Doubleday & Company, Inc., 1955.

86
Samuel A. Stouffer. Communism, Conformity and Civil Liberties: A Cross-section of the Nation
Speaks Its Mind. 166-167.

87
Eighty-four per cent stated that they were opposed to having an atheist teach at their local college of
university. Samuel A. Stouffer. Communism, Conformity and Civil Liberties: A Cross-section of the
Nation Speaks Its Mind. 32-33.

88
James L. Gibson. “Intolerance and Political Repression in the United States: A Half Century after
McCarthyism”. American Journal of Political Science 52 (2008) p. 101.

89
Barry A. Kosmin and Seymour P. Lachman. One Nation Under God: Religion in Contemporary
American Society. New York: Harmony Books, 1993: 290.
90
Barry A. Kosmin and Seymour P. Lachman. One Nation Under God: Religion in Contemporary
American Society: 290.

63

91
James L. Gibson. “Intolerance and Political Repression in the United States: A Half Century after
McCarthyism”: 104.

92
Frank Newport, “Democrats View Religious Groups Less Positively Than Republicans”. Gallup. 7
September 2006. 11 May 2008 http://www.gallup.com/poll/24385/Democrats-View-Religious-Groups-
Less-Positively-Than-Republicans.aspx#2.

93
James L. Gibson. “Intolerance and Political Repression in the United States: A Half Century after
McCarthyism”: 104.

94
The Pew Research Center for the People and the Press. “Religion and Politics: Contention and
Consensus”.

95
“Baylor Religion Survey 2005” The Association of Religion Data Archives. 28 September 2008
http://www.thearda.com/Archive/Files/Codebooks/BRS2005_CB.asp.

96
Baylor Religion Survey 2005” The Association of Religion Data Archives. 1 January 2008
http://www.thearda.com/Archive/Files/Codebooks/BRS2005_CB.asp.

97
“Baylor Religion Survey 2005” The Association of Religion Data Archives. 1 January 2008
http://www.thearda.com/Archive/Files/Codebooks/BRS2005_CB.asp.

98
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 216. Emphasis added.

99
James L. Gibson. “Intolerance and Political Repression in the United States: A Half Century after
McCarthyism”: 101.

100
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 218.

101
Penny Edgell et al, “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 218.

102
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 218-219.

103
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 227.

104
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 228.

105
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 227-229.

106
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 218.

107
Michael Newdow. “Why I Did It”. Free Inquiry 23 (2002/03): 16.

64

108
Penny Edgell et al. “Atheists as ‘Other’: Moral boundaries and cultural membership in American
Society”: 215.

109
Edgell and her colleagues demonstrate that on page 215 of her article, where they show that the
percentage of persons saying they would vote for an atheist for President has increased from about 19% in
1958 to 49% on the 1999 Gallup study.

110
Jeffrey M. Jones. Some Americans Reluctant to Vote for Mormon, 72-Year-Old Presidential
Candidates”. Gallup. 20 February 2007. 10 May 2008 http://www.gallup.com/poll/26611/Some-
Americans-Reluctant-Vote_Mormon-72YearOld-Presidential-Candidates.aspx.

111
Isaac Kramnick and R. Lawrence Moore. The Godless Constitution : The Case Against Religious
Correctness. 56.

112
Will Herberg. Protestant - Catholic - Jew: An Essay in American Religious Sociology. 65.

113
Frank Newport. “Americans Today Much More Accepting of a Woman, Black, Catholic, or Jew As
President”. Gallup. 29 March 1999. 11 May 2008 http://www.gallup.com/poll/3979/Americans-Today-
Much-More-Accepting-Woman-Black-Catholic.aspx.

114
As my dissertation is being finalized, the President-Elect is a man of African and American heritage,
Barack Obama.

115
Frank Newport. “Americans Today Much More Accepting of a Woman, Black, Catholic, or Jew As
President”.

116
Frank Newport. “Americans Today Much More Accepting of a Woman, Black, Catholic, or Jew As
President”.

117
A plurality of respondents in a 2002 Pew Forum survey stated that an individual could be good and
moral without a belief in God. Pew Research Center. Religion and Public Life Survey, 2002. 28
September 2008 http://www.thearda.com/Archive/Files/Codebooks/RELPUB2_CB.asp#V57.

118
72% of the respondents in this poll indicated that their President should have strong religious beliefs.
The Pew Forum on Religion and Public Life. Religion and Public Life: A Faith-based Partisan Divide.
Washington, D.C.: The Pew Forum on Religion and Public Life, 2005. 9.

119
Penny Edgell et al. “Atheist as Other: Moral Boundaries and Cultural Membership in American
Society”: 211.

120
Peggy Edgell. “Atheists identified as America’s most distrusted minority, according to new U of M
study”. University of Minnesota. 28 March 2006. 2 November 2006 http://www.ur.umn.edu/FMPro?-
db=releases&-lay=web&-format=umnnewsreleases/releasesdetail.html&ID=2816&-Find.

121
Penny Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American
Society”: 218, 230.

122
Edgell seems to infer that the rejection of atheists may increase as religious diversity broadens, however,
survey data does not support this idea. Perhaps what is becoming more salient to scholars like Edgell is
how marginalized atheists have been, and have always been, as this chapter attempted to illustrate. Penny
Edgell et al. “Atheists as Other: Moral Boundaries and Cultural Membership in American Society”: 214.

66
Chapter 3:
The Boy Scouts and Atheist Exclusion

Context
The preceding chapter demonstrated that Americans view atheists as quite alien
from themselves. Nearly half the population perceives atheists as out of alignment with
their personal vision of American society.
1
Only 34% of Americans hold a favorable
opinion of atheists.
2
While that opinion is less dogmatic than it was in the past, skeptics
are still viewed less favorably than homosexuals and Muslims, despite the events of 9/11
and the public political battles over gay marriage in the 21
st
century. I have attempted to
link this prevailing prejudice against atheists to their perceived rejection of the American
“Civil Religion”.
3
As I have already noted, it appears that full approval by one’s fellow
citizens is conditioned upon an individual’s belief in God all while waving the flag and
having no reservations about singing “God Bless America”.
Even though Americans have told pollsters that the good works done in this life
should grant an individual entry to heaven
4
, The Boy Scouts of America (BSA) disagrees
so fervently that it has successfully fought and won several court cases permitting it to
continue the practice of prohibiting atheists from joining the organization by claiming a
First Amendment right of private association to select its own membership. This is
despite the fact that the organization receives several public benefits that will be
discussed later in the chapter, benefits that might require the BSA to conform to federal
and state anti-discrimination policies.
5

For the BSA, its disaffection with atheists has resulted in an outright exclusion of
atheist and agnostic children from the organization. Even boys with years of exceptional
67
records as members have been barred after revealing their atheism. This practice was
previously upheld by several state and federal courts prior to the Supreme Court decision
in 2000 in Boy Scouts of America v. Dale.
6
The Supreme Court ruling is binding on all
courts and establishes a national doctrine that declared this exclusion permissible. For
the young boy who has professed his atheism
7
, the pre-conceived notions about non-
believers discussed in Chapter Two affect him in some adverse ways, including rejection
by a boys’ organization that claimed over 4.6 million members and program participants
in 2006.
8

BSA Background
Originally a British organization, the BSA was established to test the principles
from a manual on wilderness survival written by military veteran Robert Baden-Powell.
Following the publication of his Scouting for Boys
9
, Baden-Powell brought 22 boys to a
camp off the coast of England to test the ideas in his book BSA lore has it that the
camping trip was considered successful and became known as the first Scouting
experience.
10

The Boy Scouts of America was first incorporated on February 8, 1910 and
subsequently issued a Federal Charter by Congress in 1916 as a Patriotic and National
Organization.
11
Its original purpose was, “to provide an educational program for boys
and young adults to build character, to train in the responsibilities of participating
citizenship, and to develop personal fitness”.
12
The Federal Charter states that the
purpose of the Boy Scouts is to
promote…the ability of boys to do things for themselves
and others, to train them in scoutcraft [sic], and to teach
them patriotism, courage, self-reliance, and kindred virtues,
68
using the methods that were in common use by boy scouts
on June 15, 1916.
13

The local activities of the BSA are carried out through its own chartered
community-based organizations. The BSA issues two kinds of charters: one to the BSA
local councils, and another to community groups that host their own scouting program.
14

One requirement of chartered organizations is that their objectives be “compatible with
those of the BSA”.
15
Chartered groups owned and operated about 124,000 scouting units
in 2006.
16
It is revealing that chartering groups include many church-based
organizations, including the Church of Latter Day Saints, the Religious Society of
Friends (Quakers), Catholic organizations and Jewish Synagogues and Centers.
17
In
2006, The BSA did not list any public schools as chartered organizations, only “Christian
Schools”, “Home School Associations”, “Jewish Day Schools” and others.
18
The Church
of Latter Day Saints formed the first Scouting Council is the largest single Scout
sponsor.
19

Despite the BSA’s failure to mention the role of public schools in their materials,
according to court documents in Dale, about one-fifth of the chartering organizations in
New Jersey were public schools when the case was heard.
20
Jay Mechling’s 2006 study
of the BSA, On My Honor: Boy Scouts and the Making of American Youth asserts that
public schools actually sponsor the largest number of Scouts.
21
The link between the
BSA and public schools was furthered through the No Child Left Behind Act (NCLB),
which mandates that public schools must permit the BSA to recruit members on campus
or lose federal funding
22
, even when opposed by local anti-discrimination mandates.
23

69
The BSA states that its mission “is to prepare young people to make ethical and
moral choices over their lifetimes by instilling in them the values of the Scout Oath and
law.”
24
Scouting philosophy underscores the importance of the worship of God for its
members: God-belief is an absolute requirement. In accordance with this doctrine, to
become full members of the BSA, boys must attest to a belief in God by affirming the
Scout Oath:
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
25

While there was no formal declaration that excluded atheists until after the Dale
decision in 2000, the BSA’s stated policy is that they are prohibited from joining. In
addition, religious emblems are available to boys who practice non-theistic religions that
do not believe in a Judeo-Christian God, such as Buddhism.
26
Unitarian Universalist
boys may become Scouts, although they cannot receive the religious emblem, even
though that religion is creedless and does not mandate a belief in God.
27

The Boy Scouts of America’s Chaplain’s Manual makes it clear that only boys
who recognize an obligation to God and who belong to a home or organization that gives
“definite attention to” religious life can be certified as members.
28
Following a public
backlash against the BSA over the Supreme Court decision Boy Scouts of America v.
Dale
29
, the BSA leadership reaffirmed the controversial policies which exclude atheists,
agnostics and homosexuals from membership. The BSA reasoned that allowing
membership to atheists and agnostics would violate the “traditional values and standards
70
of leadership of the BSA, and that duty to God was “not a mere ideal…it is an
obligation”.
30
The BSA expressed that there was no need to change its membership
requirements, because, “the values in question ha[ve] defined good character throughout
BSA’s 92-year history.
31

Nevertheless, the Scouts’ emphasis on religion and God-belief has been
internally inconsistent over the years: sometimes the rule was applied, and sometimes
not, as some of the cases to be discussed later in this chapter will show. The BSA that
excluded atheists and homosexuals began to take shape during the Cold War. For
example, the Federal Charter of the BSA makes no mention of God. According to Jay
Mechling, prior to the 1950s, the BSA did not emphasize religion quite as much as it
presently does. During the Cold War, there was a greater emphasis on the importance of
religion in American public life that the BSA adapted to.
32
During this “golden age”
33
of
Scouting, the BSA began to stress the worship of the civil religion to its members. By
1959, the Boy Scout Handbook began to “conflate duty to God and Country as a single
duty.”
34
Mechling observes that the organization is controlled by religious conservatives
who were socialized as boys into the BSA in the 1950s.
35

Why Is this Important?
Many boys perceive membership in the BSA to be important because many men
speak of participation in the Boy Scouts as an honored distinction. In 2005,
Congressman Jack Kingston of Georgia relayed a common impression of the Boy Scouts
while speaking in support of federal funding for the Scout Jamboree before Congress:
When we look at the name Boy Scout, to call somebody a
Boy Scout in society today, it is a term that one would say
this guy is squeaky clean. This is a good kid. This is a
71
hard worker. This is somebody who likes his family.
Indeed, if we step back and see what the Boy Scout
organization is about, there are strong things of God,
family, and country…
36

The BSA’s own literature bolsters that impression, boasting that Americans think of the
BSA as “American as baseball, hotdogs or apple pie.”
37

Exclusion from the Boy Scouts may place boys at a disadvantage relative to their
peers who can join. Membership in the Boy Scouts is perceived as conferring “a sense
of normalcy”
38
for boys, especially boys with troubled backgrounds or marginalized
identities, such as disabled children.
39
In addition, association with the Boy Scouts has
been linked to enhanced academic and professional success. The BSA’s own research
shows positive outcomes for Scouts relative to boys who do not participate in Scouting.
One study found that men who were scouts as youth are more likely to have obtained
higher levels of education, have higher incomes and own their own homes, compared to
men who were not Scout as youth.
40
Boys currently participating in Scouting are more
likely to report earning mostly A’s and B’s in school.
41

The BSA touts the professional accomplishments of its past members. In the
110
th
Congress, sixty percent of congressional members claimed past or current
involvement with the BSA as Scouts, Eagle Scouts or as volunteer leaders.
42
The BSA
claims that 11 of the 12 men who walked on the moon were involved in Scouting. It
also states that of the 312 astronauts selected for space exploration since 1959, 180 were
Scouts or were active in Scouting.
43
Prominent religious, political and ethnic leaders
frequently tout the success of the BSA in helping young men to become responsible,
patriotic, ethical and prosperous American citizens.
44

72
It is therefore understandable that to boys for whom Scouting has played a critical
role in their lives, or for whom Scouting represents the possibility of a life enriched with
challenge, adventure, and the opportunity to develop leadership skills, rejection from the
Scouts can be difficult. If one takes Representative Jack Kingston’s comments literally,
being denied membership in the Boy Scouts could be seen as a badge of shame for some
boys, especially those boys who care about their personal standing among their peers
and in their community, or who have already had a close relationship with Scouting. To
demonstrate this, I turn to the histories of some of the boys who were rejected by the
BSA for a non-conformist lifestyle and the court cases that followed. The stories begin
with James Dale, the young homosexual man involved in the seminal Supreme Court
case, Boy Scouts of America v. Dale.
45

The Dale Ruling and James Dale’s Story
Because Boy Scouts of America v. Dale establishes federal precedent on the right
of the BSA to exclude undesirable members, it will be discussed first, although the young
man was excluded on the basis of his homosexuality, and not due to his atheism. James
Dale of New Jersey was a scout for a total of 12 years. He was considered an
“exemplary” scout, had been awarded 25 merit badges, was admitted in the prestigious
Order of the Arrow and had earned the honor of Eagle Scout.
46
In 1989 he applied for
adult membership. He was admitted and was approved as Assistant Scoutmaster of
Troop 73.
47

While Dale was attending Rutgers University, he acknowledged that he was a
homosexual and came out as a gay man. He became active in the university’s gay and
lesbian organization, rising to become co-President of Rutger’s Lesbian/Gay Alliance.
73
When he attended a gay youth workshop in 1990, Dale was interviewed by a local
newspaper and his picture appeared in an article highlighting the workshop. Someone
from the Scouts saw the article and shortly thereafter he received a letter expelling him
from the organization.

When he asked why he was being thrown out, Dale was told that
because he was a homosexual he did not conform to the standards set by the organization,
even though he had previously been viewed as fit to be an Eagle Scout and a member of
Scoutmasters.
48

Dale filed a lawsuit against the BSA and the Monmouth Council of the Boy
Scouts in 1992.
49
The case was first heard in the New Jersey Superior Court, which
decided in favor of the BSA in 1998.
50
The case then went to the Appellate division of
the state court, which overturned the decision and granted judgment in favor of Dale.
Next, the New Jersey Supreme Court (NJSC) affirmed the appellate decision , ruling that
New Jersey’s public accommodation law did not violate the Boy Scout’s First
Amendment right of expressive association because the inclusion of a homosexual
member would not have significantly harmed its ability to carry out its organizational
message. Additionally, the NJSC opined that New Jersey had a compelling interest in
eradicating discrimination from society, and that the slight limitation on the free speech
of the BSA was necessary to accomplish this important goal.
51

The U.S. Supreme Court granted the petitioner certiorari. Dale was decided in
June of 2000 in favor of the BSA. In a 5-4 decision, the Supreme Court ruled that the
Boy Scouts of America may exclude homosexuals because:
…the forced inclusion of an unwanted person in a group
infringes the group’s freedom of expressive association if
74
the presence of that person affects in a significant way the
group’s ability to advocate public or private viewpoints.
52

While this was not the first time that state and federal circuit courts had allowed the BSA
to overtly exclude unconventional boys
53
, it was the first time the Supreme Court had
rendered a decision on BSA practices. The Supreme Court’s (the Court) decision largely
hinged upon a broad interpretation of New Jersey’s anti-discrimination statute by the
NJSC. Contrary to the NJSC ruling, the Supreme Court contradicted it, declaring that, in
fact, the New Jersey statute did interfere with the BSA’s First Amendment right of
expressive association. The Court viewed the BSA’s right to express its mission as
trumping New Jersey’s interest in mitigating discrimination and prejudice.
New Jersey’s anti-discrimination law shields a diverse range of citizens from
inequity. New Jersey law explicitly protects nine distinct traits including sexual
orientation and marital status
54
, even though sexual orientation is not protected under
federal law.
55
First enacted in 1945, the law embraces not only race and religion, but also
sexual orientation and marital status. The right to be free from discrimination is declared
to be a “civil right” under the statute.
56
New Jersey law also defines the term public
accommodation more broadly than under federal law.
57
The New Jersey law includes in
its scope both public and commercial establishments, such as restaurants, parks and
trains, as well as locations that the Supreme Court noted were not typically covered
places, such as summer camps and roof gardens.
58

According to the majority of the Dale Court, the New Jersey Court defined public
accommodation so broadly that it impermissibly hampered the BSA’s ability to define its
own message and determine its own membership. The Court also had problems with the
75
NJSC’s holding that forcing the BSA to admit homosexuals would not severely hinder
the message of the BSA.
59
As a result, the Court objected to the New Jersey’s Supreme
Court’s ruling that the BSA’s expressive message would not be greatly impaired if it was
forced to admit homosexuals. In doing so, the Court overlooked some cogent arguments
from the NJSC opinion that referred to the lack of clarity in the BSA’s documents about
its policy on homosexuals; it was actually questionable whether anti-homosexuality was
at all part of the BSA’s message to its members. In fact, the group’s literature claimed to
value diversity and did not overtly exclude gay men from joining the organization.
60

Justice Stevens wrote a passionate dissent, in which he was joined by Justices
Ginsberg, Souter and Breyer. He commended New Jersey for being on the forefront of
attempts to outlaw discrimination in all its forms, calling the state “courageous”.
61
He
focused quite a bit on the BSA’s lack of a clear position regarding homosexuals. He
contended that nothing in the BSA’s manuals or handbooks either explicitly or implicitly
informed scouts that homosexuals were rejected by the organization. He could not find
anything in its copious statements about moral rectitude or personal integrity that
indicated that homosexuality contradicted those precepts. As far as sexuality is
concerned, the matter was rarely mentioned. He noted that scoutmasters are specifically
instructed to try and avoid, as best as possible, discussions of sex or sexuality with the
boys, which demonstrated a rather agnostic take on the issue of sexuality.
62
Stevens
correctly observed that the BSA’s policy of excluding gays was not clearly stated until
after Mr. Dale had been expelled from the organization.
63

Stevens commented that while the BSA claimed to oppose homosexuals in its
ranks, internal documents demonstrated otherwise. A memo from 1978 stated that while
76
it was BSA policy was to deny homosexuals membership, if a law was passed barring
such discrimination, the BSA would abide by it. However, when such a law was passed
it did not change its policies. Moreover, not only was this exclusion not publicly
expressed in the BSA’s publications but it was not clear to those seeking membership.
64

Stevens was most critical of the Court for overlooking earlier case history that had
determined that fighting discrimination served a greater social purpose than permitting a
private association the expressive right to exclude members on the basis of conceptions
about a class of individuals, especially in an era where there was increasing acceptance of
homosexuals. Stevens also remarked that earlier cases requiring the Rotary Club
65
and
the Jaycees
66
to admit women had determined that these organizations’ expressive rights
of association were not greatly hampered by the requirement that women be allowed to
join. The Rotary Club’s and Jaycee’s policies were struck down because the two
organizations, like the BSA, gave potential members the impression that they were fully
open to members of the segment of the public from which they recruit.
67

Justice Souter signed onto Stevens’ dissent and also wrote his own. He focused
further attention on the BSA’s lack of a clear policy statement regarding homosexuals.
Because such an unequivocal assertion of a policy on homosexuals had not been
publicized by the BSA, he did not view the organization as entitled to the First
Amendment protections to which the Court had declared it was entitled. By providing
the BSA with this simple passage to exclusion, Souter wrote that the ruling made it easier
for private associations to exclude unwanted members by claiming a constitutional right
to expressive association, even where the association is for all intents and purposes, a
77
public one. He also questioned the constitutional propriety of permitting an association
to exclude members when it clearly violates state anti-discrimination statutes.
68

Some legal scholars agreed with the NJSC decision in Dale that it is in the public
interest to override the expressive rights of private associations in favor of a state’s
compelling interest in preventing discrimination, a fact acknowledged by previous
Courts.
69
The court recognized this contention, but set it aside as a lesser constitutional
issue than the BSA’s right to expressive association.
70
As a result, the Court overturned
its own case history which had denied private associations with open membership
standards (such as the BSA) the right to exclude members on the basis of “unsupported
generalizations” about the character of such individuals.
71

Previous Court decisions had upheld broad state anti-discrimination laws such as
the Minnesota law that was used to strike down the United States Jaycees policy of
excluding women from general membership
72
and the California law
73
that was used to
prevent the Rotary Club from using its “freedom of private association” as a reason to
exclude women, observing that would pose only a “slight infringement” on their rights.
74

However, in Dale, the Court reversed that, determining that the BSA was a private
organization that’s right to state its message and select its membership would be impeded
if it were forced to admit homosexuals. As a result, the Court overturned the New Jersey
Supreme Court’s decision, and declared that forcing the BSA to admit homosexuals would
unduly hamper their First Amendment right to expressive association, even though the
BSA had not clearly stated any policy towards homosexuals in its literature.
75

As will be shown, state and Federal Circuit Court decisions had already granted the
BSA leeway to exclude atheists and homosexuals using limited interpretations of state civil
78
rights laws, such as California’s Jesse Unruh Civil Rights Act. While some scholars
indicate that Dale is only applicable to the exclusion of gay men
76
, other actions before and
since appear to indicate that this decision extended to atheists as well. First of all, Dale
cited some of the cases to be mentioned in this chapter, earlier cases which had allowed the
BSA to exclude atheists and declared that the BSA did not qualify as a place of public
accommodation according to California and federal law.
77
Second, scholars consider Dale
to be the law of the land on matters concerning the expressive association rights of private
organizations to discriminate against atheists as well.
78
This is all the more troubling
because it means that the Court has permitted the Boy Scouts to exclude children on the
basis of their religious beliefs, a previously protected category under federal law as well as
case law.
79
It is made more problematic because in general, the courts have taken special
care with children: children are usually protected from a coercive environment as well as
situations with their peers where their beliefs might be put on display and possibly held up
to ridicule or ostracism.
80

The earlier cases and the boys’ stories
As in Dale, the BSA generally prevailed when faced with claims alleging
discrimination against atheist and homosexual boys. The courts have upheld the
organization’s right of private expressive association even in states with strong anti-
discrimination statutes, such as in California, and in claims alleging violations of the
Civil Rights Act of 1964.
81

Despite earlier rulings that allowed claimants to use the Unruh Civil Rights Act to
address claims of discrimination, such as in the case of the Rotary Clubs
82
, the California
Supreme Court reversed itself on this issue in the 1980s. In California, the peculiar
79
wording of the statute has enabled the California courts to reject claims against the Boy
Scouts because the statute seems to be limited only to commercial establishments with
the use of the narrow term of “business establishments”.
83
Since the 1990s this created a
hurdle for litigants attempting to sue the BSA for violating the state’s Jesse Unruh Civil
Right’s Act because the act has been interpreted as covering only commercial
establishments. As the Ninth Circuit ruled in 1998 regarding another case of
exclusionary practices against homosexuals:
Although past Supreme Court decisions have stressed that
the term “business accommodation” must be interpreted
broadly, the term has never been interpreted so expansively
as to include the membership decisions of a charitable,
expressive, and social organization, like the Boy Scouts,
whose formation and activities are unrelated to the
promotion or advancement of the economic or business
interests of its members.
84

Just like James Dale, some of the other boys involved in the lawsuits regarding
the BSA also had a long history with the organization, or at the least, a strong desire to
join, having been tempted by a presentation at school. All were rejected from the
organization because of a refusal to assert a belief in God or because of homosexuality,
with these actions being ultimately upheld by the courts. In some instances, the boy was
rejected after many years with the Scouts because the integrity he was encouraged to
display by the Scouts would not allow him to lie about his true beliefs.
85
Prior to the time
of expulsion, those who were already members had been in good standing as Scouts.
Some, like James Dale, had received high honors from the organization, such as the
designation of Eagle Scout, as well as other awards and merit badges. Prior to the child’s
having professed his atheism, there had been no complaints from den masters and Scout
80
leaders about the children’s personal morality, integrity, or their ability to perform the
leadership functions required by the BSA.
The Randall Case
The first case involved a pair of twins who had had a relationship of several years
with Scouting, and who had been open and honest about their atheism with their den
leader, being allowed to advance for several years before their atheism became an issue.
86

Twins Michael and William Randall were members in Cub Scout dens in both Los
Angeles and Orange counties from the time they were seven until they were about 10
years old. Scouting was significant for the twins. When they moved from Los Angeles
to Orange County, they joined another Cub Scout den in Anaheim Hills. During their
association with the Cub Scouts, the twins received three promotions, advancing from
Tiger Cub, to Bobcat and to Wolf rank while they were in the Los Angeles county den.
87

While there, they were occasionally required to repeat the Cub Scout oath, which
included a statement about God. The twins stated in court that they did not feel
comfortable doing so and that their den leader allowed them to omit the statement.
Once in Anaheim Hills, the twins worked on the requirements for Bear rank,
which also necessitated a statement about a belief in God. The pattern of inconsistent
application of the BSA’s religious policies noted by Mechling appeared here.
88
This was
the first time that their atheism presented any difficulties for the boys. Drawing on their
earlier experience with their den master in Los Angeles County, the twins explained to
their new den leader that they were atheists and that they could not profess the belief in
God required by the Boy Scout Oath. The new den leader told them that a belief in God
was necessary to complete the religion component. After some discussions that included
81
the mother, the boys were told that they could remain in the den, but were told they could
not advance any further until they could assert a belief in God.
89

As they were unwilling to comply with the oath requirement, the boys were
expelled from the Scout troop. Their mother filed a complaint for injunctive relief, citing
a violation of California’s Unruh Civil Rights Act, claiming the children were denied
equal access to the organization because of their religious beliefs and requesting that the
children be allowed to rejoin the Boy Scouts.
90
The mother also asserted that religion
had not been a critical part of their Scouting experience.
91
In 1991, the Randalls secured
a temporary restraining order that prohibited the Orange County Council from refusing
membership or conditioning advancement on, among other things, the use of the word
God” in the oath.
92

The Orange County Council then appealed, contesting the plaintiffs’ argument
that the BSA was the type of business intended to be covered under the Unruh Civil
Rights Act (UCRA). It asked the court to determine whether the UCRA violated its
rights to expressive association. The Orange County Council objected to the mother’s
claim that religion had not played an important role in her sons’ scouting experience,
pointing to various documents from the organization that Ms. Randall would have had
seen. They pointed out that the role of religion and the importance of professing a duty to
God is prominent in much of the BSA literature that their mother would have read, and
that the Cub Scout application repeats the importance of religious duty and the duty owed
to God in Scouting.
93

The California Court of Appeal heard the case and decided that BSA’s practices
did not violate the state’s UCRA because of the narrow interpretation of the statute
82
mentioned earlier. Because the decision focused on the state civil right, it never dealt
with the question of the BSA’s right of expressive association under that law.
94
As a
result the Randall twins were permanently excluded from an organization to which they
had belonged for three years and in which there had previously been no question about
their behavior or moral character.
95

The Welsh Case
96

The Welsh case involved a young boy and his father who were prohibited from
joining on the basis of their atheism, however, this time federal law was used. In 1989,
six-year-old Mark Welsh of Illinois attempted to join the Tiger Cubs. To do so, he had to
have an Adult Partner, so his father Elliot Welsh also applied. Welsh indicated on the
application that they were atheists. As a result, neither was allowed to join.
97
When the
boy was a year older, Mark tried to join the Cub Scouts (which does not require an Adult
partner) and was still denied admission into the Scouting organization because he refused
to repeat the phrase "to do my duty to God and my country" in the Cub Scout Promise.
98

In 1991, the Welshes sued, alleging that the Boy Scouts of America had violated
Title II of the Civil Rights Act of 1964. This federal statue forbids religious
discrimination in places of public accommodation. They contended that the BSA was a
place of public accommodation because it was a place of entertainment as defined under
the law.
99
The Welshes lost the case when the Court of Appeals for the Seventh Circuit
Court rejected the claim because it interpreted the public accommodation rule quite
literally. The court stated that because the Boy Scouts do not operate their clubs with “a
close connection to a specific facility” that it was not a place of public accommodation.
100

The 7
th
Circuit reasoned that because the BSA did not operate from an actual place on a
83
map and because the BSA was not the type of membership organization intended to be
covered by the law, it fell under the private club exemption to Title II.
101
The court’s
logic was not entirely persuasive because many of the locales from where they do operate
are set, public facilities, such as schools and public parks. As I discussed earlier in the
chapter, the single largest chartering organization for the BSA are public schools, a fixed
location.
In closing its arguments, the Appellate Court actually raised the issue of the
Welsh’s alleged rejection of the Civil Religion into its decision. The Court actually
questioned how the Welshes could reject the BSA oath when it was allegedly so similar
to some of the words in the Declaration of Independence. In other words, the court
questioned the litigants’ very patriotism because of their rejection of an oath created by a
private organization. In doing so, the Court gave the erroneous impression that the
Declaration is a statement of law, when it is a set of principles and is not law.
102

Moreover, the court revealed its own prejudices about atheists, seeming to infer that they
were not patriotic enough because a rejection of the Boy Scout oath was somehow a
rejection of the Declaration of Independence.
103

The case of Powell v. Bunn
To illustrate how deeply intertwined the BSA is with public schools, I turn to a
case involving BSA recruitment in public schools. This case concerned an elementary
school boy, Remington Powell of Portland, Oregon.
104
In 1996, when this case
commenced, the Portland Public School District allowed community organizations such
as the BSA to use school facilities during school hours to engage in outreach programs to
potential members. Powell, a first grader at Harvey Scott Elementary School, received a
84
flyer handed to him by his teacher that highlighted the recreational activities of scouting.
The flyer emphasized fun endeavors such as playing sports and camping, reading, “Get in
on the Fun!”. Interested boys were invited to take a flyer home to their parents, which
Powell allegedly did, but nothing else happened for another year.
105

In 1997, the Boy Scouts returned to recruit again during the lunch hour. Another
presentation was given and this time bands were placed on the wrists of interested boys
outside of the lunchroom, but still on school property. When Remington brought the
wristband home to show to his mother, an atheist, she informed him that she researched the
Boy Scouts since the last visit and that she had learned they would not allow him to join
the organization because he was an atheist.
106

Initially, the boy’s mother filed a complaint with the Superintendent of Public
Instruction, noting a violation of Oregon’s statue ORS 327.109. This statute stipulates that
public funding for a school can be withdrawn if a school is involved in religious activity.
107

The Superintendent investigated and found that the school district had not been overly
entangled with religious activity. Powell’s mother then brought the case to a circuit
court, alleging that the school district’s practice of giving the BSA access to its schools to
recruit members violated the Oregon Constitution’s prohibition against an establishment of
religion. Both she and the Boy Scouts requested summary judgment asking that the Court
only review who was entitled to prevail as a matter of the law.
108
As a result, the court
could only rule on the uncontested facts, which were that the school district had not overly
entangled with religion. The lower court had no choice but to rule that the school district
had not violated state law.
109
The results were same with the appellate court, and Powell
appealed to the Oregon Supreme Court.
85
In 2006, the Oregon Supreme Court ruled that it is not discriminatory for a public
school to allow organizations such as the Boy Scouts, despite their policy of excluding
gays and atheists, to recruit students during school hours in a situation where the boys must
be present. The Court circumvented the issue of religion stating that, “As long as the
organization sanitizes its message, removing any mention that not all students can join”
110

the behavior is not discriminatory, and the BSA can recruit in the school. This decision
also seemed to contradict other Supreme Court precedent that had stated that organizations
that recruit as if they are open to all members are subject to public accommodations
rules.
111

Interestingly, the Oregon Supreme Court condoned a practice that public school
officials could allow a representative of the Boy Scouts to speak to students in a school,
giving the appearance of openness to all members, without having to reveal that that in fact
that it is not. It was ironic that an organization that was formed to teach young boys
honesty, integrity and trustworthiness agreed to terms that permit their representatives to
recruit new members in schools without having to tell the boys forthrightly that if they are
atheists and homosexuals, they cannot join. Moreover, in light of the stipulation in No
Child Left Behind that schools must recruit on campus, it remains to be seen if this
decision in the Oregon courts will later be held as precedent for such cases.
The Expelled Eagle Scout
The final example, although it did never became a court case, demonstrates how far
the BSA will go to remove atheists from its ranks, no matter how much that boy had
conformed to the character traits the organization encourages. Darrell Lambert, a 19-year-
86
old Eagle Scout in Washington State, had spent ten years in scouting, during which time he
earned 37 merit badges and was the leader of a Boy Scout troop in his town.
Notably, Lambert was awarded the rank of Eagle Scout after professing his atheism
to the Scout leaders approving his promotion. However, it was not until Lambert got into
an argument with another Scout leader over atheists’ exclusion from the organization that
his beliefs became an issue. It was then that he was told that he had one week to profess a
belief in God, or be expelled. Lambert could not lie and claim a belief he did not hold,
telling a CNN Reporter that if he lied, "I wouldn't be a good Scout then, would I?"
112,113

What is remarkable about Lambert’s expulsion is that prior to his profession of
atheism, Lambert had been described as an exceptional individual embodying all the
traditional values of Boy Scouting. A parent of another Scout told a Seattle reporter,
“Darryl walks the Walk of Christ. Whether he professes it or not, he walks it.”
114
Aside
from earning the merit badges, Lambert also completed 1,000 hours of community
service in his senior year of high school.
115
To achieve the designation of Eagle Scout,
Darrell had to have been an extraordinary Scout, according to the BSA’s own literature.
Only five percent of all Scouts become Eagle Scouts, and it is considered an award of
“special significance”.
116
To obtain this honor, the Scout must be approved by his troop,
and then by the District and National councils.
117
He must uphold the Scout Law, which
means he must embody the traits deemed to be representative of Scouting: “Trustworthy,
Loyal, Helpful, Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave, Clean and
Irreverent”.
118
Moreover, when Lambert professed his atheism to the Scout masters who
awarded him the highly coveted designation of Eagle Scout, he was praised for his
honesty, sending yet another confusing message.
119
However, following his avowal of
87
atheism, he was criticized by a national spokesperson for hypocritically swearing a duty
to God, even though, like the Randall twins, he had shown the required integrity with the
individuals accepting his application and had told them he did not believe in God.
120

Discussion and Critique
As this chapter has shown, several courts have upheld the Boy Scout’s right to
exclude boys on the basis of their religion and sexual orientation. There are a number of
problems with these decisions that overlook some salient facts about the BSA, as well as
the anti-discrimination laws that were bypassed to support the BSA’s First Amendment
rights to exclude these non-conformist boys. To begin with, the question of the BSA’s
private status should have been examined at greater length, given that it is the recipient of
several governmental endorsements.
Privacy and the Federal Charter
What is perhaps most surprising about the results in Dale and the other decisions
supporting its private associational rights is that the BSA is many ways is only a semi-
private organization. The BSA is actually quite intertwined with the Federal government
and has been since 1916 when it was issued a Federal Charter as a Patriotic and National
Organization. As a Chartered organization, the BSA must submit an annual report to
Congress by April 1 of each year.
121
Each year, the BSA delivers a Report to the Nation,
both the President and Congress.
122
The President of the United States is the honorary
President of the organization, and has been since the BSA asked Unitarian President
William Howard Taft to be their first honorary President in 1910.
123
The Boy Scouts are
also supported with contributions from the federal government. For example, the
Department of Defense contributed over seven million dollars to the 2005 Boy Scout
88
Jamboree, held in Virginia.
124
Furthermore, a law passed in Congress in 2005, tellingly
titled the “Save Our Scouts Act of 2005”, orders the Secretary of Defense to continue
funding each future Jamboree at “at least the same level of support” as it did in 2005.
125

The Boy Scouts and the federal government have become further entangled since
Congress voted to mandate that public schools must allow the BSA to recruit on school
campuses, tying the receipt of federal monies under No Child Left Behind to school’s
compliance with this requirement. Under this act, an amendment entitled “Boy Scouts of
America Equal Access Act” requires that schools permit BSA mobilization on campus.
Specifically, the act stipulates that schools cannot receive funds if they “discriminates
against” the Boy Scouts or any group that is affiliated with it. The section, authored by
former North Carolina Senator Jesse Helms, stated that such funding would also be denied
to any school that “discriminates” against youth groups that prohibit the acceptance of
homosexuals and essentially, atheists.
126

In other words, the federal government has required that all schools receiving
funding under the act must allow youth groups that prohibit the membership of atheists to
recruit on campus. This essentially permits religious discrimination on public property,
which should be a violation of Title IV of the Civil Rights Act of 1964, which prohibits
discrimination in public schools on the basis of sex, race, national origin, language barrier,
religion and disability.
127
Moreover, Title III of the Civil Rights Act of 1964 forbids
religious discrimination in public facilities, which includes public facilities open to the
public and covers the parks and other public use facilities where some BSA groups hold
meetings or activities.
128

89
It is actually surprising that this link between the BSA, their federal funding and
validation via the new requirements of NCLB have not raised more legal questions. One
might think that the Federal requirement that schools must permit the BSA to recruit on
campus at least makes questionable the claim that it is merely a private association entitled
to its private expressive benefits. By linking funding to the requirement of BSA
recruitment on public school campuses, Congress sent a message of public endorsement of
the views of the BSA, thereby equating it with state action. Because the Civil Rights Act
and other case law (to be discussed in Chapter Five) forbid discrimination against
individuals on the basis of religious beliefs by public (i.e., state) entities such as schools,
under Titles II and IV of the Civil Rights Act, they cannot permit discrimination on the
basis of religious beliefs, no matter how minimal or subtle that discrimination might be.
There is a strong basis for arguing that the BSA is not a purely private organization
because its very existence and function are so entangled with the government as to take on
many of the attributes of state action that would be normally prohibited under the CRA of
1964 and various court cases. As a result it is extremely difficult to understand why the
BSA is not subject to the same “obligations of equal protection and non-discrimination that
restrict the policies of governmental entities.”
129
Indeed, the question of the organization’s
public nature continues to be ignored when it should be a discussion
130
on more than
atheist message boards and websites.
Moreover, what are the obligations of the BSA, by virtue of having been endowed
with a Federal Charter, with respect to federal policy regarding religious discrimination?
A Federal Charter is an honorific title conferred upon an already-existing organization by
Congress. Congress grants Federal Charters to organizations under Title 36 of the U.S.
90
Code. Most organizations are considered patriotic (i.e. The Boy Scouts), charitable,
historical, or educational. As of 2004, there were 91 nonprofit corporations listed in Title
36. Among these organizations are the Girl Scouts of America, Little League Baseball,
and the Veterans of Foreign Wars.
131

The Congressional Research Service (CRS) claims that the Federal Charter is not
an official endorsement of these private organizations. While annual reports must be
submitted to Congress, it claims that they are reviewed only perfunctorily to ensure that
the public is protected from abuses.
132
Nevertheless, the CRS recognizes that confusion
has arisen about federal charters that in many instances such entities receive public
monies, rendering them only quasi-private and not wholly private. The Federal
Government acknowledges that some Supreme Court decisions have determined that
some of these organizations act more as governmental entities than the private
organizations they claimed to be.
133
As a result, in the late 1990s, Congress halted its
practice of issuing Federal Charters to such organizations.
134

Because of this perceived public endorsement, following Dale, there was an
attempt to pass legislation in Congress that would have repealed the BSA’s federal
charter. However, this bill failed passage by a vote of 12 to 362. There does not appear
to be any new action in this area on the horizon.
When the Boy Scout’s Charter was granted in 1916, the law on civil rights was quite
different than it was in the late 20
th
century. The Civil Rights Act of 1964 would not be
passed for nearly another 50 years. As was just noted, since the passage of the CRA, other
federally chartered organizations have been required by the courts to comply with federal
civil rights laws. The most notable case concerned the Little League, another “national
91
institution”.
135
In 1974, the Little League was forced to integrate girls into the league after
it lost a case in the New Jersey Superior Court (NJSC) when the national organization
refused to allow its Tenafly, NJ team to include a girl on its team.
136
The Little League
had previously refused to permit girls to play and by the early 1970s, it faced a slate of
litigation by girls and their families, demanding that they be allowed to participate. In its
arguments in court, the Little League repeated archaic misconceptions about girls as their
rationale. The Little League insisted that girls had weaker bones, were more physically
frail then boys, and had slower reaction times. The League also contended that girls who
played athletics had a greater tendency to develop breast cancer.
137

Chiding the League for its anachronistic mindset, the New Jersey Superior Court
determined that the Little League must include girls because it qualified as a public
accommodation under state law.
138
This decision was rendered based on a broad
interpretation of the same New Jersey’s public accommodations definitions that were later
used in Dale. In this ruling, the NJSC concluded that although the Little League itself was
not a literal “place” of public accommodation, its activities were conducted on a variety of
public venues that were subject to the law on public accommodation.
139

Notably, this case was cited as precedent in the NJ Supreme Court’s decision against
the Boy Scouts on behalf of James Dale, the decision that was later overturned in Boy
Scouts of America v. Dale. Interestingly, in previous cases, the U.S. Supreme Court had
cited the Little League case in its own ruling against the Jaycees policy of excluding
women.
140
In Roberts v Jaycees the Court had determined that the Jaycees’ “size,
selectivity, commercial nature, and use of public facilities” rendered it not sufficiently
private to shield it from anti-discrimination laws.
141
In Roberts the Supreme Court had
92
not criticized the NJSC for its overly broad interpretation of its own state’s statutes. It is
not clear what has changed since those decisions were handed down, other than the
litigants in the later cases were members of unpopular minority groups. Minority groups,
as the 7
th
Circuit reasoned in Welsh v. Boy Scouts of America, who because of their
purported rejection of the BSA oath, also rejected the principles of the Declaration of
Independence and were therefore not quite patriotic enough.
142

Local Action
In the current judicial environment, it is unlikely that any issues with regards to
BSA’s Federal Charter or its status as more of a public-private organization will present
opportunities to overturn Supreme Court precedent. However, states and municipalities
have found other successful avenues to voice their disapproval of BSA practices, when
the BSA’s policies of exclusion conflict with state or local anti-discrimination
ordinances, some of which have been validated by the courts. The most successful
method thus far is for a municipality to withdraw long-standing privileges, such as low-
cost leases of public property to the BSA. If public entities cannot force the BSA to
change its policies, they can withdraw from being in a position of endorsing BSA’s
discriminatory practices through this kind of public funding. The State of Connecticut,
Berkeley, California and Philadelphia, Pennsylvania have all successfully fought and won
against the BSA in this arena. In San Diego, citizens who disputed the city
administration’s policy of funding the BSA through a below-market lease of valuable
public property were successful in putting an end to the practice. Thus, in reaction to the
BSA’s policies of exclusion against atheists and homosexuals, some jurisdictions or their
citizens have refused to continue to show public support through the funding mechanism.
93
While this solution may not be feasible in many communities, it has been in diverse
communities with a history of broad anti-discrimination ordinances.
Arguably, Berkeley, California might well be a test case for how the Court would
treat the withdrawal of privileges by a municipality, such as free or nominal use of public
facilities like public dock space. In 1998 the City of Berkeley enforced its local anti-
discrimination laws against the Sea Scouts, which is an adjunct of the BSA’s Explorer
Scouts. This ordinance bars from public funding any organization that discriminates on
the basis of (among other things) religion or sexual orientation. When the Sea Scouts
refused to give the city adequate reassurances that they would not discriminate against
homosexuals and atheists, Berkeley required the Sea Scouts to pay $500 a month for the
berth as it would any other entity. The Sea Scouts took the case to court, citing their right
to free speech and to free association. Ultimately, the Ninth Circuit decided in favor of
the city, noting that cities can deny public benefits to groups that refuse to comply with
local non-discrimination rules regarding religion and sexual orientation. It also observed
that the city had not barred them from the use of the public facility, but that because they
refused to abide by local rules, they had to pay for the berth.
143

While the Supreme Court seems uncomfortable ordering the BSA to allow
homosexuals and atheists into its ranks, it has allowed local laws such as Berkeley’s to
stand by denying certiorari, and refusing to hear the case. Six years after Dale, the Court
denied certiorari to the Scouts in their attempt to overturn the California Superior Court
ruling that permitted Berkeley to halt its practice of providing free berth space to the Sea
Scouts. While the Supreme Court is unwilling to force the BSA to admit unwanted
members, the denial of certiorari in Sea Scouts may be signaling that it will not force
94
localities to provide the tint of public endorsement, via funding, to organizations which
contravene local requirements regarding inclusion and equity.
In another instance, the City of Philadelphia advised the Boy Scouts that it must
alter their practices to conform to local laws. If they do not, when the lease of its
Philadelphia headquarters runs out on May 31, 2008, it must pay the fair market rent of
$200,000, or quit the premises. Previously, the city had allowed the BSA to rent the
space for only $1 a year. Curiously, the local BSA Council wanted to amend its policies,
but the national leadership prohibited it from doing so.
144

The State of Connecticut successfully enjoined the BSA and several organizations
from participation in a state workplace charitable campaign due to policies that violate
the state’s civil rights laws. Because such donations were perceived as violations of state
laws, in 1999, the State of Connecticut opted to reallocate donations designated for the
Boy Scouts councils. The case went to trial, and was decided in favor of state because its
decision to remove the BSA from the list of charitable organizations was done to uphold
the state law, and was directed at several organizations, not just the BSA.
145

In San Diego, citizens opposed that city’s decision to continue its arrangements the
Desert Pacific Boy Scout Council (the BSA-DPC) in the public parks Balboa Park and
Fiesta Island Park, both of which it had been leasing to the organization for $1 a year for
many years. Beginning in 1957, the BSA-DPC had first been allowed to lease an 18 acre
parcel of land in Balboa Park on which to build its local headquarters in. Part of the lease
had a non-discrimination clause that stipulated that the facility had to be open to the
general public. In 1987, the city also entered into a lease with the BSA-DPC for the
95
Fiesta Island parcel, which later included an aquatic facility. This lease included the
same non-discrimination stipulation as in the Balboa Park lease.
146

In 2002, the City Council voted to renew the leases on both facilities at the same
price. The new lease included updated non-discrimination clauses that forbade
discrimination against persons based on their religion and sexual orientation, among other
things. However, the city narrowly interpreted the statute to mean that all persons could
access the property and was silent on the issue of who could join.
147
Several individuals
filed suit against the city, seeking to have the leases rescinded because they violated state
law against financial support of religious organizations.
148

The Southern District Court of California returned a very strongly worded decision
in favor of the plaintiffs. Judge Napoleon A. Jones recited the results of the Dale case, as
well as the BSA’s policy excluding gays and atheists, and warned them that this is what
they could expect as fallout from their policies:
After Dale, it is clear that the Boy Scouts of America’s
strongly held private, discriminatory beliefs are at odds
with values requiring tolerance and inclusion in the public
realm, and lawsuits like this are the predictable fallout from
the Boy Scouts’ victory before the Supreme Court.
149

Reviewing the briefs submitted to him by the BSA-DPC in which the organization
referred to itself as a religious organization, the judge ruled that the BSA is a “religious
organization” because it requires members to declare a belief in God, and because the
organization is excessively entangled with religious organizations. Moreover, the
organization makes copious mention in its publications on religion, worship and God.
150

Sadly, the U.S. Department of Justice, which is charged with enforcing title III of
the CRA, filed an amicus brief in favor of the BSA for the appeal in the Ninth Circuit
96
Court, claiming that the lease did not violate the constitution because it is not a religious
organization (even though the BSA’s own literature presented to the Southern District
Court stated as much) and because the city leased out land to other religious
organizations.
151
How the Ninth Circuit will decide this case remains in question; it is
presently on appeal to that court.
Finally, in 2004, the ACLU successfully settled a lawsuit with The Pentagon
regarding its sponsorship of Boy Scout troops. As a result of the settlement, The
Pentagon agreed to warn military bases that they were forbidden from sponsoring Boy
Scout troops because of its policy of religious discrimination.
152
This, however, did not
halt The Pentagon from funding the Scouts Jamboree in 2010 in Chicago, which has been
established through federal law, continuing the pattern of federal endorsement of the
BSA through funding.
153

Summary
While the Courts appear to be reluctant to declare the BSA a form of public
accommodation subject to federal and state anti-discrimination laws, it appears that
litigants may be able to express their disagreement with the BSA on policy matters through
the withdrawal of public support. A few cities have successfully withdrawn pecuniary
privileges while permitting the BSA to continue their First Amendment rights of
expressive association in defiance of local anti-discrimination ordinances. At present, such
actions may be the only legal recourse available, given the current Supreme Court’s
unwillingness to forthrightly recognize the lack of congruence between its ruling on Dale
and its previous rulings in Rotary International and Roberts.

97
Conclusion
As one scholar of the BSA’s educational practices noted with concern in 1941, the
tie between the federal government and the BSA is so strong that rationally, the BSA’s
policies should conform to those of the government. However, even at that time, Edwin
Nicholson, author of Education and the Boy Scout Movement in America ,worried that
the BSA’s focus on rote learning about American civics, along with its encouragement of
uncritical, unquestioning loyalty to the country was failing to cultivate a deep
understanding of “the truly dynamic nature of American political philosophy as
embodied in the Declaration of Independence and the Constitution…”
154
among its
members. The “inflexibility and immutability”
155
that Nicholson observed nearly
seventy years ago fostered both anachronistic and superficial notions of trustworthiness,
forthrightness and individual integrity. Surprisingly, the organization that purported to
foster such traits in young men agreed to a solution in the Portland Public schools that
allowed its representatives to lie by omission to eager young boys so that the BSA can
still increase membership by recruiting. Yet, the BSA insisted on excluding atheists, who
are perceived to lack the very traits the BSA demonstrates in this exercise. Moreover, it
appears that the BSA’s notions of who can belong have truly remained entrenched in the
1950s, before the CRA and various other changes that truly showed how flexible the
nation’s Constitution is.
Of course, the BSA can only continue these policies if the courts permit it as they
have. Perhaps the BSA gets this special protection because its mom and apple pie image
truly seems to speak to worship of the Civil Religion. Dale demonstrated the Court’s
disinclination towards recognizing previous precedent that protected minority groups from
98
discrimination, even from organizations who should qualify as a public accommodation.
Would this have been the case had the litigant been a member of a more accepted group in
society, perhaps a Christian or Jew or a heterosexual male suffering from some sort of
discrimination? Or had this involved a person of color, would the response have been so
“tepid”
156
? Or had the defendant not been the walking embodiment of the nation’s union
of God and patriotism? While those questions are obviously hypothetical, it is troubling
that the Court both skirted the very laws it had previously decreed, and then in many ways
rewrote that precedent so as the ensure that homosexuals and other unpopular minorities
like atheists would not be guaranteed such protections under the law.
Perhaps this concern might seem excessive or overstated, had the Court not
replicated this pattern in Newdow, which will be the subject of the next chapter. In
Newdow, where an atheist’s legitimate concern about the constitutionality of the words
“Under God” in the Pledge of Allegiance was under scrutiny, the Court again sidestepped
its own standards to avoid ruling on the question, while rewriting its own precedent
regarding the rights of non-custodial parents. Instead, in its dicta, the Court relied on
previous holdings concerning so-called ceremonial deism, without analyzing the
differences between the settings for that “ceremonial deism” and the classroom impact of
the Pledge on a child.
The court’s ruling in Newdow was as equally puzzling as Dale, given its own
precedents. Chapters Four and Five will show how since World War II the Supreme Court
has in numerous instances prohibited public entities, such as public schools, from
discriminating against, singling out, or otherwise placing children in a position of
humiliation or because of their non-conformist religious beliefs. The Courts had
99
previously taken a far more cautious approach where school children of minority faiths
were concerned because of the pressures to conform in setting of the classroom. Newdow
may have begun to reverse this trend.

100

Chapter Three Endnotes
1
Penny Edgell et al. “Atheist as Other: Moral Boundaries and Cultural Membership in American Society”:
214, 230.

2
“Religion and Politics: Contention and Consensus.” The Pew Research Center for the People and the
Press. 24 July 2003. 6 May 2008 http://pewforum.org/publications/surveys/religion-politics. pdf.

3
Edgell et al also noted that the enmity towards atheists may emanate from this factor as well. Penny
Edgell, Douglas Hartmann and Joseph Gerteis. “Atheists as Other: Moral Boundaries and Cultural
Membership in American Society”: 211-234.

4
If asked about whether other persons could be good without religion, in 2002 the Barna Group found that
53% of American adults in believed that if a person is generally good, or does enough good things for
others during their life, they can earn a place in Heaven. “Americans Draw Theological Beliefs from
Diverse Points of View”. Barna Group. 8 October 2002. 15 April 2008
http://www.barna.org/FlexPage.aspx?Page=BarnaUpdate&BarnaUpdateID=122.

5
The controlling federal case is Dale v. Boy Scouts of America 530 U.S. 640 (2000), which held that the
organization’s right of expressive association would be violated if it were forced to admit homosexuals into
its ranks. Effectively, the case also permits exclusion of atheists on the same grounds.

6
Boy Scouts of America v. Dale 530 U.S. 640 (2000).

7
The BSA is a membership organization for boys only. Its counterpart, the Girl Scouts of America, does
not require members to state the word God. The Girl Scout Promise allows girls to replace the word “God”
with “whatever word your spiritual beliefs dictate”. “Girl Scout Promise and Law”. The Girl Scouts of
America. 6 May 2008 http://www.girlscouts.org/program/gs_central/promise_law/. According to Jay
Mechling, when the Girl Scouts of America faced similar challenges in the 1990s to an oath requiring an
affirmation of a belief in God, the organization adapted and changed its oath to be inclusive of girls who
are not monotheistic. Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth
Chicago: The University of Chicago Press, 2001. 37.

8
Boy Scouts of America. “2006 BSA Year in Review” Publication #02-030. (2007): 1.

9
Robert Baden-Powell. Scouting for Boys: A Handbook for Instruction in Good Citizenship. 1908. Elleke
Boehmer, Ed. New York: Oxford University Press, Inc., 2004.

10
Boy Scouts of America. “Fact Sheet: Founders of Scouting and the BSA”. Publication #02-211B
(2006): 1.

11
United States Code Service, 36 USCS §30901-30908. Charlottesville, VA: Lexis Law Publishing, 1999.
263-268.

12
Boy Scouts of America. “Fact Sheet: BSA at a Glance”. Publication #02-501F (2006). 1.

13
United States Code Service, 36 USCS §30902.

14
Boy Scouts of America. “Fact Sheet: Chartered Organizations and the Boy Scouts of America”.
Publication # 02-507F (2006): 1.

15
Boy Scouts of America. “Fact Sheet: BSA at a Glance”: 1.

101

16
Boy Scouts of America. “Fact Sheet: Chartered Organizations and the Boy Scouts of America”: 1.

17
Boy Scouts of America. “Fact Sheet: Chartered Organizations and the Boy Scouts of America”: 3.

18
Boy Scouts of America. “Fact Sheet: Chartered Organizations and the Boy Scouts of America”: 2.

19
Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth. 36.

20
Arthur S. Leonard. “Boy Scouts of America v. Dale: The “Gay Rights Activist” As Constitutional
Pariah”. Stanford Law and Policy Review 12 (2001): 31.

21
Jay Mechling. On My Honor: Boy Scouts and the Making of American Youth. 36.

22
Also known as the Boy Scouts of America Equal Access Act, this was an amendment to the No Child
Left Behind Act (NCLB). Pub. L. 89-10, title IX, Sec. 9525; 20 U.S.C. 7905.

23
Prior to NCLB and after the Dale decision, many cities and school districts throughout the country
forbade the BSA from recruiting on public school grounds or from using public facilities because the BSA
practices violated their anti-discrimination ordinances. For a sample listing of the cities in New York State
that cut off support (including the New York City Board of Education), see Kate Zernike. “Scouts’
Successful Ban on Gays Is Followed by Loss in Support”. The New York Times. 29 August 2000: A1.
These local actions against the Scouts are discussed later in this chapter.

24
Boy Scouts of America. “Mission Statement”. Boy Scouts of America. 2 May 2008
http://www.scouting.org/media/mission.aspx.

25
Boy Scouts of America. “Mission Statement”.

26
Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth,. 36.

27
Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth,. 36.

28
Boy Scouts of America. “Manual for Chaplain Aides and Chaplains”. Interestingly the BSA has also
barred Unitarian Universalist (UUA) boys from earning religion emblems because UUA does not affirm a
belief in God. However, these boys can still be members. Eric Alan Isaacson, “Traditional Values or a
New Tradition of Prejudice? The Boy Scouts of America vs. the Unitarian Universalist Association of
Congregations”. George Mason University Civil Rights Law Journal 17 (2006): 1-77.

29
Boy Scouts of America v. Dale 530 U.S. 640 (2000). See Erez Reuveni, “On Boy Scouts and Anti-
Discrimination Law: The Associational Rights of Quasi-Religious Organizations” Boston University Law
Review 86 (2006): 110. Some of the backlash is referenced at footnote 24.

30
Boy Scouts of America. “Resolution”. Boy Scouts of America. 6 February 2002. 2 January 2008
http://www.scouting.org/nav/enter.jsp?s=mc&c=mv.

31
“BSA Board Affirms Traditional Leadership Standards”. Boy Scouts of America. February 2002. 2
January 2008 http://www.scouting.org/nav/enter.jsp?s=mc&c=mv.
32
Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth. 43.

33
Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth. 43.

102

34
Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth. 44-45.

35
Jay Mechling, On My Honor: Boy Scouts and the Making of American Youth. 46-47.

36
Congressional Record – House of Representatives. 9 February 2005: H421.

37
Boy Scouts of America. “Boy Scouts of America Summer Camp Outcomes Study”. Publication #02-448
(01) (2001): 1.

38
Malcolm Gay. “Get Lost, Kid!” Riverfront Times. 20 October 2004. 10 January 2008
http://www.riverfronttimes.com/2004-10-20/news/get-lost-kid.

39
This is the statement of Renee Irby, the mother of developmentally-disabled boy was barred from Tiger
Club meetings, apparently because the boy was considered disruptive. Malcolm Gay. “Get Lost, Kid!”
Riverfront Times. 20 October 2004. 10 January 2008 http://www.riverfronttimes.com/2004-10-
20/news/get-lost-kid.

40
Boy Scouts of America Youth and Family Research Center. “Values of Americans: A Study of Ethics
and Character”. Publication #02-849 (2006): 39.

41
Boy Scouts of America Youth and Family Research Center. “Values of Americans: A Study of Ethics
and Character”: 49.

42
Boy Scouts of America. “The Congress and Scouting” Publication #02-571 (2007): 1.

43
Boy Scouts of America. “Fact Sheet: Astronauts and the BSA”. Publication #02-558F (2006): 1.

44
The Boy Scouts of America. “Fact Sheet: Scouting for a Quote”. Publication #02-559B (2006). See
also the debates on Jamboree funding in Congress in 2006. Congressional Record-House of
Representatives. 9 February 2005: H419-H421.

45
Boy Scouts of America v. Dale 530 U.S. 640 (2000).

46
Boy Scouts of America v. Dale 530 U.S. 640. 644, 665.

47
Boy Scouts of America v. Dale 530 U.S. 640. 644.

48
Boy Scouts of America v. Dale 530 U.S. 640. 645, also Andrew Koppelman. “Signs of the Times: Dale
v. Boy Scouts of America and the Changing Meaning of Nondiscrimination”. Cardozo Law Review 23
(2002): 1820.

49
Boy Scouts of America v. Dale, 530 U.S. 640. 640.

50
Boy Scouts of America v. Dale 530 U.S. 640. 645.

51
Boy Scouts of America v. Dale 530 U.S. 640. 640.

52
Boy Scouts of America v. Dale 530 U.S. 640. 648. Chief Justice Rehnquist wrote the majority opinion
and was joined by Justices Thomas, Kennedy, O’Connor and Scalia.

53
Other cases will be discussed later in the chapter.

103

54
N.J. Stat. Ann. §10:5-4. Boy Scout of America v. Dale 530 U.S. 640. 663.

55
Boy Scouts of America v. Dale 530 U.S. 640. 650-651. Scholar Christopher Fowler argues convincingly
that Dale has codified the right to discriminate against homosexuals. Christopher E. Fowler. “The Supreme
Court Endorses ‘Invidious Discrimination’: Boy Scouts of America v. Dale Creates a Constitutional Right
to Exclude Gay Men”. Journal of Law and Policy 9 (2000-2001): 934.

56
Boy Scouts of America v. Dale 530 U.S. 640. 661-62.

57
The list of places considered to be public accommodations under The Civil Rights Act of 1964 is quite
long and includes inns, restaurants, soda fountains, entertainment places such as movie theaters, sports
arenas and stadiums, and commercial establishments. Private establishments are not included under the
law, if they are deemed to not be open to the public. The law also clearly stipulates that it applies to the
actions of state and local entities (i.e. schools) as well. U.S Code Title 42 §2000a.

58
Boy Scouts of America v. Dale 530 U.S. 640. 656-57.

59
Boy Scouts of America v. Dale 530 U.S. 640. 655-656.

60
Boy Scouts of America v. Dale 530 U.S. 640. 650-51. 654.

61
Boy Scouts of America v. Dale 530 U.S. 640. 664.

62
Boy Scouts of America v. Dale 530 U.S. 640. 665-670.

63
Boy Scouts of America v. Dale 530 U.S. 640. 675.

64
Boy Scouts of America v. Dale 530 U.S. 640. 672.

65
Rotary Int’l v. Rotary Club of Duarte 481 U.S. 537 (1987) The Jesse Unruh Civil Rights Act can be
found in California Civil Code §51 (Thomson West, 2008). 21-22. It prohibits discrimination against
individuals based on religion and sexual orientation, also forbids discrimination in any business
accommodation.

66
Roberts v United States Jaycees 468 U.S. 609 (1984). 628. Here, the Court prohibited the Jaycees, an
open membership organization, from excluding women from its general membership.

67
Roberts v United States Jaycees 468 U.S. 60: 679-685.

68
Roberts v United States Jaycees 468 U.S. 60: 700-702.

69
Erwin Chermerinsky and Catherine Fisk, “The Expressive Interest of Associations” William and Mary
Bill of Rights Journal 9 (2001): 596.

70
Boy Scouts of America v. Dale 530 U.S. 640: 656.

71
Roberts v United States Jaycees 468 U.S. 609: 628.
72
Roberts v United States Jaycees 468 U.S. 609.

73
Rotary Int’l v. Rotary Club of Duarte 481 U.S. 537 (1987) The Jesse Unruh Civil Rights Act can be
found in California Civil Code §51. Thomson West, 2008. 21-22. It prohibits discrimination against

104

individuals based on religion and sexual orientation, also forbids discrimination in any business
accommodation.

74
Roberts v United States Jaycees 468 U.S. 609 (1984), cited in Andrew Koppelman, “Signs of the Times:
Dale v. Boy Scouts of America and the Changing Meaning of Nondiscrimination”: 1824. In Roberts, the
Jaycees attempted to claim that allowing women to join as full members would impact their message
because the “admission of women as voting members will change the message communicated by the
group's speech because of the gender-based assumptions of the audience.” As the court noted, such
assumptions were unsupported and could not be used as a reason to exclude them from an organization that
was open to the public, pp. 627-628. Also, Rotary Int’l v. Rotary Club of Duarte 481 U.S. 537 (1987): 538.
In the latter case, Rotary International had terminated the Duarte Club for admitting two women as full
members. The Court upheld a State appeals court ruling in favor of the Duarte Club, ordering Rotary
International to reinstate the Club, and declared that the interest of eliminating discrimination overrode the
claim to expressive association.

75
Boy Scouts of America v. Dale 530 U.S. 640: 659.

76
Christopher E. Fowler. “The Supreme Court Endorses ‘Invidious Discrimination’: Boy Scouts of
America v. Dale Creates a Constitutional Right to Exclude Gay Men”: 934. Erwin Chermerinsky and
Catherine Fisk. “The Expressive Interest of Associations”: 595.

77
Dale cited both Welsh and Curran to demonstrate that there had been case law on this matter. As already
noted, Welsh concerned an atheist boy.

78
Eric Alan Isaacson, “Traditional Values or a New Tradition of Prejudice? The Boy Scouts of America
vs. the Unitarian Universalist Association of Congregations”: 38.

79
The Civil Rights Act of 1964 forbids discrimination in employment and in public accommodations
against individuals because of their religious beliefs. See U.S. Code Title 42 §2000a. Numerous Court
decisions have forbidden the elevation of one religion over another, or religion over irreligion. This will be
discussed in Chapter Five.

80
This will be discussed in greater detail in Chapter Four.

81
42 U.S.C. §2000a (a)-(b) (1988). An overview of the law can be found in: Sandra. J. Colhour, “Title II
of the Civil Rights Act of 1964 and Membership Organizations Unconnected to a Physical Facility”.
Missouri Law Review 59 (1994): 810-812.

82
Rotary Int’l v. Rotary Club of Duarte 481 U.S. 537 (1987). This decision forbade the Rotary Clubs from
prohibiting women from becoming full members.

83
California Civil Code Section §51b reads: “All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical
condition, marital status, or sexual orientation are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
(Emphasis added).

84
Curran v. Mount Diablo Council of The Boy Scouts 17 Cal.4
th
670 (1998): 670 and 670-735. In Curran,
the California Supreme Court upheld the BSA’s policy of excluding individuals on the basis of their
homosexuality, stating that the Unruh Civil Rights Act did not apply to the BSA because the BSA is not a
business accommodation as the statute intends.

105

85
See the case of Darrell, note 112.

86
Randall v. Orange County Council 17 Cal 4
th
736 (1998).

87
Randall v. Orange County Council 17 Cal 4
th
736: 738.

88
Mechling, Jay. On My Honor: Boy Scouts and the Making of American Youth: 36-37.

89
Randall v. Orange County Council 17 Cal 4
th
736: 739.

90
Randall v. Orange County Council 17 Cal 4
th
736: 739.

91
Randall v. Orange County Council 17 Cal 4
th
736: 740.

92
Randall v. Orange County Council 17 Cal 4
th
736: 740.

93
Randall v. Orange County Council 17 Cal 4
th
736: 741.

94
Randall v. Orange County Council 17 Cal 4
th
736: 744.

95
The companion case to Randall was Curran v. Mount Diablo Council of The Boy Scouts 17 Cal.4
th
670
(1998). In Curran, the California Supreme Court also upheld the BSA’s policy of excluding individuals on
the basis of their homosexuality, this time involving an Eagle Scout, also with a long history with the BSA
who was rejected as assistant Scoutmaster because of his gay lifestyle. In doing so, the court stated that the
Unruh Civil Rights Act did not apply to the BSA, and the BSA’s right to expressive association. Like
James Dale, Timothy Curran’s homosexuality had been mentioned in a newspaper article, which is how the
BSA learned of his lifestyle choices. 674.

96
Welsh v. Boy Scouts of America 787 F. Supp. 1511 (N.D. Ill. 1992). Welsh v. Boy Scouts of America,
993 .F. 2d 1267 (7th Cir. 2003).

97
Welsh v. Boy Scouts of America 787 F. Supp. 1511: 1512.

98
Welsh v. Boy Scouts of America 993 F. 2d 1267: 1268.

99
42 U.S.C. §2000a (a)-(b) (1988).

100
Such locations include fixed place location such as inns, hotels, motels, restaurants, cafeterias, lunch
rooms, lunch counters, soda fountains, retail establishments, gas stations movie houses, theaters, concert
halls, sports arenas and stadiums. Welsh v. Boy Scouts of America 993 F. 2d 1267: 1270.

101
Welsh v. Boy Scouts of America 993 F. 2d 1267: 1269-70.

102
The Library of Congress’ own documents state that it is not the law of the land. See The Library of
Congress: America’s Story. “The Declaration of Independence”. The Library of Congress. 19 April 2008
http://www.americaslibrary.gov/cgi-bin/page-cgi/aa/presidents/jefferson/declar_2.

103
Welsh v. Boy Scouts of America 787 F. Supp. 1511: 1268.

104
Powell v. Bunn 59 P3d 559 (2006).

105
Powell v. Bunn 59 P3d 559: 569.

106

106
Powell v. Bunn 59 P3d 559: 569.

107
2007 Oregon Revised Statutes, Volume 9, Title 30, Education and Culture, Section 327.109. Salem:
State of Oregon, 2007. 34.

108
Powell v. Bunn 59 P3d 559: 565-567.

109
Powell v. Bunn 59 P3d 559: 566-67.

110
Powell v. Bunn 59 P3d 559: 566-67.

111
Rotary Int’l v. Rotary Club of Duarte 481 U.S. 537 (1987).

112
Beliefnet News Services. “Atheist Scout Booted from Scouting”. Beliefnet. Online. Internet. 11/4/02.
Available 5/6/08 http://www.beliefnet.com/story/116/story_11619_1.html.

113
Cable News Network. “Atheist Scout given a week to declare a week to declare belief”. CNN. 31
October 2002. 2 January 2008 http://archives.cnn.com/2002/US/West/10/31/atheist.scout.ap/.

114
Quoted in Andrew Chase Baker. “The Irreverent Eagle”. Religion in the News 6 (Summer 2003).
Religion in the News. Summer 2003. 11 May 2008
http://www.trincoll.edu/depts/csrpl/rinvol6no2/Irreverent%20Eagle.htm.

115
Andrew Chase Baker. “The Irreverent Eagle”.

116
Boy Scouts of America. “Fact Sheet: Eagle Scouts” Publication #02-516D (2006): 1.

117
Boy Scouts of America. “Fact Sheet: Eagle Scouts”: 2.

118
Boy Scouts of America. “Mission Statement”.

119
Boy Scouts of America. “Mission Statement”.

120
Andrew Chase Baker, “The Irreverent Eagle”. Lambert did not litigate his case.

121
US Code Title 36, Sec. 30901-30908. Passed 6/15/1918.

122
Boy Scouts of America National Council, “Report to the Nation”. The Boy Scouts of America. 2004.
16 November 2006 http://www.scouting.org/nav/enter.jsp?s=mc&c=fs.

123
Eric Alan Isaacson. “Traditional Values or a New Tradition of Prejudice? The Boy Scouts of America
vs. the Unitarian Universalist Association of Congregations”: 1. The Unitarian Church is now the
Unitarian-Universalist Association (UUA), because Unitarianism and Universalism merged into one church
in 1961. Earlier, the chapter mentioned that the BSA now precludes UUA boys from earning the religious
emblem. This is because the religion does not require a belief and God and because it is the only
denomination that recognizes same-sex marriage.
124
Karen Brulliard. “Presidential Visit to Scouts Jamboree is Postponed…” The Washington Post. 28 July
2005: B5.

125
Eric Alan Isaacson, “Traditional Values or a New Tradition of Prejudice? The Boy Scouts of America
vs. the Unitarian Universalist Association of Congregations”: 49.

107

126
Also known as the Boy Scouts of America Equal Access Act, this was an amendment to the No Child
Left Behind Act. Pub. L. 89-10, title IX, Sec. 9525; 20 U.S.C. 7905.

127
Title 42 U.S. Code §2000c (1-9). This section is enforced by the Educational Opportunities Section o f
the U.S. Department of Justice.

128
42 U.S.C. §2000b (1-3).

129
Arthur S. Leonard, “Boy Scouts of America v. Dale: The ‘Gay Rights Activist’ As Constitutional
Pariah”: 32.

130
Arthur S. Leonard, “Boy Scouts of America v. Dale: The ‘Gay Rights Activist’ As Constitutional
Pariah”: 32.

131
Ronald C. Moe. Congressionally Chartered Non-profit Organizations (‘Title 36 Corporations’): What
They Are and How Congress Treats Them . Washington, DC: Congressional Research Service, 2004.

132
Ronald C. Moe. Congressionally Chartered Non-profit Organizations (‘Title 36 Corporations’): What
They Are and How Congress Treats Them: CRS-10.

133
Kevin R. Kosar. Congressional or Federal Charters: Overview and Current Issues. Washington, DC:
Congressional Research Service, 2005: CRS-6.

134
Kevin R. Kosar. Congressional or Federal Charters: Overview and Current Issues. Washington, DC:
Congressional Research Service, 2005: CRS-14.

135
Susan E. Jennings. “’As American as Hot Dogs, Apple Pie and Chevrolet’: The Desegregation of Little
League Baseball”. Journal of American Culture 4 (1981): 82.

136
Susan E. Jennings. “’As American as Hot Dogs, Apple Pie and Chevrolet’: The Desegregation of Little
League Baseball”: 81.

137
Susan E. Jennings. “’As American as Hot Dogs, Apple Pie and Chevrolet’: The Desegregation of Little
League Baseball”: 82-83.

138
Susan E. Jennings. “’As American as Hot Dogs, Apple Pie and Chevrolet’: The Desegregation of Little
League Baseball”: 85.

139
National Organization of Women v. Little League Baseball, Inc., 67 N.J. 320 (1974) Following some
defiance from the national organization, the Little League capitulated. It also initiated its Softball Division.
Girls can also play on the baseball teams. Since 1974, about 5 million girls have played in the Little
League sometime after the Superior Court ruling. See generally, http://www.littleleague.org although its
telling of the history is somewhat more sanguine than what actually occurred after the ruling, which
included local teams shutting down, or refusing to admit girls using the same standards that applied to boys.
See Susan E. Jennings, “’As American as Hot Dogs, Apple Pie and Chevrolet’: The Desegregation of
Little League Baseball”: 85-90.
140
Roberts v. United States Jaycees 468 U.S. 609 (1984): 630.

141
Roberts v. United States Jaycees 468 U.S. 609 : 629-30.

142
Welsh v. Boy Scouts of America 993 F. 2d 1267: 1270.

108

143
Evans v. City of Berkeley 38 Cal. 4
th
1; 40 Cal Rptr. 3d 205 (Ninth Circuit, 2006). The Supreme Court
denied certiorari, so the ruling stands.

144
Nicholas Wapshott. “Scouting: The straight and narrow” New Statesmen 137. 10 March 2008: 22.

145
Boy Scouts of America v. Wyman 213 F. Supp. 2d 159 (2003).

146
Barnes-Wallace v. Boy Scouts of America (275 F. Supp. 2d 1259 (S.D. Cal. 2003): 1264-65.

147
Barnes-Wallace v. Boy Scouts of America (275 F. Supp. 2d 1259 : 1265.

148
Barnes-Wallace v. Boy Scouts of America (275 F. Supp. 2d 1259 : 1264.

149
Barnes-Wallace v. Boy Scouts of America (275 F. Supp. 2d 1259 : 1263.

150
Barnes-Wallace v. Boy Scouts of America (275 F. Supp. 2d 1259 : 1271-72.

151
“Brief for the United States as Amicus Curiae Supporting Defendants-Appellees/Cross-Appellants and
Urging Reversal” in the United States Court of Appeals for the Ninth Circuit, Barnes-Wallace v. Boy
Scouts of America. The brief also cites Powell v. Bunn, p. 17.

152
“Pentagon agrees to warn military bases not to sponsor Boy Scouts”. Associated Press. 17 November
2004.

153
Winkler v. Gates turned down a complaint against the Department of Defense for funding the BSA’s
Scout Jamboree, claiming that the plaintiffs lacked standing. Winkler v. Gates 481 F.3d 977 (7
th
Circuit
2007).

154
Edwin Nicholson, Education and the Boy Scout Movement in America. New York: Teachers’ College-
Columbia University, 1941: 68-69.

155
Edwin Nicholson, Education and the Boy Scout Movement in America: 69.

156
Jennifer Gresock. “No Freedom from Religion: The Marginalization of Atheists in American Society,
Politics, and Law”, Margins 1 (2001): 580.
109
Chapter 4
Michael Newdow and the Pledge of Allegiance: Is Participation in Civil
Religion truly voluntary?

Introduction
The Boy Scouts cases demonstrate the willingness of the U.S courts to permit a
governmentally-sanction and supported-entity to exclude unpopular minorities from
membership because of a First Amendment right to expressive association. As a result of
Dale, the Supreme Court has effectively endorsed exclusionary practices by an
organization that calls itself “private” but is rather entangled with the federal government.
This has occurred although the BSA receives public monies, has received official
approval from Congress in the form of a Federal Charter, and was further endorsed
through the on-campus recruitment mandate under No Child Left Behind. Such actions
have permitted the BSA to continue to exclude atheists and homosexuals based on little
more than prejudice, or “habitual way of thinking about strangers” as Justice Steven aptly
termed it in Dale.
1

In many ways, the Boy Scouts embody a physical manifestation of the nation’s
Civil Religion, what I call America’s de facto religion. Since its founding, the Boy
Scout’s mission has been to train boys to be patriotic citizens of good character.
2
The
BSA believes that good character includes a reverence for God. In order to join, boys
must proclaim a duty to God. The Boy Scout’s creed truly merges religion and
patriotism. Atheists are excluded because they are not viewed as accepting the full creed
of American faith: God and country are merged into one sacrosanct, inviolable entity
that atheists reject.
110
Few public declarations embody this civil religion more than the Pledge of
Allegiance.
3
The daily recital of the Pledge in public schools indoctrinates American
youth in the unquestioning acceptance of this civil religion while also marginalizing those
students who wish express their allegiance but cannot in good faith repeat a belief in the
monotheistic God of the Pledge.
4
In retrospect then, the results of Michael Newdow’s
case opposing the inclusion of the words “Under God” in the Pledge of Allegiance should
not have been surprising.
5
Given the Court’s willingness to disregard its own case law
regarding discrimination and public accommodations in Dale regarding another
marginalized minority group, it was arguably predictable that the Court would again
evade stare decisis regarding Establishment Clause cases to avoid ruling on the question.
This was especially true because the litigant was the member of an unpopular and poorly
understood minority group. Further dampening Newdow’s effort was its timing: the
controversial decision by the Court of Appeals for the Ninth Circuit that declared the
Pledge of Allegiance to be unconstitutional was published less than a year after 9/11.
6

Pledge History Prior to Newdow
The Pledge of Allegiance is only 116 years old. It was written in 1892 by Baptist
Minister Frances Bellamy. It first appeared in the children’s publication, The Youth’s
Companion in late 1892.
7
A month later, it was recited by school children for the first
time as part of the four-hundredth anniversary of Columbus’ arrival in the Americas. In
1898, the New York Legislature was the first state to pass legislation requiring students
to recite the pledge.
8
In 1919, Washington State passed the first law mandating that
teachers lead weekly flag exercises or face dismissal.
9
By 1940, 18 states mandated
111
either a recital of the Pledge and/or a flag salute.
10
In 1942, Congress codified the Pledge
of Allegiance in its pre-1954 form, which did not include the words, “Under God”.
11

In 1954, during the height of the Cold War
12
, Congress passed legislation that
inserted the words “Under God” into the Pledge of Allegiance.
13
Prompted by the
Knights of Columbus
14
, then-President Eisenhower campaigned vigorously to have these
words included, stating that “Without God, there could be no form of American
government, nor an American way of life.”
15
The purpose of the legislation was overtly
religious: the legislation’s sponsor maintained that the purpose was “to contrast this
country’s belief in God with the Soviet Union’s embrace of atheism”.
16

Prior to Newdow’s case, only 31 of 50 states actually mandated or suggested the
Pledge of Allegiance as a patriotic exercise.
17
In California, where the Newdow case
commenced, the Pledge was not a required element of the mandated daily patriotic
exercise. The Education Code actually suggests, but does not require, the use of the
Pledge of Allegiance as part of the daily patriotic ritual. In fact, the statute only states
that the Pledge would “satisfy” the requirement.
18
Elk Grove Unified School District
(EGUSD), where Newdow’s daughter attended school, opted to make the daily recitation
of the Pledge mandatory in all elementary and secondary schools in the district. This is
where Newdow’s story begins.
Newdow case history
In the year 2000, Michael Newdow, atheist, emergency room physician, lawyer,
and then-custodial father of a girl attending school in EGUSD in Sacramento County,
California initiated litigation against Congress and then-President Bill Clinton, claiming
that the words “Under God” in the Pledge of Allegiance were unconstitutional.
19
He
112
brought the suit as his daughter’s “next friend”.
20
His lawsuit maintained that his
daughter’s school district’s policy of requiring daily recitation of the Pledge of
Allegiance violated the Establishment Clause of the First Amendment. The Federal
District Court of the Eastern District of California dismissed the case and Newdow
appealed to the Ninth Circuit Court in San Francisco, California.
21

The Ninth Circuit’s initial decision (Newdow I)
22
threw out the claims against
Congress and the President due to jurisdictional matters
23
, but addressed the issue of the
constitutionality of the words “Under God” in the Pledge directly, ruling it a violation of
the Establishment Clause of the First Amendment of the Constitution. The three-judge
panel applied the three existing Supreme Court Establishment Clause tests to determine
whether the EGUSD had violated the Establishment Clause in this case.
24
By a vote of
two to one, the Circuit Court determined that the EGUSD’s mandated practice of teacher-
led recitation of the Pledge of Allegiance did violate the Establishment Clause of the First
Amendment. The Ninth Circuit agreed with Newdow’s claim that the inclusion of the
words “Under God” in the Pledge of Allegiance was unconstitutional because the law
was passed with a religious purpose and because it explicitly favored monotheistic beliefs
over other beliefs.
As this court noted, the words “Under God” were added by Federal statute in 1954
with the express purpose of direct, state endorsement of a belief in God that would
distinguish God-fearing America from the atheistic USSR.
25
This is clear in the
Congressional Record, making these words unconstitutional.
26
Reiterating the tenor of
numerous earlier Supreme Court decisions, the court wrote that due to the “age and
impressionability of schoolchildren”, the district’s policy “was likely to convey
113
impermissible message of endorsement and disapproval to others of their beliefs
regarding the existence of a monotheistic God”.
27

In a vehement dissent, Justice Fernandez argued that the inclusion of the words
“Under God” was so “de minimus” (inconsequential) that it could not seriously be
considered as an establishment of any kind of religion in the country. Anticipating the
argument that the Supreme Court majority would later make, he opined that a
combination of the nation’s history of recognition of God in public services, and the fact
that the EGUSD did not require Newdow or his daughter to say the Pledge, afforded
enough constitutional latitude so that their First Amendment rights were not impinged
upon.
28

As a result of this initial but not final decision, Newdow I, the use of the Pledge in
California and all states covered by the Ninth Circuit was deemed unlawful. However,
because 9/11 had occurred within the previous year and patriotic fervor was high, there
was an intense public backlash against the ruling. That night, members of Congress stood
on the steps of the Capitol to publicly recite the Pledge in a show of support. In a vote of
416-3, the 107
th
Congress passed a resolution repudiating the Ninth Circuit’s decision and
that declaring that the Pledge was a religious exercise but merely an expression of support
for the United States.
29
The Senate of the 107
th
Congress also passed a resolution, 99-0,
condemning the decision, and asking the Senate to intervene in the decision.
30
One day
after Newdow I, Senate Bill S. 2690 was introduced by Sen. Tim Hutchinson (R-AR)
reaffirming the language of the Pledge of Allegiance as well as the language of the national
motto, “In God We Trust”. This bill passed both Houses of Congresses with large
majorities and was signed into law by President Bush.
31
Because of the uproar, the day
114
after the ruling, the Court stayed its decision pending a final determination by the Supreme
Court.
32

The case was further complicated by Newdow’s ongoing custody battles with the
mother of his daughter, Sandra Banning, to whom he was never married. Banning
maintained that the Pledge was not unconstitutional and claimed that their daughter did
not oppose repeating the Pledge. These custody battles had important repercussions for
the ultimate outcome of the case, so they deserve mention here. After the first Ninth
Circuit decision in Newdow I, Banning obtained an order giving her sole legal custody of
the girl. This custody order stated that the two parents were required to consult one
another on matters regarding the girl’s health, education and welfare, but if they
disagreed on these matters, Banning had the final say.
33
As a result of this and other
legal actions, Newdow was now prohibited from representing his daughter as her “next
friend” in his case regarding the Pledge. He was now compelled to assert his standing as
her parent and could no longer claim to represent her directly.
34

Banning then asked the Ninth Circuit to review Newdow’s standing in Newdow I
in light of the changes in his custodial status. In December 2002 the Court revisited its
ruling based on the new custodial situation and determined that Newdow still had
standing. The Ninth Circuit asserted that California law permits the non-custodial parent
to educate his or her children about his or her particular religious points of view.
Moreover, the court stated that government cannot indoctrinate a child with religious
points of view that are objected by either a custodial or non-custodial parent.
35

At the same time, the Ninth Circuit amended its initial ruling, focusing solely on
the school district policy that mandated the daily recital of the Pledge and avoiding
115
comment on the Congressional act that added “Under God”. Judge Goodwin, again
writing for the majority, declared that the district policy was unconstitutional because it
conveyed a message of a government endorsement of religion, and more specifically, a
belief in God. Goodwin intoned that even when minority beliefs are unpopular and
despised they are entitled to the same protections as those of the majority. Moreover,
Newdow had a right to show constitutional concern for this practice, because it conveyed
the notion that her “father’s beliefs are those of an outsider, and necessarily inferior to
what she is exposed to in the classroom.”
36
Judge Fernandez, who vociferously dissented
to the initial Pledge decision, agreed with the court’s determination regarding Newdow’s
Article III standing to bring this case, but maintained his opposition to the holding on the
Pledge itself.
37

Following Newdow I, other justices on the Ninth Circuit requested a vote on a
hearing before the full court (en banc). However, the dissenting justices failed to gain a
majority of the justices to agree to an en banc hearing so the request was denied. Several
justices then attempted to appeal the decision by contending that the matter was so
important and the result so erroneous that it required a full hearing of the court. In
Newdow III, that motion was denied by Justice Reinhardt, who pointed to Supreme Court
precedent that supported the decision in this case. Moreover, he also declared to the
Court that no matter how unpopular a minority opinion might be, or no matter how vocal
public outrage might be about a decision, it was the duty of judges to uphold the law that
protects unpopular minorities from the public opinion of the majority.
38

Following this decision, in 2003, Newdow took further action on the child custody
issue. He obtained an order of joint legal custody, which would be in effect at the time
116
his case reached the Supreme Court but was not in effect when the Ninth Circuit heard
Newdow II.
39
However, because he did not have legal custody of his daughter at the
time he brought the challenge, the Supreme Court would have to render a ruling based on
his custodial status during Newdow II. Meanwhile, the EGUSD appealed Newdow II to
the Supreme Court.
Newdow is Denied Standing
In 2004, a divided Supreme Court decided the matter by avoiding the constitutional
merits of Newdow’s claim altogether.
40
Writing for the majority, Justice Stevens
declined to rule on the Pledge issue, stating that Newdow lacked prudential standing.
41

The Court described Prudential standing as “judicially self-imposed limits on the exercise
of federal jurisdiction”
42
, which he described as:
…the general prohibition on raising another person’s legal
rights, the rule barring adjudication of generalized
grievances [better] addressed in the representative
branches, and the requirement that a plaintiff’s complaint
fall within the zone of interests protected by the law
invoked.
43

Using this definition of Prudential Standing, the majority of the Supreme Court in
Newdow denied him standing in this case. Stevens essentially declared the Ninth Circuit
to be wrong in its determination regarding his standing. He found that because Banning
had the final say, because she ardently disagreed with Newdow on this matter, and lacked
standing because he could no longer represent his daughter.
As a result of the Court’s decision to reject the Ninth Circuit Decision based on
standing alone
44
, the Pledge of Allegiance as currently recited in the nation’s schools
continues to contain the words “Under God”, and the valid Establishment argument
117
raised by Newdow remains unanswered.
45
Remarkably, the Ninth Circuit decision still
holds because it was not over-ruled and thus it is cited as precedent in courts under that
Circuit Court’s jurisdiction, a point I will discuss in greater detail later in the chapter.
46

The Supreme Court’s dicta
47
on the Pledge Issue
In its arguments before the Supreme Court, the EGUSD focused on Newdow’s lack
of standing as well as the history of the Pledge. Moreover, they called the 50-year old
version of the Pledge containing the words “Under God”, “a patriotic exercise that is part
of an unbroken history of official government acknowledgement of the role of religion in
American life.”
48

These words seemed to have weighed heavily on the justices. Although the
Supreme Court did not directly render a decision on the Pledge, the statements of the
justices implicitly made it clear what they would have done had they tackled the subject
directly. At the heart of the Court’s declarations in Newdow were multiple references to
the ceremonial deism that had long been a part of the nation’s traditions that the EGUSD
also alluded to.
The Court has often permitted public use of “religious discourse and symbolism”
49
,
such as the religious tone of Presidential Inaugurations, city-endorsed holiday displays on
public property
50
, and the daily chaplain exercise in the Nebraska Legislature.
51

Ceremonial deism has been held to be constitutional because it is alleged to have a long
history that can be traced to America’s earliest years and because it is said to honor that
nation’s history of public appeals and thanks to God. In the view of the Court, these
references have become so commonplace that they have been stripped of their religious
character and are viewed as secular and not religious acts.
118
In his decision for the majority, Justice Stevens wrote in support of the nation’s
need for patriotic exercises that “foster national unity and pride”.
52
He provided a brief
history of the Pledge of Allegiance, framing it in the context of a simple flag salute that
serves as a symbol of the nation’s concepts of liberty, equal opportunity and religious
tolerance. Without mentioning the religious background of the 1954 Congressional law
that he himself quotes, he justified the words “Under God” by quoting the words from the
House Report in the act that made “Under God” law: “our nation was founded on a
fundamental belief in God”.
53

In a concurring opinion, Justice Rehnquist also focused on Ceremonial deism. He
provided a history of the nation’s long history of public recognition of God, detailing
such practices as Presidential references to God in inaugural addresses, Presidential
Thanksgiving Proclamations, and the National Motto “In God We Trust” on United
States’ coinage.
54
Because “examples of patriotic invocations of God and official
acknowledgements of religions role in our Nation’s history abound”
55
, Rehnquist denied
that the Pledge was a religious exercise. He viewed the practice as merely patriotic since
it did not refer to “any particular God, faith or church.
56
As a result, he claimed that it
was not prayer, and as such, the ruling would not run counter to earlier decisions that
prohibited sectarian prayer at public school graduations.
57
He argued that as long as
these public ceremonies invoking God remained non-sectarian, symbolic and lacked an
endorsement of a specific theological creed, it qualified as ceremonial deism and was
therefore constitutional.
58

In another concurring opinion, Justice O’Connor recommended her own
endorsement test as the best method to gauge whether or not a practice violates the
119
Establishment Clause. O’Connor’s earlier synopsis of the endorsement test is that a
practice is unconstitutional if it:
…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 community”.
59

Applying that test (but not the other tests that the Ninth Circuit used to rule that the
Pledge was unconstitutional), she declared that the Pledge of Allegiance did not
constitute a state endorsement of religion.
60
Unfortunately, O’Connor’s analysis of the
Pledge does not consider that a statement that refers to God in a classroom setting would
actually confer outsider status on those who do not believe in that God. O’Connor went
on to argue that because the generic God invoked in the Pledge was not problematic
because the God referred to is neither Jesus, or Vishnu or Zeus or any other God of a
specific religion.
61
Like Stevens and Rehnquist, she also relied on the specter of history,
asserting that the court had to evaluate the constitutionality of the Pledge in light of “its
origins and context”, noting that practices such as the Pledge and other intermingling of
religion and state have long had a place “in our Nation’s cultural landscape”.
62

Justice Thomas, in a third concurring opinion, was the only justice to tackle
Establishment Clause precedent with candor. To his credit, he admitted he had difficulty
grappling with the logic that the words “Under God” were not a public affirmation of
God’s existence under current stare decisis. In his view, Supreme Court holdings
rendered it an unconstitutional violation of previous Establishment Clause
jurisprudence.
63
Fortunately for him, he disagrees with Supreme Court precedent. His
stance in Newdow was that the Supreme Court had previously created questionable
120
precedent in prohibiting government practices that seemed to “take a position on matters
of religious belief”.
64
In fact if Thomas had his way, the meaning of the Establishment
Clause would be returned to a simple prohibition against Congress creating a national
religion or interfering with state establishments.
65
Nevertheless, it is interesting that he
was the lone justice who found that the decision in Newdow did not conform to previous
precedent.
Analysis of the Court’s dicta
Justice Thomas was correct in his assessment of previous precedent. Apart from
Justice Thomas, who might toss out much Establishment Clause precedent, the Supreme
Court’s own stare decisis should have given the justices pause. In fact, the Court had
previously taken strong positions on many of the issues raised in Newdow. The Court’s
opinions here were contradicted by many of their earlier statements in other cases, as this
section will discuss.
Children have special protections
The Court had historically paid special attention to school children who are
believed to be especially vulnerable to coercion in the enclosed environment of the
classroom.
66
In the decision that outlawed school Bible reading, Abingdon v. Schempp
(1963)
67
, the Court acknowledged the vulnerability of children to peer-pressure. It
recognized that children would be unlikely to single themselves out by protesting the
Bible reading, because “children are disinclined at this age to step out of line or flout
‘peer-group norms’”. For that reason, children needed the added protections offered
under Establishment Clause jurisprudence. Instructively for the Newdow case, the Court
in Abingdon v. Schempp made a marked distinction between adults and children put in a
121
similar situation. It was the court’s perception that adults are less likely to be coerced in
situations, such as prayer sessions in Congress, because they are not penalized for being
absent from such proceedings.
68
Students, on the other hand, must be in school. Studies
available to the Court at the time showed how susceptible children were to group
pressures, as well as the likelihood that those children who are “forced by conscience to
leave the room during such exercises would be placed in a position inferior to that of
students adhering to the State-endorsed religion.”
69

Subsequent decisions reinforced the idea that schoolchildren deserve special
attention because of the weight of pressure from their cohorts. In Lee v. Weisman
(1992)
70
the Court disallowed a sectarian prayer at a graduation ceremony because,
“Prayer exercises in elementary and secondary schools carry a particular risk of indirect
coercion”
71
especially where the children are essentially a captive audience. In Santa Fe
School District v. Jane Doe (1999)
72
, the Court overturned a local ordinance that
permitted student-led, student initiated prayer at football games that was clearly intended
to allow the majority of religious students to prevail, and for the minority to always be
precluded from having a say in the matter. The court found that the practice was coercive
and that since government officials approved the process, the students were acting with
the endorsement of local government.
73
There were no factors presented in Newdow to
suggest that students in the EGUSD were faced with a different situation than what had
been previously declared unconstitutional.
De Minimus Establishments
The Court had also outlawed state-endorsed practices that had placed children in a
position of having to choose whether to participate in a practice, or face public scorn or
122
even ostracism. This rule applied even in situations that were as superficially de minimus
as a moment of silence.
74
In Wallace v. Jaffree (1985)
75
, the Court overruled an Alabama
moment of silence law because the enabling legislation had patently demonstrated
preference to one set of religious beliefs over another. In this case, Justice O’Connor
famously reiterated precedent from an earlier case involving a non-sectarian prayer to a
vague God, Engel v. Vitale (1962)
76
, and reinforced the unconstitutionality of those
situations, not unlike the one in Newdow where,
…the power, prestige and financial support of government
is placed behind a particular religious belief, the indirect
coercive pressure upon religious minorities to conform to
the prevailing officially approved religion is plain.
77

In a number of cases, such as Engel, Abington and Jaffree, the Court had made it
clear that the government could not show favoritism to one religion over another, or more
notably, to religious beliefs over non-religious beliefs. It had categorically ruled that
individual freedom of conscience is protected by the Constitution, and that individuals
must be free to practice their religion or no religion at all.
78

As in the Pledge, the reference to the generic God of Engel v. Vitale nevertheless
expresses a preference for a generic monotheism over atheism or non-theism. It assumes
that all those participating are comfortable with the God mentioned in the prayer or
Pledge. The assumption is that God belief is the normative creed, and that all should find
a way to fit it into their beliefs. The Court had previously rejected such contentions as
being violations of the Establishment Clause.

123
Ceremonial Deism
When the Newdow Court focused on ceremonial deism, it ignored the differences
between the pressures experienced by a child who is required to sit with his peers in a
closed classroom setting and adults in other situations. The Supreme Court that upheld
the daily chaplain prayer in the Nebraska legislature made this distinction clear. While it
approved the chaplain ritual using Ceremonial deism for its reasoning, it made sure to
clarify that this exercise involved “mature adults who may presumably absent themselves
from such public and ceremonial exercises without incurring any penalty, direct or
indirect."
79

Each of the examples of ceremonial deism listed by the Court, such as the
Presidential Inauguration, involved adults who, the Court has perceived, can choose to
participate or not without penalty. Presidents, whether to curry political favor, or
religious beliefs, or both, are not coerced into praising the Lord during their inaugural
address. All members of Congress, until 2007, were purportedly believers, so the
benedictions given in Congress probably did not affect them. Moreover, they can opt not
to be present during this ceremony. A child in a classroom setting cannot; she must be
present.
80

Protections for Atheists
Although it was difficult to see in Newdow dicta, atheism is a religious point of
view that had already been recognized to be entitled to the same freedoms as traditional
religious beliefs. Furthermore, the government could not decide which beliefs deserved
state approval and which did not. In Torcaso v. Watkins (1961)
81
, the Court made this
quite evident:
124
We repeat again and affirm that neither a State or Federal
Government can constitutionally force a person ‘to profess
a belief of disbelief in any religion.’ Neither can
constitutionally pass laws or impose requirements which
aid all religions as against nonbelievers, and neither can aid
those religions based on a belief in the existence of Gods as
against those religions founded on different beliefs.
82

Because the state cannot dictate the adoption of belief, atheists were no more required to
tolerate state prayers invoking God than Christians would be forced to tolerate state
endorsements of prayers that invoked Vishnu or Allah.
One federal court has gone so far as to declare atheism a “religion” by law. In
2005, Wisconsin inmate James Kaufman successfully won a claim against prison officials
who would not permit him to organize his own freethinkers study group, alleging that
atheism is not a religion. In his case, the Circuit Court of Appeals for the Eighth Circuit
declared that in fact he could because atheism is a religion “in this special sense” under
federal law.
83
While this case does not set precedent outside of the jurisdiction of the 8
th

Circuit, it does adhere to other Supreme Court precedent. Moreover, the Court had
already acknowledged that an atheist’s beliefs could be so vital to the individual that they
could function as a guiding principle in an individual’s life, akin to religion, thus
permitting atheists to declare conscientious objector status from the draft.
84

The Court has rejected history and tradition as a guide
Contrary to the Court’s dicta in Newdow about the importance of the history of the
century-old Pledge, the Court has previously held that the public popularity or historical
significance of certain activities or beliefs did not guarantee constitutionality. In the past,
the Court declined to use the historical dominance of certain religious majorities to rule in
favor of a particular practice because it was allegedly supported by history.
85
Moreover,
125
in Lawrence v. Texas (2003)
86
, the Court found a Texas law unconstitutional that
prohibited homosexual males from engaging in consensual sex in a private home. Here,
the Court asserted that the Court ruled that the history of laws prohibiting sodomy, as
well as societal disapproval of an unpopular group cannot be a “legitimate government
interest”.
87
This case is illustrative because it demonstrates that state governments
cannot dictate moral behavior or belief to unpopular minority groups. Moreover, it
demonstrated the Court’s willingness to reject previous precedent that permitted localities
to limit the activities of non-conformist individuals in the interest of modernizing the law
to keep pace with new developments.
88

Individuals cannot be compelled to say the Pledge
When the Elk Grove Unified School District codified California state law that
mandated a patriotic exercise into its schools’ daily routine, it opted to require the use of
the Pledge of Allegiance, although as already noted, California law does not explicitly
mandate its use. Hence, the EGUSD made a deliberate choice to require the use of the
word God in the classroom setting although the statute only states that the Pledge would
“satisfy” the requirement. In addition, neither the EGUSD nor California law specifically
stipulates that students cannot be compelled to participate and cannot be harassed if they
opt out of participation. Like California, not all states mandate the use of the Pledge but
some do have opt out clauses.
89

As the Supreme Court knows, schools are constitutionally forbidden from
compelling children to say the Pledge because of Supreme Court precedent from the
1940s that outlawed compelled speech. Before that time, states such as West Virginia
forced school children to recite the Pledge of Allegiance or face expulsion from school.
90

126
Jehovah’s Witness children of this era who refused to say the pledge were often
humiliated in school, and in one case, guardianship of the child was stripped from the
parents, because the judge determined that not reciting the pledge placed the “the child …
in danger of growing up to lead an idle, dissolute, immoral life”.
91
This was a deeply
religious issue for Jehovah’s Witnesses, who view the Pledge and the associated flag
salute as idolatry.
In West Virginia Board of Education v. Barnette (1943)
92
, which involved the
West Virginia statute mentioned above, the Court declared that individuals could not be
forced to repeat a Pledge that violated their religious beliefs. This decision overturned
years of precedent that had insisted that one’s duty to country
93
took priority over the
right to free exercise of religion.
94
In fact, just three years earlier, in Minersville School
District v. Gobitis (1940)
95
, the Court had ruled that one’s patriotic duty was more
important than individual religious convictions, especially when the law was not intended
to promote or limit religious beliefs.
96

As I have argued, Barnette underscores the key point here. No matter how
unpopular a minority’s beliefs or practices might be, they are entitled to First Amendment
protections. The safeguards intended to protect non-conformists from compelled speech
include not being compelled to say something one does not believe in. In this case, the
Court famously stated that freedom of thought and religion are vacuous if individuals are
not free to defer from practices that are counter to their spiritual beliefs.
97
Additionally,
in many other cases, it has ruled that states cannot criminalize the peaceful expression of
unpopular views.
98

127
Laws Must Have a Secular Purpose
Following Barnette, the practice was to allow children to decline from
participating in the Pledge of Allegiance. However, it is not sufficient that the school
district allows children with religious or objections to abstain from participating. For
example, as this chapter discussed earlier, the Court previously outlawed such de
minimus practices as a mandated moment of meditation or prayer in Alabama public
schools when the legislative record made it clear that the law was designed with a purely
religious purpose in mind.
99
Not unlike the Alabama moment of silence statute that the
Court overturned in Jaffree, the EGUSD’s administrative decision to require students to
participate in or opt out of a statement concerning a belief in God brings with it its own
set of problems that raise troublesome constitutional questions that the Court refused to
consider. As I noted above, none of the justices contested the fact that the words “Under
God” were included in the Pledge for a religious purpose, with the intent of showing
preference for theism over the USSR’s atheistic communism. Similar to the Alabama
statute overturned in Jaffree, the Pledge legislation also lacked the secular purpose
required under the law. Instructively, in Jaffree, Justice O’Connor considered state
action is unconstitutional when it:
…sends a message to nonadherents [sic] 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.
100

128
And that:

…Such an endorsement infringes the religious liberty of the
nonadherent… and, "[w]hen the power, prestige and
financial support of government is placed behind a
particular religious belief, the indirect coercive pressure
upon religious minorities to conform to the prevailing
officially approved religion is plain.
101

In Newdow, O’Connor failed to address how the Pledge in its current form fails to send
that very message of exclusion to non-adherents. Moreover, the Court also neglected to
explain how a Pledge that intentionally invokes God is not a religious act. Its answers
obfuscate the very pious nature of a Pledge that intones God’s name as the creator of the
nation’s fortunes. It is also difficult to understand why the reaction to the Ninth Circuit
case was so vitriolic if the reference to the God of the Pledge is purportedly not a prayer
and is not a religious exercise.
102

Based on Jaffree and other cases mentioned here, the Ninth Circuit had solid
reasons for its decision. The Supreme Court circumvented these matters when it ruled on
the standing issues alone. Although other federal courts had ruled that this version of the
Pledge was constitutional
103
, the Supreme Court had not chosen to hear such cases. As
in Jaffree, the intent of the legislation that inserted the words “Under God” was decidedly
religious.
Had the Court decided to rule on the matter, it had some tools at its disposal. If it
refused to outlaw the Pledge, it could have struck down the EGUSD policy because it
lacked a definitive proviso that insured that teachers did not harass or discriminate
students who did not participate. For example, in 1952 in Zorach v. Clauson
104
the Court
actually upheld a New York City released-time religious instruction program because the
129
statute’s regulations specifically instructed teachers on proper conduct regarding
children’s decision to participate or not participate in the program.
105

. By refusing to render a decision regarding the words, “Under God” in the Pledge of
Allegiance, the Court neglected to undertake a serious discussion of the inherently
religious nature of these words, as well as decades of Supreme Court precedent, such as
Jaffree, and some of the other cases discussed here. In Newdow, the Court failed to
grapple with its earlier concerns regarding peer pressures on children in the contained
setting of a classroom. Legal scholar Jesse Choper correctly noted in a 2004 essay:
…[in the] Pledge of Allegiance, Congress was
unquestionably motivated by a religious purpose. To
dismiss the phrase as trivial or ceremonial overlooks the
special compulsive influences that exist in the context of
public schools, which tend to induce schoolchildren to
recite the Pledge, thus meaningfully endangering their
religious liberty.
106

Newdow raised the question of whether “monotheism is consistent with
government neutrality toward religion.”
107
This is a valid question that deserved a better
answer than it received. Essentially, can the majority opinion on the question of God’s
existence still be allowed to dictate religious practices, no matter how “de minimus”
108
,
especially in the public school setting? Previous precedent would respond in the negative
to that question. Unfortunately, it appears that the Court is not ready to entertain the
notion that even so allegedly inconsequential a minority as atheists can have a “veto”
power over “those willing to participate”.
109
The justices seemed to be oblivious to the
nature of Mr. Newdow’s beliefs and his sincere contention that God does not exist.
The lack of seriousness that the Court gave to Newdow’s concerns has been
summarized in an excellent summary of the case’s oral arguments by legal scholar Joan
130
DelFattore. She observes that during oral arguments, several justices rebuffed Newdow’s
concerns, attempting to persuade him that the use of the name of the deity was not in
itself a religious exercise, while trying to convince him that he could find a way to come
to terms with the use of the word God.
110
DelFattore observes that the Court’s reaction
was reminiscent of the 19
th
century Court’s statements to religious minorities who
objected to the practices of majority adherents, essentially attempting to mollify him with
recommendations on how to live with the status quo.
111
Their point of view was that the
normative individual is a religious being who, even if they do not believe in God, can
merely substitute the deity or entity of their choice when the words are spoken in a class
or ceremony.
112

The Supreme Court justices seemed to miss the point of Newdow’s contention
and the logic of their precedents, continually arguing for the inclusion of “Under God”
since it “does not refer to a nation ‘Under Jesus’ or ‘Under Vishnu’ … a simple reference
to a generic ‘God’”.
113
However, for atheists, as well as for practitioners of Buddhism
and polytheism
114
, the required assertion of God’s reality is in fact, very much a religious
exercise, placing them in a situation of having to choose whether or not to swear
allegiance to their nation or forgo the Pledge because it goes against their very beliefs.
This is a perspective that the Court fails to grasp or that it does not wish to acknowledge.
The justices seemed to write as if they were addressing the concerns of a
religionist of any stripe, and not an atheist, someone who, by definition, does not believe
in the existence of any God. DelFattore comments that, as in the past, Newdow’s
minority point of view was dismissed by his opponents as “divisive” and the extent of
131
religious preaching “minimal”
115
, not dissimilar to the way that Newdow’s concerns were
treated here.
Problems with the Pledge in Practice
Presently, 39 of 50 states required some form of a patriotic exercise in the
elementary and secondary classroom setting.
116
Only one of the states requiring a daily
patriotic exercise allows school districts to use something other than the Pledge of
Allegiance, that state being California.
117
Since the Newdow II decision, eight states have
included a Pledge requirement in their statutes. Disturbingly, not all the states permit
children to defer from participating in the flag, and some require written permission from
the parent or guardian.
118

Inserting a statement about a deity into the Pledge may animate the debate
concerning the Pledge more than it already has because of the added element of religious
endorsement to an already revered patriotic practice.
119
The issue is even more sensitive
after 9/11. By requiring the Pledge, schools create a coercive environment that could
subject children who were “different” to ridicule and ostracism. There are some current
examples. A basketball player for Manhattanville College in New York City, who was
heckled at games because of her refusal to repeat the Pledge of Allegiance before each
game.
120
Margaret Downey lists reported but undocumented complaints from the parents
of children who have been harassed or discriminated against for refusing to say the Pledge
of Allegiance in some public schools.
121
In March 1998, a 13-year-old Jehovah’s Witness
was forced to stand outside in the rain after refusing to say the pledge. In April 1998 in San
Diego, a 16-year-old student was forced to serve detention for her failure to recite the
pledge.
122
In 2000 in Alabama, student John Michael Hutto, was forced to apologize to his
132
class because he refused to recite the Pledge.
123
In 2003, following 9/11, Colorado passed
a law requiring daily recitation of the Pledge of Allegiance by students and teachers. The
statute only permitted exceptions for religious reasons or “if a parent or guardian of the
student objects in writing to the recitation of the pledge on any grounds and files the
objection with the principal of the school.”
124
Three students and six teachers sued to
block the implementation of the law, and a U.S. district court judge agreed, citing earlier
precedent. A year later, Colorado again amended to statute to make the exercise
voluntary.
125

Newdow and Standing
The crux of the Newdow decision was its determination that Newdow lacked
Prudential Standing to bring the case. While the Supreme Court’s jurisprudence on
standing has been unsettled, one practice had been clear prior to Newdow. The United
States Supreme Court had customarily avoided deciding issues of family law that had
already been defined by the states, a fact Justice, Stevens himself noted, calling it the
“domestic relations exception”
126
He further stated that “it is appropriate for the federal
courts to leave delicate issues of domestic relations to the state courts.
127
Nevertheless,
the Court overruled the Ninth Circuit’s holding on Newdow’s standing. Chief Justice
Rehnquist wrote that precedent in this area should be maintained and was troubled that
the Court had now constructed “a novel prudential standing principle… in order to avoid
reaching the merits of the constitutional claim.”
128

The Supreme Court ruling has affected Newdow’s ability to file a claim on behalf
of a child over whom he has partial custody. In his next attempt to block the Pledge of
Allegiance, in 2005, Newdow was deprived of the right to sue on behalf of his daughter
133
because of the precedent set by a faulty Supreme Court ruling on standing that ignored
the California law that would permit him to sue because of his right to consult and
because he retains some custody of the child. It appeared from the text of the latest
District Court ruling that Newdow was stripped of any standing because now Prudential
Standing can only apply to those parents who have full custody and who have final
decision making authority over the children’s education.
129

Even though Newdow had won legal custody, he was now subject to the final say
of his daughter’s mother despite the ruling of the Ninth Circuit. Was this done because
Newdow happened to be a member of an unpopular minority who was involved in a
controversial, public case? Perhaps the future will provide more answers. Nevertheless,
by avoiding the constitutional issue, the Supreme Court has re-formulated its own
precedent that deferred to the state’s interpretation of the rights of non-custodial parents.
This rewriting of standing rules has been called “harmful” by one legal scholar, who also
noted that the decision is a step backward in that it propagates traditional stereotypes
about parenting roles, making the tacit assumption that men are less involved in
children’s lives than women.
130

Conclusion
In my view, The Newdow I decision by the Ninth Circuit Court was correct.
Unlike the Supreme Court, it was unwilling to dismiss Newdow’s complaint with appeals
to ceremonial deism. It recognized that those who do no believe in God have a right to
not be subjected to a majority religious practice that is contrary to their own deeply held
beliefs. Nor was it willing to use appeals to history when the Supreme Court’s own
precedent had already rejected historical tradition as the reasoning for allowing certain
134
practices to continue. Looking at all the tests that the Court had designed to detect
constitutional violations, the Ninth Circuit had no choice but to declare the Pledge
unconstitutional.
The Supreme Court has, for many decades now, abandoned the supremacy of
Christian traditions in its jurisprudence because Christianity is no longer viewed as the
dominant religious belief. Until Newdow, the Court did not satisfy itself by dismissing
the concerns of members of unpopular minority faiths. Yet, in Newdow, the Court
appeared to take a step back, holding that as long as the generic prayer doesn’t recognize
a specific God, it passes constitutional muster. However, for those who do not believe in
God, for non-theists or for those who believe in multiple gods, the Supreme Court’s
decision to take a pass on the case is problematic and is not inconsequential. The Pledge
with the words Under God is most definitely a government statement about a
monotheistic God, as Eisenhower’s signing statement made clear and as is also evident
from the intent of the bill that added these words to the Pledge. Furthermore, there is
nothing in the California Statute to regulate the behavior of teachers and to ensure that
they stay as neutral as possible. The fact that Mr. Newdow was unable to convince the
Court that the EGUSD policy violated Supreme Court precedent because it affected
children in a classroom setting seems to indicate that the full grant of freedoms that
would be available to a Muslim or a Christian in this situation might not be available to
atheists.
Interestingly, because Newdow II remained the precedent in all Ninth Circuit
states, in 2005 the Eastern District Court ruled that teacher-led recitation of the Pledge of
Allegiance in the EGUSD violates the establishment clause noting that “the school
135
district’s policy with regard to the pledge is an unconstitutional violation of the children’s
right to be free from a coercive requirement to affirm God.”
131
Surprisingly, the Ninth
Circuit decision provides some remedy, perhaps temporary, to the legal quandary created
by a Pledge that demonstrates government favoritism towards monotheists. As schools
represent a branch of the government, this practice is constitutionally troublesome. As
the group representing Buddhists stated so well in their Brief supporting Newdow’s
lawsuit against the Pledge, the Pledge of Allegiance places atheist children in the position
of having to choose between stating their loyalty to their country, or invoking the name of
a God in whom they do not believe.
132
Given what we know about the vulnerability of
children to peer pressure, this practice places school children in an untenable position that
seems to no longer be recognized by the Supreme Court of the early 21
st
century.

136

Chapter Four Endnotes
1
Justice Stephens, dissenting opinion, Boy Scouts of America v. Dale 530 U.S. 640 (2000): 700.

2
For the BSA federal charter, see United States Code Service, 36 USCS §30902. Boy Scouts of America.
“Boy Scout Oath. Boy Scouts of America. 5 October 2008 http://www.scouting.org/media/mission.aspx.

3
Codified in 4 U.S. Code §4 in 1954, the Pledge reads, “I pledge allegiance to the flag of the United States
of America, and to the republic for which it stands, one nation, Under God, indivisible, with liberty and
justice for all.” Also, 100 Cong. Rec2 1700/Feb. 12, 1954.

4
Adam Gamoran. “Civil Religion in American Schools”. Sociological Analysis 51 (1991): 235. Also,
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000 Buddhist
Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow, 2/12/04: 3.

5
Elk Grove Unified School District v. Newdow 542 U.S. 1 (2004). The challenge to the Pledge of
Allegiance was brought by atheist Michael Newdow. As this chapter will discuss, the Supreme Court
declined to rule on the constitutionality of today’s Pledge of Allegiance, instead electing to declare that
Newdow lacked standing to bring the case.

6
Newdow v. U.S. Congress 292 F.3d 597 (9
th
Circuit 2002).

7
Charles Russo. “The Pledge of Allegiance: Patriotic Duty or Unconstitutional Establishment of
Religion?”. School Business Affairs 69 (2003): 23.

8
Charles Russo. “The Pledge of Allegiance: Patriotic Duty or Unconstitutional Establishment of
Religion?”: 23.

9
Charles Russo. “The Pledge of Allegiance: Patriotic Duty or Unconstitutional Establishment of
Religion?”: 23.

10
Charles Russo. “The Pledge of Allegiance: Patriotic Duty or Unconstitutional Establishment of
Religion?”: 23.

11
Public Law 623, Ch. 435 §7, 56 Stat. 380 (1942). Angie A. Welborn. The Constitutionality of
Including the Phrase ‘Under God’ in the Pledge of Allegiance. Washington, D.C.: Congressional Research
Service, 2004. CRS-1, n. 1.

12
The Cold War occurred from about 1946 to 1991.

13
For details on the proper manner in which to say the Pledge, and other details regarding flag salutes, see,
John R. Luckey. The United States Flag: Federal Law Relating to Display and Associated Questions.
Washington, D.C.: Congressional Research Service, 2008. CRS-2.

14
Charles Russo. “The Pledge of Allegiance: Patriotic Duty or Unconstitutional Establishment of
Religion?”: 23.

15
Quoted in Derek Davis. “The Pledge of Allegiance and American Values”. Journal of Church and State
45 (2003): 661.
16
100 Cong. Rec. 1700 (1954). Paraphrased by Justice Rehnquist in Elk Grove Unified School District v.
Newdow 542 U.S. 1 (2004). 25.

137

17
Derek Davis. “The Pledge of Allegiance and American .Values”: 667. Following the Ninth Circuit
decision, eight more states mandated some form of patriotic exercise. Disturbingly, not all allowed
exceptions for those who did not wish to pledge the flag.

18
California Education Code §52720, (Chapter 1010, Statutes of 1976 [West’s Annotated California
Codes, Thomson/West, 2006]). This statute superseded California Education Code §5211 [Chapter 254,
Statutes of 1961], which contained the same wording with a minor editorial change. Ralph N. Kleps,
compiler. Statutes of California 1960 and 1961, Volume 1 1961: chapters 1-1267 1281.

19
For more history of the evolution of the Pledge of Allegiance, see Katherine A. Meng. “In Light of Elk
Grove Unified School District v. Newdow, Where Does the Court Stand on Standing? Widener Law
Journal 24 (2005): 1023. A history of the Pledge is also provided in Elk Grove Unified School District v.
Newdow 542 U.S 1: 6-7.

20
The name of the daughter has not been made public.

21
Newdow v. U.S. Congress 292 F.3d 597 (9
th
Circuit 2002): 597-598.

22
Newdow v. U.S. Congress 292 F.3d 597 (9
th
Circuit 2002): 597-598.

23
The courts cannot order Congress to redraft legislation due to the Speech and Debate Clauses in the
Constitution. Newdow v. U.S. Congress 328 F.3d 466 (9
th
Circuit, 2003): 467.

24
There are presently three tests still used by the Court to determine if violations have occurred. The three-
prong test set forth in Lemon v. Kurtzman 403 U.S. 602, 612-13 (1971) which states that to be
constitutional, a law must a) be secular in purpose, b) it cannot actively advance or hinder religions and c) it
cannot encourage entanglement between religion and the state. In the "endorsement" test, first articulated
by Justice O'Connor in her concurring opinion in Lynch v. Donnelly 465 U.S. 668 (1984): 668, the
government is prohibited from appearing to endorse any one religion or no religion at all. The"coercion"
test first used by the Court in Lee v Weisman elaborated on these earlier decisions and noted that peer
pressure that children are subjected to: “Prayer exercises in elementary and secondary schools carry a
particular risk of indirect coercion”, in declaring a Providence, RI practice of allowing clergymen to give
benedictions at graduation ceremonies, in this case, a Rabbi, because the audience is a captive audience.
Lee v. Weisman 505 U.S. 575: 578. Cited in Newdow v. U.S. Congress 292 F.3d 597 (9
th
Circuit 2002):
597-599. The Ninth Circuit asserted that the Pledge failed all three tests and was deemed to represent an
impermissible state endorsement of religion.

25
The text of the Pledge reads, “I pledge allegiance to the Flag of the United States of America, and to the
Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” . 4 U.S.
Code §4.

26
See Elk Grove Unified School District v. Newdow 542 U.S. 1 (2004). 25. Rehnquist, concurring
opinion. Also. Katherine Meizel. “A Singing Citzenry: Popular Music and Civil Religion in America”.
Journal for the Scientific Study of Religion 45 (2006): 499.

27
Newdow v. U.S. Congress 292 F.3d 597 (9
th
Circuit 2002): 599.

28
Newdow v. U.S. Congress 292 F.3d 597: 612-15.

29
Angie A. Welborn. The Constitutionality of Including the Phrase ‘Under God’ in the Pledge of
Allegiance: CRS-4.

138

30
Angie A. Welborn. The Constitutionality of Including the Phrase ‘Under God’ in the Pledge of
Allegiance: CRS-4 n4. The attempt of the Senate to intervene was struck down by the Ninth Circuit in a
procedural motion by that court in December 2002.. Newdow v. U.S. Congress 313 F.3d 495 (2002).

31
Angie A. Welborn. The Constitutionality of Including the Phrase ‘Under God’ in the Pledge of
Allegiance: CRS-4.

32
Angie A. Welborn. The Constitutionality of Including the Phrase ‘Under God’ in the Pledge of
Allegiance: CRS-1.

33
Newdow v. U.S. Congress 313 F. 3d 500 (9
th
Circuit, 2002).

34
Newdow v. U.S. Congress 313 F. 3d 500. 502.

35
Newdow v. U.S. Congress 313 F. 3d 500. 501.

36
Newdow v. U.S. Congress 313 F. 3d 500. 505. Emphasis in the original.

37
Newdow v. U.S. Congress 313 F. 3d 500. 505-506. Article III standing must meet these requirements:
the claimed injury is concrete, actual or imminent (i.e., not hypothetical) and there is a causal link between
the injury and the challenged conduct.

38
Newdow v. U.S. Congress 328 F.3d 466 (9
th
Circuit, 2003. 470-71.

39
Dahlia Lithwick. “Guardian Knot”. 26 American Lawyer (2004): 186.

40
Justice Stevens wrote the majority decision and was joined by Justices Kennedy, Ginsberg, Breyer and
Souter joined. Separate concurring opinions were written by Justices Rehnquist, O’Connor and Thomas,
all of whom disagreed with Stevens’ ruling on standing and thought that there was sufficient evidence to
rule on the merits of the case, that the Pledge does not violate the Establishment Clause of the Constitution.
Justice Scalia did not participate in the decision on this case.

41
As I noted earlier, the Ninth Circuit ruled that Newdow had Article III standing.

42
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004): 12.

43
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004): 12.

44
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004): 12.

45
As this chapter will later discuss, because the Court never overturned the Ninth Circuit’s decision about
the unconstitutionality of the EGUSD policy, that case still sets precedent in Ninth Circuit Courts. Newdow
v. Congress (No. Civ. S-05-17) (E.D. Cal.)(9/14/05) .

46
In Mr. Newdow’s latest lawsuit against the Pledge of Allegiance, he prevailed in the Eastern District
Court of California because the District Court of California applied precedent to rule that teacher-led
recitation of the Pledge of Allegiance in the EGUSD violated the Establishment Clause and was
unconstitutional. However, because of the precedent established by the Supreme Court regarding his
standing, U.S. District Judge Lawrence Karlton also ruled that Newdow lacked prudential standing despite
having 30% custody of the girl. The case continues, however, because his co-litigants, the Does, were
determined to have standing. Newdow v. Congress (No. Civ. S-05-17) (E.D. Cal.)(9/14/05).

139

47
Black’s Law Dictionary defines judicial dictum (singular for dicta) as an opinion of the court that is not
essential to the decision. That is, it is not law. Bryan A. Garner, Editor in Chief. Black’s Law Dictionary,
Eighth Edition. 485.

48
Transcript of oral arguments in Elk Grove Unified School District v. Newdow. U.S Supreme Court. 24
March 2003. 5 October 2008 http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-
1624.pdf

49
Steven K. Green. “Symposium: A Second-Class Constitutional Right? Free Exercise and the Current
State of Religious Freedom in the United States: Religious Liberty as a Positive and Negative Right”.
Albany Law Review 70 (2007): 1453.

50
County of Allegheny v. ACLU 492 U.S. 573 (1989). This decision permitted the display of a Menorah
and a Christmas next to one another on public property in downtown Pittsburgh, but prohibited the display
of a crèche that had very clear religious messages attached to it. The Court reasoned that the Christmas
Tree is now considered a secular symbol of the holiday symbol. Moreover, its juxtaposition next to the
Menorah, along with a sign about “liberty” was more of a message about religious diversity and freedom of
belief than one endorsing specific religious practices.

51
Marsh v. Chambers 463 U. S. 783 (1983). Here, the Court upheld the Nebraska Legislature’s daily
invocation. The Court reasoned that because the practice involved adults who could opt out, and not
children, and because of a history of religion and government, the practice was not unconstitutional.

52
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004). 1, 6.

53
Elk Grove Unified School District v. Newdow 542 U.S 1. 1, 7.

54
Elk Grove Unified School District v. Newdow 542 U.S 1. 25-29.

55
Elk Grove Unified School District v. Newdow 542 U.S 1. 26, 31.

56
Elk Grove Unified School District v. Newdow 542 U.S 1. 31.

57
In Lee v. Weisman 505 U.S. 577 (1992) a school had required students to attend a graduation ceremony
where a Rabbi led a benediction during the ceremony. This was struck down as unconstitutional because of
the coercion effect; students were required to attend and as such were compelled by the school to hear a
message that had the appearance of state endorsement of a particular religion.

58
Derek Davis, “The Pledge of Allegiance and American Values”: 662-663.

59
From Wallace v. Jaffree cited in Elk Grove Unified School District v. Newdow 542 U.S. 1: 34. Wallace
v. Jaffree outlawed an Alabama moment of silence that was clearly intended to bring religion into the
classroom.

60
Elk Grove Unified School District v. Newdow 542 U.S 1 (2004). 34.

61
Justice O’Connor, concurring. She contended that because the Pledge does not evoke any specific God,
and that it was “a tolerable attempt to acknowledge religion and to invoke its solemnizing power without
favoring any individual religious sect or belief system”. Elk Grove Unified School District v. Newdow
542 U.S 1 (2004). 42.

62
Elk Grove Unified School District v. Newdow 542 U.S. 1. 35.

140

63
Justice Thomas, concurring, Elk Grove Unified School District v. Newdow 542 U.S 1 (2004). 48.

64
Thomas is quoting County of Allegheny v. American Civil Liberties Union 492 U.S. 573, 594 (1989).

65
Justice Thomas, concurring, Elk Grove Unified School District v. Newdow 542 U.S 1 (2004). 49, 52.
Thomas would only deem unconstitutional those practices that forced individuals, through the threat of
penalties or other government action, to attend or financially support the state-sponsored church, or
compelled observation of the Sabbath, a requirement in some states and towns as late as the early
nineteenth century.

66
In Lee v. Weisman 505 U.S. 577 (1992), the Court ruled unconstitutional a Rabbi’s invocation at a
graduation ceremony, writing that “the psychological pressure on 14-year olds was the constitutional
equivalent of legal coercion.” Cited in Abner S. Greene. “The Pledge of Allegiance Problem”. Fordham
Law Review 64 (1995): 451.

67
Abington Township v. Schempp 374 U.S. 203 (1963).

68
Abington Township v. Schempp 374 U.S. 203 (1963). 299-300.

69
The court here was quoting from the California Attorney General, who had already determined that
classroom devotional exercises were unconstitutional. Abington Township v. Schempp 374 U.S. 203. 291-
292.

70
Lee v. Weisman 505 U.S. 577 (1992).

71
Lee v. Weisman 505 U.S. 575 (1992). 578.

72
Santa Fe Independent School District v. Jane Doe 530 U.S. 290 (1999).

73
Santa Fe Independent School District v. Jane Doe 530 U.S. 290 (1999).

74
Wallace v. Jaffree 472 U.S. 38 (1985). 42, the father of the children bringing the complaint about the
moment of silence expressed his children’s fear that if they did not participate in the teacher-led prayer
sessions, they would be ostracized by classmates.

75
Wallace v. Jaffree 472 U.S. 38 (1984). Outlawing mandatory moments of silence such as the one in
Alabama public schools.

76
Engel v. Vitale 370 U.S. 421 (1962). 421-22 outlawed a non-sectarian prayer developed by the New
York State Regents even thought “the prayer is denominationally neutral and pupils who may wish to do so
may remain silent or be excused from the room…” The God invoked in the prayer was a generic God, not
unlike the God of the Pledge.

77
Wallace v. Jaffree 472 U.S. 38 (1984). 70.

78
Engel v. Vitale 370 U.S. 421: 429; Wallace v. Jaffree 472 U.S. 38 (1984). 48 and others; Abington
Township v. Schempp 374 U.S. 203 cites various precedent supporting the right of conscience.
79
It was due to this reasoning that the Court upheld the Nebraska Legislature’s daily invocation. The Court
reasoned that because the practice involved adults who could opt out, and not children, and because of the
history of religion and government, the court did not find the practice unconstitutional. Marsh v. Chambers
463 U. S. 783 (1983).

141

80
As I have personally observed in at least one elementary school in the Sacramento Unified School
District in Sacramento, California, the Pledge is quickly introduced over the public address system by the
principal and is led by a student. This often occurs in the middle of a classroom exercise. A child in the
classroom who wished to leave during the exercise would have to make his or her absence quite
conspicuous as he or she exited the room.

81
Torcaso v. Watkins 367 U.S. 488 (1961).

82
Torcaso v. Watkins 367 U.S. 488 (1961). 395.

83
Kaufman v. McCaughtry 419 F. 3d 867 (8
th
Circuit 2005).

84
Welsh v. U.S. 398 U.S. 333 (1970). Previous law permitted only men of certain listed religious beliefs to
be accorded conscientious objector status. This decision allowed atheists to successfully apply for
conscientious objector status.

85
In Wallace v. Jaffree, O’Connor asserted, “At one time it was thought that [religious freedom] merely
proscribed the preference of one Christian Sect over another, but would not require equal respect for the
conscience of the infidel, the atheist or the adherent of a non-Christian faith such as Islam or Judaism”.
This decision outlawed mandatory moments of silence in public schools that were clearly intended, by the
legislative record, to inculcate religion into the schools.

86
Lawrence and Garner v. Texas 539 U.S. 558 (2003).

87
Lawrence and Garner v. Texas 539 U.S. 558 (2003). 583. Justice O’Connor again, concurring in the
decision.

88
Lawrence actually over-ruled a 1986 decision that allowed a Georgia sodomy law to stand because of the
state’s purported interest in curbing individual morality. Bowers v. Hardwick 478 U.S. 186 (1986). It also
acknowledged changes in international law that had granted more rights to same sex couples, noting that it
was imperative for the United States to look to its allies for clues on how to develop policy regarding
allegedly unpopular minorities. I will discuss this case in greater detail in Chapter Five.

89
Derek Davis. “The Pledge of Allegiance and American Values”: 667. Following the Ninth Circuit
decision, eight more states mandated some form of patriotic exercise. Disturbingly, not all allowed
exceptions for those who did not wish to pledge the flag.

90
West Virginia Board of Education v. Barnette 319 U.S. 624 (1943).

91
Jerry Bergman. “The Modern Religious Objection to the Mandatory Flag Salute in America: A History
and Evaluation”. Journal of Church and State 39 (1997): 215-236.

92
West Virginia Board of Education v. Barnette 319 U.S. 624 (1943).

93
For example, in The Selective Draft Law cases of World War I, the Court categorically denied
conscientious objector status to men whose religious beliefs led them to a pacifistic stance on World War I
simply because their churches were not officially recognized as pacifistic. Selective Draft Law Cases, 245
U.S. 366 (1918). In denying relief in these cases, the court held that the need for the state to raise an army
during war did not conflict with “the constitutional guarantees of religious liberty” and stated that the duty
to fight in a just war outweighed individual liberties. In 1864, the Union and Confederate governments
gave exemptions to two old-line pacifist faiths: the Quakers and Mennonites. These were the only two

142

churches that in 1917 were still for exemption from conscription. See Ronald B. Flowers. That Godless
Court? Supreme Court Decisions on Church-State Relationships. 56-57.

94
Barnette over-ruled a 1940 case Minersville School District v. Gobitis that perpetuated the then-reigning
orthodoxy that national unity transcended religious beliefs, and hence, required Jehovah’s Witnesses to say
the Pledge. Minersville School District v. Gobitis 310 U.S. 586 (1940).

95
Minersville School District v. Gobitis 310 U.S. 586 (1940).

96
Minersville School District v. Gobitis 310 U.S. 586 (1940).

97
West Virginia Board of Education v. Barnette 319 U.S. 624 (1943).

98
Edwards v. South Carolina 372 U.S. 229 (1963). 237. This case concerned the conviction of a group of
individuals who peacefully protested the state’s policy of segregation on the grounds of the State Capitol.
The Court overturned the convictions.

99
Wallace v. Jaffree 472 U.S. 38 (1985) overruled an Alabama statute that mandated a one minute moment
of meditation or prayer in public schools. The legislative record demonstrated that the law’s purpose was
to instill religion in the classroom, which was the central reason that the Court struck down the law.

100
Wallace v. Jaffree 472 U.S. 38 (1985). 69.

101
Quoting from Engel v Vitale. Wallace v. Jaffree 472 U.S. 38 (1985). 69.

102
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04. 28.

103
Sherman v. Community Consol. School Dist. 21 of Wheeling Tp., 980 F.2d 437 (7th Cir. 1992). Here,
the court rejected a father’s claim that the pledge violated his son’s First Amendment right to freedom of
religion. As this Court argued, the 7
th
Circuit Court used the ceremonial deism argument to rule that the
phrase “under God” was a merely patriotic statement rather than a statement about religious beliefs. This
court also argued that because participation in the exercise was not mandatory, the practice was
constitutional. The Ninth Circuit disagreed with this decision because it failed to use the three tests to
come to its conclusion.

104
Zorach v. Clauson 343 U.S. 306 (1952). New York City permitted students to leave schools for
religious instruction. Detailed regulations mandated that the classes were to be held off-campus, and
stipulated that the school had to maintain perfect neutrality with respect to these classes.

105
Zorach v. Clauson 343. U.S. 306 (1952): 308n1.

106
Jesse Choper. “One Nation Under God: Is the Pledge of Allegiance unconstitutional?. University of
California at Berkeley. 24 March 2004. 13 December 2006
http://www.berkeley.edu/news/media/releases/2004/03/24_choper.shtml

107
Joan DelFattore. “What is Past is Prelude: Newdow and the Evolution of Thought on Religious
Affirmations in Public Schools”. Symposium: Law and Religion: Part Two of Two - University of
Pennsylvania Journal of Constitutional Law 8 (2006): 642.

143

108
Justice Fernandez, concurring and dissenting in the Ninth Circuit decision, claimed that “Under God”
was merely a minimal violation of the Establishment Clause and should not be declared unconstitutional.
Newdow v. U.S. Congress 328 F.3d 466. 492.

109
Justice Rehnquist, concurring, Elk Grove Unified School District v. Newdow 542 U.S 1 (2004). 32.

110
Derek Davis. “The Pledge of Allegiance and American Values”: 655.

111
Joan DelFattore. “What is Past is Prelude: Newdow and the Evolution of Thought on Religious
Affirmations in Public Schools”: 651.

112
Joan DelFattore. “What is Past is Prelude: Newdow and the Evolution of Thought on Religious
Affirmations in Public Schools”: 648.

113
Justice Sandra Day O’Connor in Elk Grove Unified School District v. Newdow 542 U.S 1 (2004). 31-
32.

114
Martha Nussbaum. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality.
New York: Basic Books, 2008. 5.

115
Joan DelFattore. “What is Past is Prelude: Newdow and the Evolution of Thought on Religious
Affirmations in Public Schools”: 645.

116
Derek Davis,.“The Pledge of Allegiance and American Values”.

117
California Education Code §52720.

118
Derek Davis. “The Pledge of Allegiance and American Values”.

119
As I already noted, prior to the Supreme Court ruling that barred mandatory participation in teacher-led
Pledge exercises, children who did not agree to the pledge were often humiliated in school because they
would not take a Pledge that had been written only 50 years earlier. Jerry Bergman. “The Modern
Religious Objection to the Mandatory Flag Salute in America: A History and Evaluation”: 215-236.

120
Martha Packerell. “Free Speech: You Have the Right to Speak Out, But So Does Everyone Who
Disagrees With You”. Time for Kids 8. 15 March 2003.

121
Margaret Downey. Anti-Discrimination Support Network. Philadelphia: Freethought Society of
Greater Philadelphia, 2006, instances E-0004 through E-0034, which also lists problems in schools and
universities. Downey collects largely anonymous complaints from atheists of personal discrimination. The
complaints are not verified.

122
David L. Hudson, Jr. “Pledge of Allegiance”. First Amendment Center. November 2005. 28 May
2008 http://www.firstamendmentcenter.org/speech/studentexpression/topic.aspx?topic=pledge.

123
David L. Hudson, Jr. “Pledge of Allegiance”. First Amendment Center. November 2005. 28 May
2008 http://www.firstamendmentcenter.org/speech/studentexpression/topic.aspx?topic=pledge.

124
David L. Hudson, Jr. “Pledge of Allegiance”. First Amendment Center. November 2005. 28 May
2008 http://www.firstamendmentcenter.org/speech/studentexpression/topic.aspx?topic=pledge.

125
All instances are reported in David L. Hudson, Jr. “Pledge of Allegiance”.

144

126
Elk Grove Unified School District v. Newdow 542 U.S. 1. 12.

127
Elk Grove Unified School District v. Newdow 542 U.S. 1. 13.

128
Justice Rehnquist, concurring opinion Elk Grove Unified School District v. Newdow 542 U.S 1 (2004):
18.

129
Newdow v. Congress (No. Civ. S-05-17) (E.D. Cal.)(9/14/05): 19-20.

130
Gloria Chan. “Reconceptualizing Fatherhood: The Stakes Involved in Newdow”. Harvard Journal of
Law and Gender 28 (2005): 468 and 471.

131
Gloria Chan. “Reconceptualizing Fatherhood: The Stakes Involved in Newdow”: 468 and 471.

132
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04.

145
Chapter 5
Policy Prescriptions: American and European Union Jurisprudence on

Protections For Atheists

Introduction
The prior chapters touched upon Supreme Court precedent prior to Dale and
Newdow that granted broad protections to atheists and other non-conformists both with
regards to freedom of conscience as well as the right to be free from discrimination in
certain settings. Since World War II, laws that specifically elevated one form of religious
belief over another as well as government actions that overtly targeted unpopular
minorities such as Jehovah’s Witnesses were struck down as unconstitutional. Along
these lines, statutes that prohibited atheists from testifying in court or holding public
office were struck down as unconstitutional.
For the past sixty years, the Supreme Court had operated using a First Amendment
jurisprudence that protected non-traditional religions, including atheistic and non-theistic
beliefs. The nation’s earlier history of allowing one religious tradition to dominate was
not a sufficient reason for the promulgation of state laws that attempted to continue the
previous hegemony, such as the moment of silence law in Alabama.
1
During this time,
the courts had outlawed most appearances of a government-sponsored religious
establishment in public schools, no matter how de minimus. The courts had codified both
a freedom of religion and a freedom of “religion-based conscience”.
2
Individuals were
guaranteed the right to be free from compulsion to speak words with which they
disagreed, or even be placed in situations, especially in the schools, that forced them to
make choices that violated their conscience or face ridicule by their peers. Students could
146
not be coerced to be present in the classroom, a prayer meeting at work or at a graduation
ceremony while religious exercises were conducted. Nor could atheists be conscripted
into war, if their religious-like beliefs led them to oppose war, no matter how
untraditional those beliefs were.
3

Public acknowledgements of God have a long history in this country. However, the
post-World War II Supreme Court placed limits on the reach of these occasions. When
certain government-endorsed ceremonies were permitted, such as the chaplain exercise in
the Nebraska Legislature or the paid chaplains in Congress, it was under the rubric of
ceremonial deism. Such recognition, if public, was required to be non-sectarian and
largely secular in nature, such as the holiday display that appeared on public grounds in
Pittsburgh, PA.
4
In 2001, this new state of affairs was clear at the ecumenical 9/11 prayer
vigil at the National Cathedral, the alleged “National House of Prayer”
5
that included
invocations from religious leaders from a variety of religious traditions, not just Judeo-
Christian religions.
Unquestionably, Ceremonial deism is both controversial and confusing
6
but it has
typically had its place. It was generally allowed in situations where adult individuals
could theoretically choose not to be present, and in situations that largely involved
choices made by non-minors.
7
Individuals were not required to repeat any words that
were spoken or stand at attention, only remain respectful.
8
If religious references were
permitted in public places, the images that could be represented were believed to have
been stripped of their religious meaning, such as the Christmas tree that is considered a
secular representation of the holiday season or the God in “In God We Trust”.
9
For
example, cities have been ordered to eliminate overt religious symbols that demonstrate
147
specific sectarian bias, such as the Cross that adorned a public park in San Diego,
California.
10
Never before had ceremonial deism been utilized as the rationale to
continue a practice in the public schools that showed clear favoritism of one form of
religious belief over another.
Additionally, an organization’s claimed private status did not exempt it from the
strictures of the Civil Rights Act of 1964 if the organization publicized itself as open to
any segment of the population to which it appealed. Public accommodations had
previously been defined broadly. For example, the wide scope of the New Jersey statute
had been deemed good law when it was cited as the reason to compel the Jaycees and the
Little League to integrate women and girls as full members.
Dale and Newdow may be a step backwards for atheists. Both cases involved
different manifestations of America’s de facto Civil religion. It appears that atheists have
been forewarned that their alleged failure to recognize the de facto religion burdens them
with legalized discrimination by the publicly-backed Boy Scouts as well as permissible
expressions of monotheistic preference in the classroom in the form of the Pledge. While
the Supreme Court opinions on the history of the Pledge and Ceremonial deism in
Newdow did not set precedent
11
, there is cause for concern that these dicta could
eventually become law.
12
Previously, American laws had granted atheists the right to be
free from discrimination or coercion in a wide range of activities. For example, like other
Americans, they were to be free from discrimination in employment, had the right to
conscientiously object to the draft based on deeply-held personal principles, and could
expect that their children would not be placed in a coercive setting in a classroom. In the
21
st
century, atheists have arguably been put on notice that the rights available in many
148
areas may no longer apply to them, especially when they challenge the very religious
inclusion of the words “Under God” in the Pledge of Allegiance or wish to join the
embodiment of Civil Religion, The Boy Scouts.
Overview
In light of what might become a change in Supreme Court precedent in Newdow
and what is stare decisis in Dale, this section will review various remedies available in
both federal and international law for atheists who face similar challenges in the future.
The chapter will trace the history of the transformation in American law that eventually
accorded greater freedom even to that most disliked of all American minorities, atheists.
American law has come a long way from the days when atheists could be legally
excluded from jury service or from holding public office. Even if atheism is not a
religion, as the Court of Appeals for the Eighth Circuit has declared
13
, atheists have been
granted equal rights with other religions and religious groups under the law.
In federal law, the Civil Rights Act of 1964 (CRA) declared religion to be a
protected category in employment and in public accommodations. The chapter will
discuss several cases that demonstrated how atheists remained protected in employment.
Atheists can also defer from military conscription if their personal beliefs lead them to
the conclusion that they cannot fight in a war. Of course, non-believers (and other
minority religionists) are already protected by previous Supreme Court precedent already
discussed in Chapter Four that prohibited even de minimus semblances of religious
establishment, especially where schoolchildren are concerned.
Next the chapter will examine some legal and policy tools might be available to
possibly improve outcomes in the future. The section will provide possible policy
149
prescriptions for individuals who, in the future, face similar situations to what Dale and
Newdow faced. It will provide another quick overview of the very precedent that the
Supreme Court ignored in its statements in Newdow. Because the Ninth Circuit Newdow
decision relied on Court precedent and was not overturned, future litigants should not
overlook the Court’s own stare decisis because it neglected to do so in Newdow and
Dale.
Internationally, there are sources as well. Interested persons can examine stated
U.S. policy regarding international religious rights to see how actual U.S. policy
compares. Notably, the United States created its own monitoring agency, the U.S.
Commission on International Religious Freedom (USCIF).
14
Created in 1998, its charge
is to scrutinize the “freedom of thought, conscience and religion or belief abroad”.
15
The
United States’ validation of certain international rights guarantees, such as Article 18 of
the International Covenant on Civil and Political Rights, as well as Article 18 of the
Universal Declaration of Human Rights are highlighted on the USCIF homepage and are
an even stronger indication of U.S policy.
16

Finally, it would be useful to examine how some of our closest allies, especially
those in Europe, deal with the issue of religious toleration towards atheists. The courts of
other industrialized nations use frequent references to international law “to look to the
decisions of courts around the world for the insight they cast on the solution of common
problems.”
17
While there is disagreement in the Supreme Court as to the propriety of
applying international law
18
, some justices in the Supreme Court have stated that the
practices of our closest allies provide an example of best practices with regard to certain
rights affecting homosexuals, another unpopular minority group whose fortunes have
150
already been tied to atheists in the Boy Scouts cases. International law has been cited in
two significant Supreme Court cases that overturned laws and practices that were harmful
to individuals with disabilities and to homosexuals. For example, as part of his reasoning
for prohibiting the death sentence of a mentally retarded man, Justice Kennedy cited
international law to emphasize that the U.S. law should keep pace with its European
allies, where the execution of disabled persons is not permitted.
19
Case law from the
European Court of Human Rights was also cited in Lawrence v. Texas, which struck
down state laws illegalizing sodomy.
20

Finally, the chapter will offer some brief policy recommendations on ways to
amend some state statutes to insure that public accommodations are defined more
broadly. It will examine a possible strategy for amending California’s Jesse Unruh Civil
Rights Act to insure that future interpretations are more inclusive.
Background
First Amendment rights for atheists have expanded so broadly that courts have
upheld First Amendment freedoms for atheist inmates, although such individuals are
often denied other fundamental civil rights by states, such as the right to vote while in jail
or on parole for a felony.
21
Atheist prisoners have won several lawsuits against prisons,
succeeding in convincing the courts that they have been subjected to unequal treatment.
Typically a prisoner initiates litigation after prison officials have forbidden him from
forming an atheist meeting group, similar to the groups inmates of traditional religious
backgrounds are permitted to convene. Some prisoners have also been ordered to
participate in twelve step programs which require the recognition of a non-
denominational God
22
or face the loss of certain privileges. State and federal courts have
151
consistently ruled in favor of the prisoners, mandating that prison officials treat atheists
on par with inmates of other religious beliefs by accommodating those beliefs.
23

In New York State, an atheist convict in the state’s Orange County Department of
Probation was triumphant in his fight against coerced participation in an Alcoholics
Anonymous program in order to meet the terms of his probation.
24
The New York Court
cited an earlier decision from the Court of Appeals for the 7th Circuit decision as a basis
for its decision. In the previous holding, officials were informed that they must offer
prisoners more options than the religiously-inspired Narcotics Anonymous for the man’s
dependency issues. In this case, as well as in the Orange County case, the courts averred
that secular solutions for rehabilitation had to be available to the inmates.
25

In response to the case of an atheist who was not allowed to form his own
freethought group, the Court of Appeals for the Eighth Circuit Court has gone so far as to
declare that atheism is a religion. Here, the 8
th
Circuit Court of Appeals declared that he
had to be permitted to do so could because atheism is a religion “in this special sense”
under federal law. As in the other cases, state officials were reminded that atheism must
be treated like a religion for the purposes of First Amendment protections. The First
Amendment freedoms that Kaufman sought for his atheist group were considered to be
on an equal plane with those provided to prisoners of established religions.
26

The aforementioned decisions in favor of non-believing convicts are intended to
illustrate the present strength of First Amendment guarantees for atheists. While they
might be the most reviled of America’s minority groups, they are nevertheless guaranteed
the same protections as other citizens, even when serving time in prison or on probation.
152
These decisions owe their foundations to Religion Clause jurisprudence that has
evolved to provide very broad protections for both mainstream and non-traditional
religions including atheism. Despite an early refusal to recognize that the Bill of Rights
provided any direct protections to individuals, the Court has greatly expanded the reach
of the clauses to protect minority religionists from the appearance of a state establishment
of religion, and has allowed them the right to freely exercise the dictates of their
religious, or non-religious beliefs. In such instances at least, atheists have been given a
seat at the table along with other majority and minority religious practices and
viewpoints. While they remain largely un-welcomed as complete citizens by many
Americans, the law of the land classifies atheists as equal citizens with other Americans
with regard to their religious freedoms. This is especially true when the actors are public
entities, such as a prison, a public school or school district like the Elk Grove Unified
School district, or an entity that receives federal funds and benefits, such as the Boy
Scouts. This is exactly why the results of the Newdow and Boy Scouts cases were so
troubling.
The Evolution of Protections for Atheists
27

It is my contention that at the time of the Founding, church and state questions
were left to the individual states to determine. However, due to the flexible structure of
our Constitutional and changing religious and ethnic demographics, what occurred was
an eventual evolution of the Clauses into the broad protections provided today to
accommodate increased diversity.
28
This explains the contradictions between a 19th
century Supreme Court ruling stating that “we are a Christian people...”
29
and a
contradictory holding almost 100 years later, where the old religious hegemony was
153
declared to be outdated in this statement by Justice Sandra Day O’Connor: “that
[religious freedom] merely proscribed the preference of one Christian Sect over another,
[and] would not require equal respect for the conscience of the infidel, the atheist or the
adherent of a non-Christian faith such as Islam or Judaism”.
30
The Court has
unambiguously concluded that the individual freedom of conscience protected by the
First Amendment embraces “the right to select any religious faith or none at all.”
31

This was not always the situation in this country. As I have already discussed,
state laws that prohibited atheists from holding public office were not overturned until
1961 when Torcaso v. Watkins outlawed the practice of the religious test oath.
32
Nor
were atheists alone in being targeted by state laws, as many of the colonies and early
states had state establishments or only provided civil rights to members of the majority
religion.
A Change in American Law Regarding Religious Freedoms
Torcaso evolved out of close to forty years of Supreme Court jurisprudence that
progressively applied the rights embodied in the Constitution directly to individuals.
33
In
order to apply rights directly, the Court had to change the way that it approached previous
decisions that permitted states to make an internal determination as to religion and the
other rights in the Bill of Rights.
34
Beginning in 1925, the Court began the process of
incorporating the 14
th
and 15
th
amendments,
35
meaning that the Court recognized that the
Bill of Rights applied directly to individuals and could protect them from state actions as
well as federal ones. Contrary to earlier practices, the Court prohibits state practices that
violated individual rights.
36
Since that time, the Court has laid out very clear guidelines
for how public entities and places of public accommodation must treat individuals’
154
religious beliefs.
37
While Supreme Court jurisprudence is decidedly confusing when it
comes to some aspects of the church-state controversy, the courts have been quite clear
about how public entities, employers and public accommodations must treat dissenting
members of the public, whether religious or not.
The following section will, as briefly as possible, highlight the over-arching
results of the most seminal cases and laws in American law, with the purpose of
providing the outlines of what is purported to be current U.S. law and policy regarding
those freedoms accorded to atheists. Special attention will be given to the duties required
of public bodies and schools, as well as what are called public accommodations. This
legal background is critical to understanding exactly what needs to be done to rectify the
decisions in both Newdow and Dale.
Employment and Public Accommodation
In 1964, the U.S. Congress passed the Civil Rights Act of 1964 (CRA).
38
It was
initially intended to counteract the racial discrimination against African-Americans that
was rampant in many areas of the country at the time.
39
In fact, debates preceding the
passage of the act show the Congress was more focused on prohibiting racial
discrimination than religious discrimination, which was considered minimal. The
original law included religion but did not define what it meant by religion.
40
Eventually,
protections for freedom of religion were included to honor the traditions of the nation.
41

Congress clarified the guidelines concerning religion in 1972, guidelines that largely
benefited minority religions.
42
Interestingly, Congressional debates show that an attempt
to exclude atheists from the original law was floated, but rejected by Congress.
43

155
The purpose of the CRA is:
To enforce the constitutional right to vote, to confer
jurisdiction upon the district courts of the United States to
provide injunctive relief against discrimination in public
accommodations…to protect constitutional rights in public
facilities and public education…to prevent discrimination
in federally assisted programs…
44

Title VII of the CRA is arguably the most famous of all the sections.
45
It is the aspect of
the law that concerns discrimination in the workplace. The Equal Employment
Opportunity Commission is charged with enforcing Title VII along with several other
civil rights acts pertaining to employment, including the Americans with Disabilities
Act.
46
Religious belief is protected and individuals may not be discriminated against
due to their religion “in hiring, firing, and other terms and conditions of employment to
religious preference.”
47
The rule most certainly includes atheists and the un-churched as
protected entities. An employer may not harass, intimidate or discriminate against any
employee on the basis of her religious beliefs, or lack of belief.
48
This right against
discrimination has been upheld in a number of rulings, a few of which will be discussed
here.
EEOC v. Townley Engineering and Manufacturing Company (1988)
49
was initiated
by an employee who was forced to attend devotional exercises at work. After attending
the services for about two years, the employee, Louis Pelvas, complained to his
supervisor, stating that he was an atheist. He was granted no accommodations and told
that he must be present at the services, even if all he did was nap or read.
50
Pelvas
initiated a claim and then quit the company, alleging constructive discharge. The EEOC
filed suit against the employer, who counter-claimed that Townley was a religious
156
organization (the owners were Christians whose mission was to run a business inspired
by Jesus
51
) and thus exempt from Title VII.
52
The Court of Appeals for the Ninth Circuit
disagreed, and ruled that the company’s practice of mandatory employee participation
had to be altered to allow voluntary participation, with the appropriate accommodations
for those who did not wish to attend.
53

In another case involving religious expression in the workplace from the 1970s, an
atheist quit her job because she was uncomfortable with the Baptist invocation that
initiated the company’s mandatory monthly meetings. She expressed her discomfort to
her supervisor, who told her attendance at the entire meeting was compulsory and that
she could just “close your ears”.
54
The supervisor made no attempt to accommodate the
woman’s beliefs. As a result, this individual was led to believe that she would be fired if
she did not attend, so she resigned and her resignation was accepted. The initial court
hearing the case sided with the employer because the employee had appeared to quit
voluntarily.
55
However, the appeals court hearing the case overturned the lower court
decision, citing constructive discharge and religious discrimination. In effect, the
employee had been allowed to leave her job without the benefit of being told by her
supervisor about company policy that accommodated non-believers and without telling
her that he could not fire her.
56
The actions of the employer with regard to the employee
were declared to be discriminatory because she was forced to engage in activities she
found “repugnant” and because the business failed to work with her on alternatives to
attending the monthly meeting in its entirety.
57

Finally, the last case to be discussed here involves an agnostic who was informed
by the owners of the company that his prospects for advancement would be better if he
157
attended the owners’ church. In fact, Cline did attend the church for a while and was
rewarded with a pay increase.
58
When he did not attend the church, he was given more
difficult work assignments relative to those who did. Feeling pressure from the job
because of the church attendance requirement, Cline quit. He then sued, citing
constructive discharge.
59
The initial court hearing the case decided in favor of the firm’s
owners because it alleged that Title VII of the CRA statute did not provide protection to
atheists and agnostics. The Michigan Supreme Court disagreed and reversed the original
decision, noting that atheism and agnosticism are indeed protected under the law.
60

The law is clear that even in a private setting, such as employment with a private
firm, atheists are equal under the law. The fact that firms are technically private entities
does not entitle them to discriminate against persons on the basis on religion. While
employment is a public good that is beneficial to the economic and public welfare of the
nation, the results of these cases raise the question as to why an organization such as the
Boy Scouts has been allowed to discriminate on the basis of religious beliefs, given that
other sections of the CRA, like Title VII does apply to them.
A Public Accommodation Exception for Atheists
Title II of the CRA is the aspect of the act that shields individuals from
discrimination on the basis of religion, race, color and national origin.
61
This act protects
individuals in places of public accommodation, which includes hotels, inns and stadiums
and “other place of exhibition or entertainment”.
62
Places of public accommodation also
include localities that are “supported by state action.”
63
However, there is an exemption
in the statute for “private clubs” or facilities that are not open to the public.
64
Discussions
in Congress regarding this section of the law indicated that the law intended to insure that
158
it excluded only those clubs that were truly private in nature, and not those organizations
that only claimed to be a private club with the intention of excluding unwanted persons.
65

Over the years, the Supreme Court has extended the coverage of Title II to many
organizations that were private non-profit membership organizations. This has included a
private club that owned 400 acres of land that was used for hunting and fishing and “a
teacher organization that met regularly in a public school auditorium”.
66
In addition, the
Court has ruled that private clubs must truly be selective and clearly not open to the
public.
67
The selectivity cannot be done for the purpose of denying membership to
individuals protected under Title II, such as African-Americans.
68

For these reasons, there is no reason to permit the BSA, which receives federal
funds, is the beneficiary of a Federal Charter, and the beneficiary of federal favoritism in
No Child Left Behind, to continue to discriminate against atheists. Furthermore, the BSA
advertises itself as open to all boys and not as a private club, which should make it
subject to the requirements of the CRA.
Unfortunately, the Courts continue to make exceptions for the BSA and its
policies. For example, in the Welsh case discussed in Chapter Three, the reasoning used
by the Court of Appeals for the Seventh Circuit to permit the continued practice of
refusing atheists was that the BSA was a private club that wasn’t connected to a physical
facility.
69
Unless BSA meetings are nomadic, and that is doubtful, it is hard to argue that
it is never connected to a fixed facility. While many meetings are in private homes, the
BSA does much of its business out of fixed, public locations, be it a public school in
Portland, a public park in San Diego or a public dock in Berkeley. As I already
mentioned, the largest single chartering group for the Scouts is the public schools.
70

159
Additionally, other allegedly private organizations that represented themselves as open to
all individuals in the population to which they market themselves, such as the Rotary
Clubs and the Jaycees, have been forced to accommodate individuals safeguarded from
discrimination under Title II (women). Like these organizations, the BSA has taken great
strides to present itself as being open to all boys. If its policy in the Portland public
schools is any indication, the BSA operates as anything but an exclusive membership
organization and would even lie by omission about its policies to entice new boys to join
the organization.
71

Religious Tests Remain Impermissible
Torcaso v. Watkins outlawed religious tests for public office in 1961. In 2008, a
few states still retain exclusionary wording in their constitutions that prohibit atheists
from holding public office
72
, even though that wording is moot. However, some
government officials continue to attempt to apply it. Only a few years ago, the South
Carolina Supreme Court faced a challenge to the still extant wording in its own
constitution. Like the Maryland man in Torcaso, Herb Silverman’s application for a
notary public commission was denied in part due to his atheism. One of the officials who
was supposed to sign off on the application rejected it because of the South Carolina
constitutional dictum that atheists cannot hold public office. Silverman sued and was
vindicated, although he had to repeat the process for gaining signatures again because he
had not gathered all the signatures. However, South Carolina officials were reminded
that the provision in the state constitution was violation of Article VI of the Constitution
as well as Torcaso v. Watkins; no county official could reject an applicant due to his
religious beliefs.
73

160
Just as government officials cannot issue test oaths for atheists, they are forbidden
from determining what constitutes bona fide religious belief. For example, in Virginia,
the Chesterfield County Board of Supervisors was sued after it refused to allow a Wicca
to give the invocation at the opening of its presumptively non-sectarian Board meetings.
A district court ruled that it was in violation of the Establishment Clause for a public
entity to pick and choose among religions by taking on the role of an ecclesiastical body
that determined which practices to approve and which to disapprove.
74

This decision is grounded in an earlier Supreme Court decision, United States v.
Ballard (1944).
75
In this instance, a man and his family involved in the “I Am
Movement” were found guilty of mail fraud because he and his family were alleged to
have willfully lied in their mailers about having personal meetings with God. Although
there was actually no evidence that this man did not believe what he said, prosecutors
simply assumed that the man was fabricating these claims. The Supreme Court ruled that
government officials could not determine whether Ballard’s views were real or not. It
was declared that governments may not determine what constitutes real or false religious
beliefs. The precedent submitted by this decision is that the government cannot take
upon itself the job of judging the theology of a group or judging the depth of individuals’
beliefs.
76
As in the case of the Wicca, public entities cannot act as an ecclesiastical court
that determines what constitutes unacceptable and unacceptable religion. Decisions like
Ballard would lead to broad scope of protections created for those seeking to obtain
conscientious objector status, including atheists.

161
Conscientious Objector Cases
Prior to World War I, long before the incorporation of the 14th and 15th
Amendments, the federal government codified in statute which religions could qualify for
conscientious objector status, and which did not. Only those individuals who belonged to
specific denominations named in a Congressional law were permitted to claim
conscientious objector status.
77
During World War I, in the Selective Draft Law Cases
78
,
the Court categorically denied conscientious objector status to men who were not
members of the faiths named in the Congressional statute..
79
In denying the validity of
the men’s claims, the court held that the need for the state to raise an army during war did
not conflict with “the constitutional guarantees of religious liberty” and stated that the
duty to fight in a just war outweighed individual liberties. Moreover, the Court
concluded that the Selective Draft Law in no way “establish[ed] or interfer[ed] with
religion.”
80
In that era, free exercise took a back seat to what were considered more
pressing national priorities.
In an attempt to be more accommodating to believing pacifists of other religious
orientations, in 1940 Congress expanded the list of permitted objectors to include anyone
whose objection to war was based on “religious training and belief”. The law did not
apply to seculars or atheists, as Congress clarified in 1948:
…religious training and belief...means an individual’s belief in a relation
to a Supreme Being involving duties superior to those arising from any
human relation, but does not include essentially political, sociological or
philosophical views or a merely personal moral code.
81

The question of how this act was interpreted in time of war did not arise until the
Vietnam War. This was when the court had to make a determination concerning what
162
constituted “religious training and belief”. It actually had two chances to finally
determine that the government could not disqualify an individual from conscientious
objector status because he did not ascribe to a specific religion.
The first set of cases, Seeger v. U.S. (1965)
82
concerned three conscientious
objectors with religious backgrounds. All expressed a belief in a higher being but had
difficulty tying that belief to their specific religious traditions. The men were approved
for conscientious objector status because their beliefs were still tied to some kind of
religious belief.
A few years later, the Court rejected that limitation altogether. In Welsh v. U.S.
(1970)
83
, the most relevant case for atheists, the Court permitted granted a man
conscientious objector status even though he did not profess a belief in a Supreme Being
and was not from a specified religious background. Here, his honest statement about his
personal philosophical beliefs included an opposition to all war.
84
Welsh did not claim to
believe in a higher power nor did he claim to hold anything akin to a religious belief.
While Seeger had put quotation marks around the word religious on his draft application,
Welsh crossed the word out altogether.
85
Neither Seeger nor Welsh belonged to a
religious group at the time of their convictions. However, both sincerely stated that their
pacifism arose from a deeply held belief”. The Court never questioned either man’s
convictions. However, both had been convicted in lower level courts because they had
taken upon themselves the task of determining that their beliefs were not religious in
nature, but rather philosophical.
86
In Welsh, the court set out to greater detail its
intentions in Seeger:
163
What is necessary under Seeger for a registrant’s
conscientious objection to all war stem from the registrant’s
moral, ethical or religious beliefs about what is right and
wrong and that these beliefs be held with the strength of
traditional religious convictions...Because his beliefs
function as a religion in his life, such an individual is as
much entitled to a “religious” conscientious objector
exemption...as is someone who derives his conscientious
objection to war from traditional religious convictions.
87

In Welsh, the Court clarified the point that government officers could not exclude
religious beliefs simply because its representatives do not agree with them or find them
incomprehensible. Even vague beliefs are still religious beliefs that are protected by the
First Amendment, as long as they are sincerely held and are religious as the individual
understands them.
88
These rulings in effect made conscientious objector status so
expansive so that it could include the ethical and philosophical beliefs of atheists whose
sincere, religious-like beliefs mandated an objection to all wars.
89
Most importantly,
Welsh demonstrated that atheists are offered the same protections as believers, and that
the right of conscience even for atheists is covered by the Constitution.
The laws of this country protect not only the right to believe, but also the right not
to believe and not to affirm a statement with which an individual disagrees. Public
entities, and especially schools, are prohibited from compelling students to utter
statements, even patriotic statements that are contrary to both their conscience and their
religious beliefs.
State Neutrality
Welsh and Ballard highlight the principle of state neutrality in matters of religion.
Representatives of the government cannot make a determination as to what is religious.
Government agents including school districts cannot elevate religion above non-religion,
164
or non-religion above religion. Copious Supreme Court precedent supports this tenet.
Chapter Four outlined some of this precedent, so this chapter will only highlight some of
these principles to reinforce this point.
When the U.S. Congress passed legislation adding the words “Under God” into the
Pledge, it did so with a clear religious intent that has already been documented in Chapter
Four. The EGUSD’s choice to require the Pledge when the state statute did not require it
only amplified the problems associated with the law. This is why the EGUSD policy
violates this principle of neutrality. As the court has earlier confirmed, non-sectarian
school prayer, no matter how minimal is disallowed.
90
Like the mandatory moment of
silence in Alabama schools that was struck down in Jaffree
91
, the statement “Under God”
is in fact, an intentional statement that supports monotheism over non-belief, non-theism
and polytheism. It is important to again repeat Justice O’Connor, in Jaffree, reiterating
the precedent in Engel v. Vitale, declaring unconstitutional those situations where,
…the power, prestige and financial support of government
is placed behind a particular religious belief, the indirect
coercive pressure upon religious minorities to conform to
the prevailing officially approved religion is plain.
92

Children are offered special protections
Engel and Jaffree show how the U.S. Supreme Court has taken special care with
children. It has recognized that they can be subjected to peer pressure in the confined
classroom environment that is quite different from what is faced by adults. A key case
dealing with the imposition of religious belief in the classroom setting is from the 1960s,
Abington v. Schempp (1963)
93
(discussed in Chapter Four) which also included a decision
165
on Murray v. Cutlett, a companion case to Abington. Both cases dealt with prayer in the
classroom.
Murray v. Cutlett (1963) was initiated by the prominent atheist Madolyn Murray
O’Hair. O’Hair had fought with the Baltimore school board to amend the board’s
requirement that children be present during a mandatory reading of a chapter from the
King James Bible and a recitation of the Lord’s Prayer.
94
Initially, O’Hair was able to
convince the school board to allow children to opt out, and she was successful. However,
the law remained on the books. In her own words, she later pursued a complete dismissal
of the law because the practice,
…threatens their religious liberty by placing a premium on
belief as against non-belief in God as the source of all
moral and spiritual values, equating these values with
religious values, and thereby renders sinister, alien and
suspect the beliefs and ideals of your Petitioners, promoting
doubt and question of their morality, good citizenship and
good faith.
95

The Supreme Court agreed with Murray, citing Everson
96
, and reiterated that the First
Amendment:
…requires the state to be neutral in its relations with groups
of religious believers and nonbelievers; it does not require
the state to be their adversary. State power is no more to be
used as to handicap religions than it is to favor them.
97

Following the earlier decisions, the Court had continued this line of reasoning,
striking down so called student-led school prayer at high school football game. In Santa
Fe School District v. Jane Doe (1999)
98
, the Court turned down a local ordinance that
permitted student-led, student initiated prayer at football games. The Court did not agree
with the school district’s contention that this was private student speech. The fact that the
166
school district sponsored both the elections and the prayers ultimately made it the prayer
an act endorsed by public school officials. Moreover, the Court ruled that the nature of
the elections had unconstitutionally turned the school into a public forum for religious
debate and had impermissibly assured that the majority would always prevail over the
minority. Of concern as well was the apparent coercion of the students who had to attend
the games because of direct involvement with the game, or because they could earn class
credit. Many students felt peer pressure to attend these school football games.
99

Reviewing the precedent cited in this section and in Chapter Four, there is no
reason why future litigants cannot continue to use stare decisis to argue against policies
such as the EGUSD’s. State neutrality has been a solid principle for many decades. One
scholar has summed up the reasoning for state neutrality in matters involving children so
eloquently that it is quoted here:
Where students and their families are presented with a
single option of publicly financed schooling, and where
public school teachers’ employment opportunities are
fungible in terms of the moral content of the curriculum
and pedagogical mission, the school is functionally
equivalent to the state.
100

The U.S. and International Law

The United States has demonstrated its support for international religious freedom
guarantees that uphold the rights of minority adherents. For example, it is a signatory to
the Universal Declaration of Human Rights, in which Article 18 states:
Everyone as the right to freedom of thought, conscience
and religion, this right includes freedom to change his
religion or belief, and freedom, either alone or in
community wit others and in public or private, to manifest
his religion or belief in teaching, practice, worship and
observance.
101

167

Although this declaration is not legally binding on the U.S., the importance of this human
rights compact is repeated on the homepage of the United State’s own monitoring
agency, the U.S. Commission on International Religious Freedom (USCIF) which is
charged with monitoring international violations of religious freedoms and making policy
recommendations to the President on this subject.
Similarly, the United States is a party to the International Covenant on Civil and
Political Rights (ICCPR), which it ratified in 1992. Article 18 of that treaty reads exactly
the same as Article 18 of the Universal Declaration of Human Rights. Unlike the
Universal Declaration of Human Rights, however, this treaty is legally binding. As a
signatory to the ICCPR, the United States is a technically bound to the terms of that
covenant. The United States signed the covenant in 1992. However it did opt out of
some provisions the treaty, especially the sections opposing the death penalty. Moreover,
when Congress agreed to the ICCPR, the Senate stated that that endorsing the treaty did
not mean that it created a “private cause of action in U.S. Courts”.
102
This was already
ratified by several earlier Supreme Court rulings that declared that foreign and
international law such as the United Nations Charter did not supersede domestic law.
According to the Court, in order for these treaties to be actionable in U.S. Courts, further
action must be taken by Congress to make these rights directly available to U.S.
citizens.
103
As a result of this failure to make the provisions of the ICCPR part of
domestic law, the Human Rights Council of the United Nations has scolded the U.S. for
its activities with the torture and illegal detention of prisoners in the so-called “War on
Terror”.
104

168
The U.S. Commission on International Religious Freedom
Although the United States has opted out of the applying the ICCPR to American
citizens, it has nevertheless created its own monitoring agency on religious freedom. In
1998, Congress created the United States Commission on International Religious
Freedom. This independent government body’s charge is to survey international
violations of religious freedom and to make policy recommendations to key decision
makers, including the President and Congress.
105
The Message from the Chair in one of
its newsletters verifies the Commission’s commitment to both American and
International freedom of religion rights:
Freedom of thought, conscience, and religion or belief is
universal in its importance and applicability. It is the
freedom to assert an individual conscience or identity
without fear, and is a foundational right of the post-World
War II framework of international human rights.
Promoting religious freedom and related human rights
abroad is vital to U.S. foreign policy and to our strategic, as
well as humanitarian, interests. When respected, freedom
of religion or belief is the linchpins of stable, democratic,
productive societies.
106

Although much of the USCIF’s work under the Bush Administration has been
focused on human rights violations towards believers (especially Christians, Jews and
Muslims) in nations such as China, Uzbekistan, Iran, Turkmenistan and North Korea, its
policy statements regarding the rights of citizens and the applicability of international
rights guarantees with respect to violations in Uzbekistan are instructive.
Uzbekistan was placed on the USCIF watch list in 2005 for “systemic, ongoing and
egregious violations of religious freedom” because it harshly limits exactly how its
citizens practice Islam.
107
Uzbekistan has imprisoned and tortured thousands of
169
Muslims for practicing their faith differently from the strictures set by the government.
In this report, the nation was chided for its violations of human rights, and for its
infringement upon its citizen’s rights to “freedom of thought, conscience and religion or
belief…”
108

Furthermore, the Commission regularly cites international law as controlling the
behavior of nations in its publications. In the report on Uzbekistan, the USCIF laid out a
policy recommendation that U.S. decision makers should remind Uzbekistan of its
obligations under international law.
109
Its 2007 report on Turkmenistan recommended
that the nation expand educational opportunities for all Turkmen under international
law.
110
This report also states that it defines freedom of thought, conscience and religion
or belief as defined by international law.
111

As we have just seen, one arm of the Federal Government states that international
law guides its policy decisions regarding religious freedom. While Congress has been
unwilling to codify the very rights that the U.S. proclaims apply to citizens in other
countries, Supreme Court case law has also cited international law as setting examples of
best practices in human rights that the United States should emulate.
The Supreme Court and International Law
As I mentioned, the Supreme Court has applied international law to select cases in
the U.S. Justice Kennedy, writing for the majority in Lawrence (2003)
112
, stated that our
country’s own practices prohibiting homosexual conducts are not more legitimate
because of our history and traditions. Following his lead as the author of the majority
decision, the Court overturned a previous holding that had permitted the continuance of
sodomy laws because states were allowed to legislate morality.
113
In Lawrence, Kennedy
170
recommended that the U.S. also look at values shared by a “wider civilization” that have
upheld and “protected [the] right of homosexual adults to engage in intimate, consensual
conduct.” He based this view on case law emanating from the European Court of Human
Rights.
114
He cited European case law as part of his rationale for overturning a Texas
law that prohibited sodomy (consensual sexual relations between same sex adults).
Citing the reasons for overturning an earlier Court case that permitted such laws
115
,
Justice Kennedy wrote:
And, to the extent that Bowers relied on values shared with
a wider civilization, the case’s reasoning and holding have
been rejected by the European Court of Human Rights, and
that other nations have taken action consistent with an
affirmation of the protected right of homosexual adults to
engage in intimate, consensual conduct.
116

Kennedy went on to agree that Justice Stevens had been correct in his dissenting opinion
in Bowers that the traditional moral disapproval of homosexuals is insufficient to justify
the state law against sodomy.
117

The Lawrence and Atkins
118
decisions, along with the United State’s application of
international human rights guarantees to foreign nations could provide the precedent
needed to show that U.S policy does indeed provide vast rights of religious conscience to
its own citizens. In an era where religious pluralism is supposed to be a valued
commodity and where the U.S. has openly declared its commitment to international
freedom of conscience guarantees for believers and non-believers, it could provide a
remedy for the current problems facing atheists in this country.

171
European Law and Atheists
Before finishing this section, the topic of European case law will be discussed.
119

Europe had traditionally lagged behind the U.S. in recognizing the rights of minority
adherents. A number of nations in Europe have established churches, which are
supported through state subsidies. Some, such as Norway, require that students study the
principles of the official state religion in public school.
120
Some of the restrictions
imposed on minority adherents have been struck down as unlawful by the European
Court of Human Rights (ECHR), such as paying taxes to support the state church of
Sweden.
121
However, some countries continue to require churches to register annual
reports and other documents with the government.
122
Nevertheless, according to ECHR
precedent, the religious freedom of all citizens must be recognized. The seminal case
under European law that stated the absolute right of individuals to the free exercise of
their religion was Kokkinakis v. Greece
123
which was decided in 1994; about five full
decades after the Supreme Court began promulgating decisions recognizing similar
rights.
Kokkinakis was a Jehovah’s Witness who had been arrested numerous times for
public proselytizing and for other acts, including holding a meeting in a private house, for
which he served many jail terms. In 1986, he and his wife were arrested when they
proselytized a Greek Orthodox woman at her home. Greek law at the time permitted
persecution of religious individuals for many different acts, including proselytizing
towards members of the official state church, the Greek Orthodox Church.
124

Kokkinakis complained to the European Commission and then to the European
Court of Human Rights, which is the High Court of Council of Europe
125
, of which
172
Greece was a member. The Court determined that the actions against Kokkinakis had
violated Articles 7 and 9 of the European Convention on Human Rights. Article 7
prohibits the prosecution of individuals for acts that are not considered crimes under
international law. Article 9 protects freedom of religion and conscience with these
words:
Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his
religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest
his religion or belief, in worship, teaching, practice and
observance.
126

This decision has been considered precedent for the European Court of Human Rights
ever since.
127
It is frequently cited in law journals and case law as protecting among
other things, atheists’ right of conscience and belief of atheists.
128
Moreover, changes to
the protocols governing the Council of Europe have given the European Court of Human
Rights decisions the force of law, as well as some power to enforce its holdings.
129

Folgero et al v. Norway
I have not been able to find many cases that directly involved the rights of atheists
or humanists in the European Court of Human Rights. One of several European nations
with an official state religion is Norway, where the teaching of Christianity in the public
schools, and the steps parents must take to exempt their children from this class, has
become quite controversial.
In Norway, Evangelical Lutheranism is the official state religion. Prior to 1997,
school children were given an education in general “Christian Knowledge”, from which
parents could readily exempt their children.
130
However, in 1999, Norway altered its
173
education law so that children received a more general education in religion, with
Christianity now comprising half of the course.
131
The new law made it more difficult for
parents to obtain full exemption from the class for their children. Parents were compelled
to explain their reasons and be approved for a full or partial exemption by the State
Education Office in the county in which they lived.
132
Partial exemptions could be
obtained but only allowed the children to sit out religious songs or prayers. Children
were still obliged to learn the subject matter taught in the class.
133

The Norwegian Humanists protested that the classes that students were mandated
to attend classes that instruct the children on Christianity in whole or in part. An
evaluation of the opt out provision of the new program by the Education Ministry in
2000 supported that contention, acknowledging that it did not adequately protect parental
rights. This was due in part because the details of classroom lesson plans often got to the
parents too late for them to make a decision.
134
Children who were granted exemptions
were “placed in a separate room or might remain in the classroom and be told not to
listen or to participate in the activity concerned.” This created a sense of difference and
stigmatization.
135

In 1998, the parents of these children, members of the Norwegian Humanist
Association, filed suit in Norwegian Courts because they were denied a full exemption
from the class
136
The Norwegian Courts denied their claim, arguing that the parents
could opt to place their children in private school.
137
The case then went to the European
Court of Human Rights, where the Court ruled in favor of the parents.
The ECHR determined that Norway’s new law, by refusing the full exemption to
parents and their children, had denied the parents the right to provide their children with
174
an education that conformed to their religious beliefs. The court did not have an issue
with a classroom curriculum that emphasized Christianity because of Norway’s “national
history and tradition”, viewing this as “falling within the State’s margin of appreciation in
planning and setting the curriculum.”
138
Nor did it view the law itself as a violation of
the plaintiffs’ freedom of conscience. The violation arose from the law’s strict
requirement that made it more difficult for parents to obtain a full exemption from the
class for their children.
139
The court decided that Norway had violated Article Two of
the European Convention on Human Rights by not ensuring that the law be applied in a
way that was “objective and pluralistic”.
140
While the decision protected the rights of
parents to raise their children according to their personal religious beliefs without
interference from the state, it still supported the ability of nations to propagate the beliefs
of the state-supported church through curriculum in publicly-funded schools.
The European Union
The European Union (EU) actually remains behind the Council of Europe in
enforcing religious rights in its 27 member states. While the European Union may be
more progressive than the United States in combating discrimination against persons
based on their sexual orientation or disability
141
, the rights of homosexuals to be free of
employment discrimination
142
, and in preventing pay discrimination between men and
women
143
, it is only beginning to take action in the sphere of religious rights, which have
generally been adjudicated in the Europe Court of Human Rights.
Despite its forward-looking social policies, the European Union has not taken an
active role in enforcing religious freedom among its members. The passage of the EU
Charter of Fundamental Rights as part of the Treaty of Amsterdam in 1997
144
is a first
175
step towards enshrining broad human rights as key, enforceable protections for the
citizens of its 27 member nations. According to the EU’s own documents the Treaty was
“was a major leap forward in the fight against all forms of discrimination in the European
Union.”
145
However, EU documents state that these rights do not presently have the
force of law until the Constitutional Treaty is agreed to by all member states.
146
Until
that time, citizens can use the principles elucidated in the treaty to argue for their rights in
their nations’ own courts as well as in the European Court of Justice
147
, the High Court of
the EU. In 2008, however, the EU cannot force member nations to alter their laws to
conform to EU precepts.
This lack of action in the EU has caused problems for minority religionists in
some member nations. For example, Germany has specifically targeted Scientology,
which it labels as a sect and not a true religion. Under former Chancellor Helmut Kohl,
plans were considered that would have banned Scientologists from holding Civil Service
jobs.
148
In the 1990s, the State Intelligence Agency initiated a confidential telephone
number for citizens to call to report the activities of the Church of Scientology.
149

However, the ECHR has come out in favor of laws that protect Scientologist. In 2007,
the ECHR ruled that Scientology is protected under the European Convention on Human
Rights’ “Article 11 (freedom of assembly and association) of the European Convention
on Human Rights read in the light of Article 9 (freedom of thought, conscience and
religion).”
150

The Margin of Appreciation
Europe operates on a model that is very different from the U.S. While the U.S.
has outlawed state establishments, European law makes accommodations for state
176
establishments (called the “margin of appreciation”
151
) within certain limits, as for
example, in the case of Norway I mentioned earlier in this chapter. Norway and other
nations fund religious schools. Some commentators have noted that this gives the feeling
of religious preference to those who do not ascribe to the majority religion.
152
Moreover,
the ECHR has not been consistent in upholding free exercise rights for minority
adherents. While it has now asserted that parents have the right to provide their child
with their religious beliefs, it still upholds laws that limit religious practices of some
religious minorities. In 2005, the ECHR upheld a Turkish policy that targeted
practitioners of unpopular religious groups when it permitted Turkey’s secularist policy
of prohibiting the wearing of Muslim headscarves on the rationale that it protects social
order from radical Islam has been upheld in 21
st
century ECHR rulings.
153

This again points to why Newdow and Dale were so troubling. In essence, the
United States may have taken its first steps towards eradicating a feature in its laws that
has made it rather unique in the so-called developed world. Even Americans of
unpopular minority religions were provided protections under the First Amendment of
the Constitution. Could this nation be returning to a situation similar to Europe’s, where
nations are permitted to deny minority adherents free exercise rights because it is
allegedly in the public interest, as Germany and Turkey have done? Whatever the issues
might be in the European nations that have an establishment, citizens are at the very least
aware that their nation has an official religion, so that the ruse of complete neutrality is
simply not present. It might come as a surprise to many to learn that in fact this nation
does have a form of de facto religion that is very much bolstered and supported by the
government. Moreover, this de facto religion has affected more persons than just
177
atheists, as Buddhists have also expressed their discomfort with the present state of
affairs regarding the Pledge of Allegiance.
154

Solutions for California
Returning to American law, I want to explore some legislative solutions that might
be available to mitigate the current situation. As the claimants in both Curran
155
and
Randall
156
discovered, the peculiar wording of California’s Jesse Unruh Civil Rights
statute favored the Boy Scouts because it could be narrowly construed. This is because
California Civil Code §51 specifically stipulates that protected individuals are to be free
of discrimination in “services in all business establishments of every kind whatsoever”.
157

Protected interests under the statute are wider than what is provided under federal law
and include gender, race, color, religion, ancestry, national origin, disability, medical
condition, marital status and sexual orientation. However the definition of public
accommodation is quite narrow. Nevertheless, although the statute says that atheists and
homosexuals “are free and equal” and “entitled to the full and equal accommodations,
advantages, facilities, privileges, or services…”
158
they are not entitled to be free of
discrimination by federally-endorsed non-profit organizations such as the Boy Scouts
because the courts can use the statute to declare that it literally only provides protection
against the actions of organizations that are in business to make a profit, including
concerns such as housing projects and places of employment.
As the chapter has already discussed, public accommodations have been deemed by
other courts to include even so-called private establishments if they operate as if they are
fully open to the public. To ameliorate their plight in the future, activists could initiate a
legislative strategy that features amendments to the Jesse Unruh Civil Rights Act. They
178
could locate a sympathetic legislator to author legislation that would expand that
stipulation beyond its present limitations using the New Jersey anti-discrimination law as
its model statute. Such a law might provide amplified protections to gays and atheists.
Given the strength of California’s LGBT caucus in the State Legislature, a recommended
tactic would be to approach one of these five legislators, all of whom hold powerful
positions in the current legislature.
159

Civil Code Section 51b could be amended to read: All persons within the
jurisdiction of this state are free and equal, and no matter what their sex, race, color,
religion, ancestry, national origin, disability, medical condition, marital status, or sexual
orientation are entitled to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments public accommodations
160
of every
kind whatsoever.
A new section would be added to define public accommodations as they are
currently defined in New Jersey Law as such: A public accommodation is a place of
public accommodation, resort or amusement within the meaning of this chapter shall be
deemed to include any inn, tavern, road house or hotel, whether for entertainment of
transient guests or accommodation of those seeking health, recreation or rest; any
restaurant, eating house, or place where food is sold for consumption on the premises;
any place maintained for sale of ice cream, ice and fruit preparations or their derivatives,
soda water or confections, or where any beverages of any kind are retailed for
consumption on the premises; any garage, any public conveyance operated on land or
water, and stations and terminals thereof; any public bathhouse, public boardwalk, public
seashore accommodation; any public park; any theater, or other place of public
179
amusement, motion-picture house, airdrome, music hall, roof garden, skating rink,
amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard
and pool parlor; any dispensary, clinic, hospital, public library, kindergarten, primary and
secondary school, high school, academy, college and university, or any educational
institution under the supervision of the regents of the state of California.”
161
Amending
the statutes to better reflect California’s diverse populations might be an effective
strategy to follow to improve outcomes in the future.
Issues within Elk Grove Unified School District
When the Supreme Court neglected to render a decision on the constitutionality of
the Pledge, it allowed Ninth Circuit precedent to stand. The second Newdow decision
again declared that the EGUSD’s practices regarding the Pledge of Allegiance remain
unconstitutional. Nevertheless, the practice continues in that school district; there have
likely been few changes in the policy.
162

The problem with the EGUSD policy and the California Education Code remain,
however. There is no specific stipulation that students can opt out or that teachers and
other school officials will not harass or intimidate a child because of his willingness or
refusal to recite the Pledge of Allegiance.
163
Although sections 234-234.3 of California’s
Education Code forbid harassment and discrimination, this limitation is not set forth in the
part of the code pertaining to patriotic exercises. Given a 2005 Virginia decision, this only
highlights the need for clarification in the law. In Myers v. Loudon County Public Schools
(2005), the Court of Appeals for the 4th Circuit ruled the Pledge constitutional because the
school district policy specifically required that children could not be required to recite the
180
Pledge.
164
However, the decision did not go far enough in also requiring that students not
be harassed or singled out, aside from not being forced to recite the Pledge
If judges are going to continue to support the current pledge using the questionable
reasoning that it falls under Ceremonial deism
165
, some protections must be built in. The
rules should emphasize that children can opt to not participate. But they must also include
provisions that mandate that teachers and school officials demonstrate professional
neutrality with regards to the Pledge. In fact, the Supreme Court had previously applauded
a local jurisdiction for including such a stricture in its requirements for a released time
religious instruction program. It is surprising that this footnote to Zorach v. Clauson has
not been repeated in other cases. The Court in Zorach v. Clauson noted that it had ruled
the law constitutional because the regulations guiding the released-time religious
instruction program in New York City contained some “significant amplifications”: “there
shall be no comment by any principal or teacher on attendance or nonattendance of any
pupil upon religious instruction.”
166
This practice convinced the Court that program was
not coercive and thus constitutional.
Given the continuing environment of heightened patriotism, any ensuing fights on
the issues raised in Dale and Newdow might not be in the courtroom, but in the
legislatures. Although many state legislatures will be unsympathetic, there are those states,
such as California, where activists might find success. This may have to be the route that
is undertaken, working town by town and state by state, in localities, such as Philadelphia
and Berkeley, where local customs and sympathies are more inclusive and open to fairness
towards atheists and homosexuals.
181
No Child Left Behind (NCLB) and the Powell case – an opening for public
accommodation claims?
Although these possibilities are purely speculative, two developments might work
against BSA courtroom success in the future. The stipulation in NCLB that mandates that
schools permit the BSA to recruit on campus, coupled with the Oregon Supreme Court
decision that such recruitment is permissible if it is done surreptitiously
167
, may provide
the BSA with an even greater tinge of being a public accommodation.
The dictum that schools must permit the BSA to recruit on campus or lose federal
funding has tied the knot between the government and the BSA even further by creating
the impression of a stronger association than before. This creation of an image of full
public endorsement may create greater leeway for individuals to sue under Title IV of the
CRA which prohibits religious discrimination in public schools.
Another possible inroad was created by Powell. By allowing the Scouts to recruit
members in a fashion that cloaks the discriminatory nature of the organization, the BSA
creates the false impression that it is open to any boy who applies for membership. As was
already demonstrated in Roberts and other cases, allegedly private organizations that
publicize their membership as being fully open the public are considered public
accommodations and must admit new members.
168

Conclusion
Although atheists have jurisprudential history on their side, non-believers may face
an uphill battle attempting to get Dale overturned and preventing the Court from making
its dicta on the Pledge into law. No matter how erroneous both decisions were, it does not
augur well that the Court of Appeals for the Fourth Circuit has already cited the Newdow
182
dicta as if it could become precedent. Nor is the current situation for atheists wishing to
become part of the Boy Scouts expected to improve in the future, especially since the
federal government repeated its official endorsement through the amendment to the No
Child Left Behind Act that requires schools allow the Boy Scouts to recruit on campus.
However, there is an off-chance that the BSA’s own enthusiasm in skirting local anti-
discrimination laws might backfire on them.
The fact is that atheists remain America’s most unpopular minority. Although
American law claim to offer Americans full legal protection, the force of Civil Religion in
the United States makes them immediate outsiders.
169
America may not have an official
state church, but in many ways, these recent decisions demonstrate that there is a de facto
religion in operation that, in the words of one scholar, causes “atheism to suffer from a
form of quasi-legal ostracism” that obviates the purported freedom of conscience otherwise
available to them.
170

Much of what hampers atheists’ likeability are long-standing prejudices concerning
their moral character, their trustworthiness, and their perceived intolerance of religious
Americans. The media’s focus on activist atheists such as Madolyn Murray O’Hair and
Michael Newdow may only add to unbelievers’ inability to win more support from the
American public. They are often perceived as strident and unreasonable, as desperate
individuals fighting a losing battle.
171
In the conclusion that follows, this analysis will
provide an overview of the report and end with some recommendations for how atheists
can improve their image among Americans. While some of it is due to demographic
changes in the population, homosexuals are more accepted by Americans than they were
183
thirty-five years ago.
172
Homosexuals have actually had some success in blunting some
public disdain for their group; atheists may wish to emulate some of their strategies.

184

Chapter Five Endnotes
1
Wallace v. Jaffree 472 U.S. 38 (1985).

2
This term is used to make a distinction between a freedom of religious belief that is granted to those
individuals who hold beliefs mired in established religions, and broader freedoms granted to all individuals
whether or not their beliefs are traditionally religious. It is used in Carl H. Esbeck. “The 60
th
Anniversary
of the Everson Decision and America’s Church-State Proposition”. Journal of Law and Religion 23
(2007/2008): 15-41.

3
West Virginia Board of Education v. Barnette 319 U.S. 624 (1943). Also see United States v. Seeger 380
U.S. 1963 (1965) on the right of conscientious objectors of non-traditional but certain religious beliefs, to
avoid the draft. Five years later, in Welsh v. U.S., the court permitted individuals to abstain from
conscription, even though this individual did not profess a belief in a Supreme Being and his philosophical
beliefs (not religious in the traditional sense) included an opposition to all war. Welsh v. United States, 398
U.S. 333 (1970).

4
County of Allegheny v. ACLU 492 U.S. 573 (1989).

5
Lauren Monson. “Washington National Cathedral Celebrates 100
th
Birthday”. USINFO. 6 September
2007. 20 July 2008 http://www.america.gov/st/washfile-
english/2007/September/20070906130622GLnesnoM0.6720545.html..

6
William Trunk. “The Scourge of Contextualism: Ceremonial Deism and the Establishment Clause”.
Boston College Law Review 49 (2008): 571-583.

7
Marsh v. Chambers 463 U. S. 783 (1983).

8
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04: 27.
9
County of Allegheny v. ACLU 492 U.S. 573 (1989).

10
Kimberly Edds. “San Diego to Move Giant Cross”. The Washington Post. 10 March 2005: A19.

11
Newdow v. Congress (No. Civ. S-05-17) (E.D. Cal.) 14 September 2005 declared that the EGUSD’s
policy remained unconstitutional because the Ninth Circuit decision was never overruled.

12
Myers v. Loudon County Public Schools 418 F.3d 395 (4th Cir. 2005) asserts a belief that the dicta in
Newdow will become precedent.

13
Kaufman v. McCaughtry 419 F. 3d 867 (8
th
Circuit 2005). This case will be discussed in greater detail in
the next section.

14
International Religious Freedom Act of 1998 (Public Law 105-292).

15
United States Commission on International Religious Freedom. Annual Report of the United States
Commission on International Religious Freedom. Washington, DC: US Commission on International
Freedom: 2007. 6.

16
United States Commission of International Religious Freedom.“Authorizing Legislation/International
Covenants”. USCIF. 5April 2008 http://www.uscirf.gov.

185

17
Sanford Levinson. “Looking Abroad When Interpreting the U.S. Constitution: Some Reflections”.
Texas International Law Journal 39 (2003-04): 354.

18
Sanford Levinson. “Looking Abroad When Interpreting the U.S. Constitution: Some Reflections”: 354.

19
See for example, Atkins v. Virginia 536 U.S. 304 (2002). This was a case concerning the applicability of
the death penalty on a mentally retarded individual, a practice the court rejected. The justices that were
seemingly open to the suggestion of using international agreements in such cases included Justices White,
Stevens, Souter, Bader-Ginsburg, Kennedy and O’Connor At least in the court of the early two-thousands,
those opposing such an idea were Rehnquist, Scalia and Thomas, a group that has probably expanded to
include Roberts and Alito since the Atkins decision was written. See Michael D. Ramsey. “Agora: The
United States Constitution and International Law”. American Journal of International Law 98 (2004): 69-
82.

20
Lawrence and Garner v. Texas 539 U.S. 558 (2003).

21
For example, California does not permit those in jail or on parole for a felony to vote or to register to
vote. California Elections Code §2300. See also Mark Mauer and Tushar Kansal. Barred for Life: Voting
Rights Restoration in Permanent Disenfranchisement States. Washington, DC: The Sentencing Project,
2005.

22
Alcoholics Anonymous, Big Book, Fourth Edition. New York: Alcoholics Anonymous World Services,
Inc, 2001. 59.

23
For example, see Griffin v. Coughlin, 88 N.Y. 2d 674 (NY Court of Appeals, 1996). The ruling
prohibited an atheistic prisoner’s participation in an Alcoholics Anonymous program as a condition of his
participating in a family visitation program. The prison’s policy was ruled unconstitutional because the
claimant was an atheist who did not ascribe to the God-beliefs required in Alcoholics Anonymous. He had
to be referred to another, secular program. As a result of this ruling, inmates cannot be forced to participate
in AA programs, only voluntary participation in the religion-based program is permitted.

24
Warner v. Orange County Dept. of Probation , 115 F.3d 1068 (2d Cir. 1997).

25
Kerr v. Farrey 95 F.3d 472 (7th Cir. 1996).

26
Kaufman v. McCaughtry 419 F. 3d 867 (8
th
Circuit 2005).

27
There are a variety of theories that attempt to provide a holistic account of what the framers intended, and
to use those meta-theories to justify the scholar’s favored school of thought of constitutional interpretation.
This paper does not intend to provide an expert overview of this subject. The common fault with such
contentions, whether separationist or non-preferentialist or accomodationist, is that there is an underlying
assumption that the First Amendment was written by men who agreed entirely on how the relationship
between church and state ought to work. This paper is most comfortable with theories that recognize that
the Court’s approach to matters of church and state evolved over the centuries. These theories contend that
the changes in the religious diversity of our nation, along with the addition of the 14
th
and 15
th

Amendments, came to mean that the religion clauses must be understood as part of an evolutionary process.
David A.J. Richards singularly rejects the use of original intent argument if it “ignores later interpretive
traditions which give no weight to history, or political theory unlinked to either history of interpretive
conventions.” See, David A.J. Richards. Toleration and the Constitution. New York: Oxford University
Press, 1986. 103-164. Winnifred Fallers Sullivan, a lawyer and student of theology, uses her knowledge of
the law and the scriptures to argue that law must be seen as “an ongoing conversation about society’s
meaning”. For Sullivan, the law must work to include individuals who are not part of the religious

186

community and at the same time has to work “in tandem with the culture.” Winnifred Fallers Sullivan.
Paying the Words Extra: Religious Discourse in the Supreme Court of the United States. Cambridge, MA:
Harvard University Press, 1994. 15-23. I agree with an approach to the clauses that is summed up nicely
in a work by Stephen Smith. Foreordained Failure: The Quest for a Constitutional Principle of Religious
Freedom. New York: Oxford University Press, 1995. Smith posits that the only principle enunciated in
the Establishment and Free Exercise clauses was a jurisdictional one that assigned matters of religion over
to the states. Smith writes that the Constitution contains no “substantive principle of religious freedom”. It
is futile, he argues, to “extrapolate a theory of religious freedom from the religion clauses” because the
framers had no intention of answering the question themselves. They didn’t because the views of the
framers differed, and practices within the various states differed as well. Smith instead suggests a return to
an historical approach which could better account for how a tradition of religious freedom has evolved
from our “practices and traditions” get page number.

28
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04: 21.

29
Church of the Holy Trinity v. United States 143 U.S. 457 (1892). 471.

30
Justice O’Connor, majority opinion, Wallace v. Jaffree 472 U.S. 38 (1985). 52. In this case, the Supreme
Court ruled that Alabama’s statutory requirement of a one minute period of silence in the public schools
was intended to be a religious activity and was hence unconstitutional.

31
Wallace v. Jaffree 472 U.S. 38 (1985). 53.

32
Torcaso v. Watkins 367 U.S. 488 (1961).

33
For an overview of the seminal cases and key philosophies regarding this shift in jurisprudence, see
Robert S. Alley. The Supreme Court on Church and State. New York: Oxford University Press, 1988.

34
Three cases in the 19th century declared that the Bill of Rights did not apply directly to individuals and
only limited federal, not state action. Barron v. Baltimore 32 USC (7 Peters) 243 (1833), which allowed
Baltimore to confiscate a man’s property because the Fifth Amendment did not protect individuals from
state action; Permoli v. First Municipality No. 1 of the City of New Orleans, where the Supreme Court
upheld a municipal ordinance that blatantly barred Catholic churches from performing funeral rites on their
own grounds, contending that “The Constitution of the United States makes no provision for protecting the
citizens of the United States in their religious liberties; this is left to the state constitutions and laws”
Permoli v. First Municipality No. 1 of the City of New Orleans 44 USC (3 Howard) 589 (1846); and
Cummings v. The State of Missouri which permitted Missouri to require a test oath of officials in certain
professions (including the clergy) regarding their loyalty to the Union cause during the Civil War on the
grounds that it was “unchristian to interfere”. Cummings v. The State of Missouri, 71 USC (4 Wallace)
277 (1866). In the 19
th
century, the Court also prohibited Mormons from practicing polygamy, declaring
that because polygamy had been traditionally viewed as immoral and unacceptable, it was appropriate that
Congress pass legislation outlawing the practice. Reynolds V. United States, 98 U.S. 1145 (1878).

35
Pierce v. Society of Sisters, 267 U.S. 510 (1925). Here, the Court overturned an Oregon law that
compelled parents to send their children to public school, allowing for the first time the right of parents to
choose how to educate their children.

36
See note 33 for details on the earlier cases.

187

37
The Court has even forbidden public entities from determining whether or not a creed actually is a
religion. The Court has instructed public entities that state cannot decide what is and is not a religion. See,
for example, United States v. Ballard 322 U.S. 78 (1944). A review of this case is found in Ronald B.
Flowers. That Godless Court? Supreme Court Decisions on Church-State Relationships. 27-29.

38
Public Law 88-352. 78 Stat. 241; 42 USC 2000a.

39
Brendan M. Cournane. “Title VII and Religious Discrimination: Is Any Accommodation Reasonable
Under the Constitution?”. Loyola University of Chicago Law Journal 9 (1977-1978): 413.

40
Brendan M. Cournane. “Title VII and Religious Discrimination: Is Any Accommodation Reasonable
Under the Constitution?”: 413.

41
Harry T. Edwards and Joel H. Kaplan. “Religious Discrimination And The Role of Arbitration Under
Title VII”. Michigan Law Review 69: 600-01.

42
Brendan M. Cournane. “Title VII and Religious Discrimination: Is Any Accommodation Reasonable
Under the Constitution?”: 415.

43
Harry T. Edwards and Joel H. Kaplan. “Religious Discrimination And The Role of Arbitration Under
Title VII”: 618.

44
42 USC 2000a.

45
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race,
color, religion, sex, or national origin. Pub. L. 88-352.

46
See generally http://www.eeoc.gov.

47
The U.S. Equal Employment Opportunity Commission, “Religious Discrimination”. U.S. Equal
Employment Opportunity Commission. 6 October 2008 http://www.eeoc.gov/types/religion.html.

48
Terry Morehead Dworkin. “It’s My Life – Leave Me Alone: Off The-Job Employee Associational
Privacy Rights”. American Business Law Journal 35 (1997): 66.

49
EEOC v. Townley Engineering and Manufacturing Co. 859 F.2d 610 (9th Circuit, 1988).

50
EEOC v. Townley Engineering and Manufacturing Co. 612.

51
EEOC v. Townley Engineering and Manufacturing Co. 611.

52
EEOC v. Townley Engineering and Manufacturing Co.: 613.

53
EEOC v. Townley Engineering and Manufacturing Co. 623.

54
Young v. Southwestern Savings and Loan Assn. 509 F.2d 140, (Fifth Circuit, 1975): 140-41.

55
Young v. Southwestern Savings and Loan Assn 140.

56
Young v. Southwestern Savings and Loan Assn. 142.

57
Young v. Southwestern Savings and Loan Assn. 144.

188

58
Cline v. The Auto Body Shop and Philip E. Tripp, Jr. 614 N.W. 2d 687, (Mich. App. 2000).

59
Cline v. The Auto Body Shop and Philip E. Tripp, Jr. 688.

60
Cline v. The Auto Body Shop and Philip E. Tripp, Jr. 688-89.

61
42 U.S Code §2000a.

62
42 U.S Code §2000a.

63
Sandra J. Colhour. “Title II of the Civil Rights Act of 1964 and Membership Organizations Unconnected
to a Physical Facility”. Missouri Law Review 59 (1994): 810.

64
U.S. Code §2000(c)-(d).

65
Sandra J. Colhour. “Title II of the Civil Rights Act of 1964 and Membership Organizations Unconnected
to a Physical Facility”: 812.

66
Sandra J. Colhour. “Title II of the Civil Rights Act of 1964 and Membership Organizations Unconnected
to a Physical Facility”: 815.

67
Sandra J. Colhour. “Title II of the Civil Rights Act of 1964 and Membership Organizations Unconnected
to a Physical Facility”: 815.

68
Sandra J. Colhour. “Title II of the Civil Rights Act of 1964 and Membership Organizations Unconnected
to a Physical Facility”: 816.

69
Welsh v. Boy Scouts of America. 993 F. 2d 1267 (7th Cir. 2003).

70
Jay Mechling. On My Honor: Boy Scouts and the Making of American Youth. 36.

71
Powell v. Bunn 59 P3d 559 (Or.App. 2002).

72
The states that still retain some form of exclusionary wording include Maryland, Pennsylvania, South
Carolina, Tennessee and Texas. In Edd Doerr and Albert J. Menendez. Religious Liberty and State
Constitutions. Buffalo: Prometheus Books, 1993.

73
Silverman v. Campbell 326 S.C. 208, 486 S.E. 2nd 1, S.C Lexis 1998 (1997).

74
Simpson v. Chesterfield Board of Supervisors 202 F. Supp. 2d 805 (EDVa, 2003).

75
United States v. Ballard 322 U.S. 78 (1944). A review of this case is found in Ronald B. Flowers, That
Godless Court? Supreme Court Decisions on Church-State Relationships: 27-29.

76
United States v. Ballard 322 U.S. 78 (1944). 86-87.

77
In 1864, the Union and Confederacy governments gave exemptions to two old-line pacifist faiths: the
Quakers and Mennonites. These were the only two churches that in 1917 were still recognized for
exemption from conscription. See Ronald B. Flowers. That Godless Court? Supreme Court Decisions on
Church-State Relationships . 56-57.

189

78
Selective Draft Law Cases, 245 U.S. 366 (1918).
79
These men were not members of religions that preached pacifism.

80
Selective Draft Law Cases, 245 U.S. 366 (1918).

81
50 United States Code App. §456j (1958 ed.).

82
Seeger v. U.S. 380 U.S. 163 (1965).

83
Welsh v. U.S. 398 U.S. 333 (1970).

84
Welsh v. U.S. 398 U.S. 333 (1970).

85
Ronald B. Flowers, That Godless Court? Supreme Court Decisions on Church-State Relationships: 58-
60.

86
Welsh v. U.S. 398 U.S. 333 (1970).

87
Welsh v. U.S. 398 U.S. 333 (1970).

88
Seeger v. U.S. 380 U.S. 163 (1965).

89
In Gillette v. United States 401 U.S. 437 (1971), the Court refused to grant conscientious objector status
to a man who merely objected to the Vietnam War because he was not opposed to all war.

90
Recall Engel v. Vitale 370 U.S. 421 (1962) which outlawed a non-sectarian school prayer designed by
the New York Board of Regents.

91
Wallace v. Jaffree 472 U.S. 38 (1985).

92
Wallace v. Jaffree 472 U.S. 38: 70.

93
Abington Township v. Schempp 374 U.S. 203 (1963).

94
Abington Township v. Schempp 374 U.S. 203: 211-212.

95
Abington Township v. Schempp 374 U.S. 203: 212.

96
Everson v. Board of Education, 330 U.S. 1 (1947) upheld a New Jersey practice that provided subsidize
school buses for children who attended any school in the state, whether public or private, because the scope
of the law was so broad that it was considered religiously neutral.

97
Abington Township v. Schempp 374 U.S. 203 (1963): 311.

98
Santa Fe Independent School District v. Jane Doe 530 U.S. 290 (2000).

99
This is in alignment with an Appeals Court for the Fifth Circuit decision in 1995 that outlawed prayer at
junior high school football games. In this instance, a young girl had expressed discomfort with the coach-
led prayer prior to basketball games and had opted not to participate. She was singled out by the alleged
adults in the crowd who asked why she wasn’t praying and who publicly questioned her Christianity. In
addition one of her teachers called her “a little atheist” in class. John Doe v. Duncanville Independent

190

School District 70 F.3d 402 (Fifth Circuit, 1995). The questions and humiliations she endured are on page
404.
100
Robert K. Vischer. “The Sanctity of Conscience in an Age of School Choice: Grounds for Skepticism”.
University of Maryland Law Journal of Race, Religion, Gender and Class 6 (2006): 83.

101
United Nations. “Universal Declarations of Human Rights”. United Nations. 10 December 1948.
5 May 2008 http://www.un.org/Overview/rights.html.

102
U.S. Senate Executive Report. No. 102-23 (102d Congress, 2d Session): 15 (1992).

103
Fujii v. State of California 38 C. 2d 718; 242 P.2d 617 (1952). This case involved a Japanese citizen
who sought to retrieve land bought by him that had been escheated to California. The man was denied this
land because, although the United States was a signatory to the treaty in question, it had not undertaken
legislative action to make this treaty the law of the land.

104
Colum Lynch. “U.N. Official Faults U.S. Detentions”. Washington Post. 8 December 2005: A27.

105
International Religious Freedom Act of 1998, Public Law 105-292, 105
th
Congress (1998).

106
Preeta D. Bansal. “Message from the Chair” Focus: USCIF Newsletter Issue 4 (2004): 1.

107
United States Commission on International Religious Freedom. Policy Focus: Uzbekistan. Spring
2005: 1.

108
United States Commission on International Religious Freedom. Policy Focus: Uzbekistan. Spring
2005: 1.

109
United States Commission on International Religious Freedom. Policy Focus: Uzbekistan. Spring
2005: 1. President Bush refused this advice.

110
United States Commission on International Religious Freedom. Policy Focus: Turkmenistan. Winter
2007: 23.

111
United States Commission on International Religious Freedom. Policy Focus: Turkmenistan. Winter
2007: 1.

112
Lawrence and Garner v. Texas 539 U.S. 558 (2003).

113
Bowers v. Hardwick 478 U.S. 186 (1986).

114
Lawrence and Garner v. Texas 539 U.S. 558 (2003), pp. 559-560. The European Court of Human
Rights is the high court of the Council of Europe. Also, Gerald L. Newman. “Use of International Law in
Constitutional Interpretation”. American Journal of International Law 98 (2004): 82-90.

115
Bowers v. Hardwick 478 U.S. 186 (1986) upheld a Georgia law that prohibited sodomy in a private
home, stating that there was no constitutional right for homosexuals to engage in sodomy, and claiming that
illegalizing this conduct was legitimate because of the moral beliefs of the Georgia electorate. 196.

116
Lawrence and Garner v. Texas 539 U.S. 558 (2003). 560.

117
Lawrence and Garner v. Texas 539 U.S. 558 (2003). 560. Justice Stevens, dissenting opinion, Bowers
v. Hardwick 478 U.S. 186 (1986). 210.

191

118
Atkins v. Virginia 536 U.S. 304 (2002) forbade the use of the death penalty on a developmentally
disabled man, citing cruel and unusual punishment.

119
The subject of religious guarantees and restrictions faced by atheists worldwide is a compelling topic,
but should be a separate study of its own.

120
Stephen Gey. “Atheism and the Freedom of Religion” in Michael Martin. The Cambridge Companion to
Atheism. Cambridge: Cambridge University Press, 2006 250. Elizabeth Haakedal. “From Lutheran
Catechism to World Religions and Humanism: Dilemmas and Middle Ways through the Story of
Norwegian Religious Education”. 23 British Journal of Religious Education (2001): 88-97.

121
Carolyn Evans and Christopher A. Thomas. “Church-State Relations in the European Court of Human
Rights”. Brigham Young University Law Review 3 (2006): 703.

122
Bulgaria is one example. Carolyn Evans and Christopher A. Thomas, “Church-State Relations in the
European Court of Human Rights”: 703.

123
Kokkinakis v. Greece [Kokkinakis c. Grèce], 17 E.H.R.R. 397.

124
Kokkinakis v. Greece [Kokkinakis c. Grèce], 17 E.H.R.R. 397.

125
The Council of Europe was founded in 1949. It has 47 member states. One of its stated purposes is to
develop common principles based on the European Convention on Human Rights. Council of Europe.
“About the Council of Europe”. Council of Europe. 1 March 2008. 5 October 2008
http://www.coe.int/T/e/Com/about_coe/.

126
Council of Europe. Convention for the Protection of Human Rights and Fundamental Freedoms as
Amended by Protocol No. 11. Strasbourg, France: Council of Europe, 2003. 6-7.

127
Carolyn Evans and Christopher A. Thomas. “Church-State Relations in the European Court of Human
Rights”: 699-725.

128
See for example, Aernout Niewenhuis. “The Concept of Pluralism in the Case-Law of the European
Court of Human Rights”. European Constitutional Law Review 3 (2007): 372.

129
Carolyn Evans and Christopher A. Thomas. “Church-State Relations in the European Court of Human
Rights”: 700.

130
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 29.

131
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 29, 33.

132
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 29.

133
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 3.

192

134
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 9.
135
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 31.

136
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 29-30.

137
Judgment on the merits delivered by the Grand Chamber. Folgero and Others v. Norway. No.
15472/02. 29 June 2007. 35.

138
European Court of Human Rights. Press Release Issued by the Registrar: Grand Chamber Judgment
Folgero and others v. Norway. European Court of Human Rights. 29 June 2007. 1 November 2008
http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=Folgero%20%7
C%2015472/02&sessionid=15410335&skin=hudoc-pr-en.

139
European Court of Human Rights. Press Release Issued by the Registrar: Grand Chamber Judgment
Folgero and others v. Norway. European Court of Human Rights. 29 June 2007. 1 November 2008
http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=Folgero%20%7
C%2015472/02&sessionid=15410335&skin=hudoc-pr-en.

140
European Court of Human Rights. Press Release Issued by the Registrar: Grand Chamber Judgment
Folgero and others v. Norway. European Court of Human Rights. 29 June 2007. 1 November 2008
http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=Folgero%20%7
C%2015472/02&sessionid=15410335&skin=hudoc-pr-en.

141
The Treaty of Amsterdam, Article 6a (1997).

142
Employment Equality Directive. 2000/78/EC.

143
The Treaty of Amsterdam, Article 119 (1997).

144
European Commission. Affirming Liberty, Democracy and the rule of law. Brussels: Information and
communication" unit, Directorate-General JUSTICE, FREEDOM AND SECURITY, 2004.

145
“Fighting all Forms of Discrimination in the European Union”. European Commission. Dec. 2003. 7
May 2008 http://ec.europa.eu/justice_home/fsj/rights/discrimination/fsj_rights_discrim_en.htm.

146
The implementation of the Treaty was stalled when it was rejected in public referenda in France and The
Netherlands. There are 27 nations in the EU.

147
European Commission. Affirming Liberty, Democracy and the rule of law.

148
Emily A. Moseley. “Defining Religious Tolerance: German Policy Towards the Church of
Scientology”. Vanderbilt Journal of International Law 30 (1997): 1129.

149
Emily A. Moseley. “Defining Religious Tolerance: German Policy Towards the Church of
Scientology”: 1130.

150
Scientology Press Office. “Church of Scientology of Moscow Wins Landmark Decision in European
Court of Human Rights—Confirmation of Scientology's Religious Bona Fides by the Highest Court in

193

Europe”. Scientology Online. 4 April 2007. 16 August 2008
http://www.scientologytoday.org/press/704042347361_scn-int.html.

151
European Court of Human Rights. Press Release Issued by the Registrar: Grand Chamber Judgment
Folgero and others v. Norway. European Court of Human Rights. 29 June 2007. 1 November 2008
http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=Folgero%20%7
C%2015472/02&sessionid=15410335&skin=hudoc-pr-en.

152
Emily A. Moseley. “Defining Religious Tolerance: German Policy Towards the Church of
Scientology”: 1142.

153
Judgment on the merits delivered by the Grand Chamber. Leyla Şahin v. Turkey no. 44774/98, § 123,
ECHR 2005.

154
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04.

155
Curran v. Mount Diablo Council of The Boy Scouts 17 Cal.4
th
670 (1998).

156
Randall v. Orange County Council 17 Cal 4
th
736 (1998).

157
California Civil Code 51§b.

158
California Civil Code 51§b.

159
The five current legislators in the 2007-08 legislative term are: Sheila Kuehl, D-Santa Monica (terms
out at the end of 2008), who heads up the Senate Health Committee; Mark Leno – D – San Francisco, who
helms Assembly Appropriations, John Laird – D – Santa Cruz, who chairs the Assembly Budget
Committee; Christine Kehoe – D – San Diego, who Chairs the Senate Energy, Utilities and
Communications Committee and Carol Migden – D- San Francisco (lost her seat in the primary to Mark
Leno), who helmed the Senate Committee on Labor and Industrial Relations.

160
This paper uses the current conventions for amending statute language. Amended language is in italics.

161
New Jersey Law Against Discrimination. Title 10:1-3. Italicized portions are suggested statute
language added by the author.

162
This was clear when Newdow brought a second case against the EGUSD’s Pledge requirements in 2005,
Newdow v. Congress, 383 F. Supp. 2d 1229 (E.D. Cal 2005).

163
California Education Code§52720.

164
Myers v. Loudon County Public Schools 418 F.3d 395 (4th Cir. 2005). The decision is flawed for other
reasons, as well. It relied on the dicta of the four justices who wrote opinions in Newdow, opinions it
acknowledged were not the law. It again avoided utilizing the tests developed by the Supreme Court, and
relied on ceremonial deism without distinguishing between impacts on children and impacts on adults.

165
There is reason to believe that these dicta will become law. See Pierre N. Leval. “Madison Lecture:
Judging Under the Constitution: Dicta about Dicta”. New York University Law Review 81 (2006): 1249-
1282.

194

166
Zorach v. Clauson 343. U.S. 306 (1952). 308n1.

167
Powell v. Bunn 59 P3d 559 (Or.App. 2002).

168
Roberts v United States Jaycees 468 U.S. 609 (1984).

169
Stephen Gey. “Atheism and the Freedom of Religion”: 251.

170
Stephen Gey. “Atheism and the Freedom of Religion”: 251.

171
Alister McGrath. The Twilight of Atheism: The Rise and Fall of Disbelief in the Modern World”. 270,
279.

172
Jeni Loftus. “America’s Liberalization in Attitudes towards Homosexuality, 1973 to 1998”. American
Sociological Review 66 (2001): 762.

195
Chapter Six: Conclusion
In a society that obsesses about class, gender and
racial categorizations, it is easy to forget that other, less
visible groups suffer the painful effects of oppression.
Because the damaging effects of racism, classism, and sex
discrimination are so extreme, society tends to dismiss
other forms of oppression that appear to be less severe. But
if, as a society, we truly hope to achieve, “liberty, and
justice for all,” we must acknowledge and combat all forms
of oppression. This includes not only the most egregious
kinds of oppression, but also oppression that touches only a
relative few. Atheists, who suffer from that of the latter
category, make up only four to tend per cent of the
American population.
1

Review
The analysis of legal scholar Jennifer Gresock is useful because it addresses a
form of discrimination. While the discrimination faced by American atheists does not
match what was faced by severely persecuted groups such as African-Americans, Jews,
Native Americans, Japanese-Americas and homosexuals, among others, what they face
nevertheless is a form of inequity that emanates from misconceptions about atheists’
moral character. That the form this exclusion has taken is far less vitriolic, pervasive,
lethal and pernicious than what other groups have experienced does not make the
injustices experienced by atheists something other than discrimination.
This dissertation has attempted to link the prevailing public distaste for atheists to
their perceived rejection of American Civil Religion, and then showed how these
misconceptions have limited their ability to obtain justice from the courts in the
application of the CRA and violations of the Establishment Clause of the First
Amendment. Utilizing the case studies of the Newdow and Dale Supreme Court cases as
examples, the study illustrates the strength of this Civil Religion. The study finds that the
196
Civil Religion is a de facto religion through its unquestioning state support of the
Supreme Court, Congress and state legislatures such as that of California. This analysis
describes how this religion is state-supported through two key mechanisms that were
litigated in Dale and Newdow. This Civil religion is mandated in the classrooms of
millions of schoolchildren every day in the form of the Pledge of Allegiance. Thirty-nine
states enforce this stricture through state statute. It finds its youthful, eager, idealized and
wholesome incarnation in the public/private institution known as the Boy Scouts of
America, which receives federal funds and is blessed with a Federal Charter.
The events that followed 9/11, as well as the two court cases Newdow and Dale
highlight how ingrained this de facto religion is and how difficult it is to reject it. They
demonstrate how failing to conform to this religion has impacted one unpopular minority
group, atheists, through permitted discrimination and through forced acceptance of the
statement of belief in a monotheistic God embodied in the Pledge of Allegiance.
Prejudice against atheists has permitted these practices to continue. Atheists are
the most mistrusted of all American religious groups. This enmity is not new and has
centuries of history behind it. Atheists have long been perceived as scurrilous and
untrustworthy because of the assumption that lacking a belief in God who can punish
misdeeds in the afterlife, many humans will turn to amorality. Essentially, God serves as
an insurance policy against men’s worst behavior. This tenet was codified in courtroom
proceedings under English Common law and later became the law of the United States
where atheists were prohibited from holding public office, sitting on a jury pool or even
having their deathbed wishes honored.
197
This hostility towards atheists is enshrined in the principles of The Boy Scouts of
America (BSA), the four million member organization for boys that embodies Civil
Religion. The BSA holds that an individual cannot be an upstanding American citizen
without a belief in God. As a result, the BSA has an official policy of rejecting atheists
as members of the organization, even if the boy has a long-standing, unblemished record
prior to his atheism becoming an issue. Unfortunately, the courts seem to see little
contradiction between previous decisions that forced private organizations to include
women and girls as full members and their consistent decisions that permit the publicly-
funded BSA to exclude atheists, who are otherwise protected in employment and public
accommodations under a variety of federal and state laws.
Most troubling is the Court’s reaction to Michael Newdow’s legal complaint
about the Pledge of Allegiance. The Pledge of Allegiance is currently recited in public
school classrooms in 39 of the 50 states.
2
After 9/11, eight additional states mandated
that schools lead students in the Pledge at least once a week.
3
The Pledge, although it is a
rather new invention, cannot be envisioned by the public without the words “Under
God”, even though those words were added only 54 years ago. This current form of the
Pledge is so treasured that when the Ninth Circuit court rendered its first decision
declaring the Pledge to be unconstitutional, the public backlash was intense enough that
the Court stayed the decision the very next day.
When the judges wrote of the Pledge in their Newdow dicta, they spoke of the
Pledge as if it had always been a part of American history and not a fairly new tradition.
The justices skirted the issue of its constitutionality by claiming that the Pledge that
invokes God is not a prayer. Apparently, since it was non-sectarian and did not invoke a
198
specific God, it was lawful. The Court of Appeals for the Fourth Circuit recently
repeated these opinions as if they could become stare decisis, even though that court
understood that the statements in Newdow did not set precedent.
4
If the Supreme Court
dicta in Newdow do become law it will overturn much stare decisis that had previously
offered special protections to children of minority faiths, even from the most de minimus
of religious practices in the classroom.
It was clear in Newdow that the justices of the Supreme Court perceive the
acceptance of God and country as so pervasive that they had difficulty understanding
why Newdow could be offended at all by this purportedly non-religious mention of God.
In oral arguments, they repeatedly contended that a mention of God is not a religious act
or a prayer, a position that the atheist found “bizarre”.
5
One justice even argued with him
that the generic God was so inclusive that Newdow might be able to come to terms with
it, who again repeated that he believes in “no God”.
6
The justices were so oblivious to
Newdow’s point of view that they seemed to respond as if this was a mere complaint
about ceremonial deism. However, never before had the Court had difficulty
comprehending the difference between state endorsements that directly impact children,
such as the setting in which the Pledge must be said, and those that do not.
In the Boy Scouts cases, the courts also seemed to be making exceptions for
practices that would otherwise be forbidden if they impacted persons protected under the
Civil Rights Act of 1964 as well as various state anti-discrimination statutes. The BSA’s
image as the quintessence of a pure, fresh-faced Civil Religion has actually provoked
judges to criticize litigants for daring to question the God of the Declaration of
Independence.
7
Ultimately, the Supreme Court ruled that the BSA’s practice of
199
precluding homosexuals (and by extension, atheists) from membership was legal because
of a right to expressive association, even though, until that time, the BSA’s position on
homosexuals and atheists was not clear to the public.
It is hard to imagine, as Jennifer Gresock has noted, that the Court would permit
similar behavior if the target of exclusive policies were African-Americans or Christians.
Beyond that, there are other issues associated with the way that the BSA operates that
raise the question of its purported private status. Now that it has received yet another
government endorsement from Congress through the provisions of No Child Left Behind
and now that the Oregon Supreme Court has ruled that the BSA can engage in deceptive
recruitment practices so that they can continue to encourage public school boys to join,
will this strategy backfire? The fact that BSA can openly recruit in public schools with
full government backing, while public schools must follow the strictures of Title II of the
Civil Rights Act of 1964 may be a cause of action on the grounds of violations of the
CRA, although that remains to be seen.
Either way, the results of these cases were to tell individuals of minority religious
groups --atheists, non-theists or polytheists--to either conform or “close your ears”
8
or,
perhaps, close your minds. It is difficult to foresee any court approving actions that
treated children of theistic religions with the same indignity. If in fact, as Justice
O’Connor noted, it would be problematic if the Pledge contained the words “Under
Allah”, how would the mention of the same God with a different name not be a religious
expression? Under most circumstances, this would constitute an impermissible
sponsorship of a state religion as well. But, somehow we are led to believe that the word
200
“God” is not a religious statement even though Christians and Jews are warned against
taking God’s name in vain.
Moving on, this report has also proposed several political solutions for those who
litigate again on the issue of the Pledge or on the Boy Scouts. First of all, current
Supreme Court precedent remains untouched by the Newdow decision. In fact, in the
Ninth Circuit states, the Newdow II decision is still stare decisis, as is evidenced by the
results in California’s Eastern District court decision on another Pledge lawsuit brought
by Michael Newdow in 2005.
9
In addition, local activists have found success against
the BSA when they opt to deny them pecuniary privileges they had been receiving at
nominal or no cost for decades. In the absence of a national policy that honors local
traditions of toleration of non-conformists, several cities have been successful in their
efforts to enforce their anti-discrimination ordinances by refusing to give the taint of
government sanction of the BSA’s practices. So far, the courts have let local
governments determine their own codes of fairness untouched by the courts.
Finally, I suggested some legislative action that could be taken on both the Pledge
and the BSA issue to ensure more equity in the future. For example, activists could work
with state legislatures to amend the codes so they cannot be interpreted as narrowly as the
Ninth Circuit interpreted the Jesse Unruh Civil Rights Act in California. Action could be
also taken on the federal level to enforce Title II of the Civil Rights Act given the
requirements under No Child Left Behind.
Chapter Five covered additional policy prescriptions available to interested parties
wishing to take further against the Pledge and the BSA. In addition to existing precedent,
activists can draw upon international law and on the policy statements of the federal
201
government in the U.S Commission on International Religious Freedom (USCIF). In
particular, the United States’ purported policy on freedom of religion and conscience is
clearly stated on the homepage of the USCIF, which also recites crucial international law
as a basis for its policy recommendations. Moreover, as the European Union and the
Council of Europe move towards more forcibly requiring that member countries adhere
to the human rights directives in the treaties that bind them, they may begin to forge
ahead of the U.S. as the model of religious freedom in the world, creating new
opportunities for activists to insert legal best practices of foreign nations into their
arguments in favor of expanded religious freedoms for atheists and other minority
religionists.
Despite some arguably promising future strategies, it my opinion that atheists face
an uphill battle in winning back the freedoms lost in Dale and Newdow. The current
climate of reverence of the de facto religion along with the increasing conservatism of the
Supreme Court may make it difficult for atheists to improve their situation in the current
milieu. In the event that legislative or judicial strategies do not work, this conclusion
suggests some addition approaches that might be effective over the longer-term.
Arguably the greatest challenge that atheism faces in terms of wider public
acceptance is its public face.
10
Generally speaking, the face of atheism on display in the
mass media is that of the “secular fundamentalists”.
11
Adding to this image are the
voices of the recent “new atheist”
12
authors such as Christopher Hitchens, Samuel Harris,
and Richard Dawkins, in addition to Michael Newdow and other ardent atheists who
largely argue for strict separation of church and state, and who are clearly anti-religion.
Some are unapologetically anti-religious, “blunt, no-holds attacks on religion in different
202
registers”, as The Nation. described the recent works by Harris and Hitchens.
13
While it
is clear they appealed to many American readers, they nevertheless perpetuate the image
of the “misanthropic atheist”.
14
Instead of reaching out to other seculars, humanists and
even the religious to find common ground over issues of mutual concern, these
individuals seem to be satisfied with insulting religious leaders and in belaboring the
usual points about the impossibility of God’s existence. With 90% of Americans
claiming a belief in God, this is not the best approach to take if one is looking for greater
acceptance.
With few voices of a less vitriolic atheism on display in the mass media, and with
many of the recent works openly impugning believers for their irrationality and lack of
common sense, it is easy to see why public images of atheists remain negative. This
strategy is counterproductive and discourages less dogmatic atheists from speaking
publicly in defense of atheists.
. While there is some evidence that some atheists hide their identities from their
communities
15
, to many commentators, the image of the strident non-believer is
pervasive. Activist atheisms’ inability to reach beyond a small cadre because of the
divisiveness of its message was noted nearly thirty years ago by a scholar who described
the rhetoric of atheists like Madolyn Murray O’Hair as possessing a “desperate” tone that
quietly expresses their frustration with failure in garnering wider public support.
16
Like
Alister McGrath nearly 30 years later, Hart attributes the small membership of atheist
organizations to both its negative message and its inability to create a cohesive
community of belonging and belief.
17
The “New Atheists” of the early 21
st
century are
equally as vociferous in their approach to the topic of atheism as O’Hair once was.
203
Moreover, the messages of O’Hair, Harris, Hitchens and others like her have only
contributed to the movement’s marginalization. Truly, activist atheism has learned
nothing from the past, according to both men.
Ironically, in 1961, scholar Martin Marty seemed convinced that the American
infidel had disappeared. This prediction was clearly erroneous as the American Atheist is
alive and well in 2008. Marty summarized his view of the freethought movement and the
reasons for its failure, a view that does not differ much from Hart’s or McGrath’s:
That minority status of the freethought tradition arose from
its own character. Lacking genius or profundity,
misunderstanding the American temper, doctrinaire,
negative, extremely individualistic as its proponents often
were, they found union and organization difficult.
18

The atheists that Hart, McGrath and Marty describe are actually, from a sociological and
psychological standpoint, quite normal in how they choose to cope with an existence as
stigmatized individuals. In attempts to normalize themselves, some members of
marginalized groups will typically engage in “societal reinterpretation of the category”.
While the author was primarily discussing homosexual movements to de-marginalize gay
identities, this mechanism seems to be at work within some atheist circles as well. Such
marginalized groups will create an image of supra-normalcy rather than normalcy; and
through this process, the group re-categorizes itself as “as a chosen people”.
19
Some of
the behavior includes the kind of disparagement of mainstream groups as part of an
attempt to normalize themselves.
Prospects for Wider Acceptance
Strategies aimed at internal de-stigmatization do not reach out beyond the group
and will do little to convince Americans that atheists are normal, decent people just like
204
them, deserving of respect and dignity. For atheism to receive wider acceptance in
society, atheists, humanists and secular humanists must seek to build a wider
constituency, not limiting itself to its most dogmatic proponents who demonstrate the
very disrespect for differing beliefs that they impugn when it is targeted at atheism.
20

This would be the first prong of a strategy that allows atheism to work towards gaining a
wider understanding among the populace while avoiding a compromise of beliefs.
The online group called “The Brights” provides a good example of a more
positive approach to atheism.
21
The Brights touts itself as a movement of humanists and
atheists who seek to build a constituency of individuals who possess a naturalistic
worldview. While seeking to improve the image and position of the humanist in the
world, it aims to do so through social action, rather than through insistence on individual
philosophy. The Brights counts among its constituency atheists, Buddhists, Wiccas,
Unitarians and Jews. A core belief is that there has to be a greater attempt to provide a
positive face to belief systems that do not comprehend the supernatural.
22

Like the Brights, atheists must seek out natural allies but should expand beyond
the core constituency with the aim of demonstrating to others why non-believers do not
fit the stereotypes they have of them. There are certainly prospects even among
America’s settled religions, most of which would qualify as among the more liberal sects
in the nation. This may be the perfect time; journalist E.J. Dionne is confident that
seculars are increasingly finding points of unity with religious individuals on matters of
social justice, peace and the environment.
23
Unitarian Universalists (UUs), Reformed
Jews, the growing numbers of the unchurched and Buddhists are possible partners in a
205
larger campaign to grow the influence of minority religions that do not require a belief in
God for membership.
The Unitarian Universalist Association’s (UUA) own surveys reveal that half of
all Unitarians call themselves humanists.
24
Another survey of UU members in Virginia
and West Virginia found that atheists and humanists also comprised over half of all
members in those states.
25
In fact, atheist Congressional Representative Pete Stark is a
Unitarian Universalist. The Humanist, the magazine of the American Humanist Society,
has called Unitarian-Universalism “the largest single organization of humanists in the
United States.”
26
One of Unitarian-Universalism’s seven guiding principles is “a free and
responsible search for truth and meaning”.
27
Moreover, the lack of a “creedal standard for
membership”
28
is welcoming to religious non-traditionalists such as atheists, humanists
and pagans.
29

Reform Judaism, despite copious mentions of the divine in the standard liturgy,
could have as much as eight per cent atheists.
30
Moreover, Jewish law does not require
an individual to declare a belief in God to be deemed a Jew. Other than conversion, the
principle requirement is that the individual’s mother be Jewish.
31

Buddhists can most certainly be considered natural allies. Buddhism has many
aspects to it, but it is generally a non-theistic religion. On behalf of the nation’s hundreds
of thousands of Buddhists
32
, a group representing many American Buddhist temples and
organizations filed an amicus curiae brief in favor of Michael Newdow’s suit against the
Pledge of Allegiance. Like Newdow, the Buddhists found the insertion of the words
under God an establishment of religion that marginalized any individual who did not
subscribe to Judeo-Christian notions of a Supreme Being.
33
There could be many points
206
of common agreement between atheists and Buddhists aside from the Pledge. Like
atheists, the reason Buddhists opposed the current Pledge is because children were forced
to defer from taking part in a ritual where they could express their patriotism because it
compelled them to state a belief in a God that they did not believe in.
34

Cultivating a Kinder Image
Americans must come to view atheists as more complex than the images that they
currently have of them. In Chapter Two, I referred to two conflicting images that
Americans hold of non-believers. They are either the lowest of the criminal class, or the
wealthy super-elite of this country. As that section noted, there is reason to believe that
atheists are more complex than this, and far from the criminal class imagined by some.
Moreover, other research suggests that a nation’s religiosity does not ensure societal
well-being, but may actually impede it. The most secular nations also have the highest
standards of living.
35
Nevertheless, the image remains and should be countered.
First of all, I recommend that atheists find a source of funding for a quality,
statistically significant random survey of Americans that asks them how they view
atheists, why they view them this way, and what atheists could do to improve their image
with them. Possible foundations that might be open to funding include the Lilly
Endowment, the John Templeton Foundation, the National Science Foundation and the
Pew Charitable Trusts.
36
This strategy would be furthered by the use of focus groups
which would allow researchers to dig deeper into participant’s beliefs.
Using the results of these mechanisms, media campaigns, including paid as well
as earned media, and messaging points could be developed that speak directly to
Americans’ concerns while avoiding a comprise of atheists’ beliefs. A survey document
207
would also allow atheists to focus their campaign on those Americans who possess the
demographic and personal qualities that the analyzed showed would be more likely to be
open to learning about atheists and perhaps seeing them in a different light.
With that information in hand, atheists could then place op-eds, advertisements
and letters to the editor in selected publications that appeal to the swath of the public that
has been found to be receptive to learning more about atheists. If the money is available,
television ads would be shown during programs where the viewership is likely to be from
the targeted audience.
Additionally, while atheism is not a church per se, it also could follow the
examples set by the UUA and the United Methodist churches in recent years, both of
which have run successful commercial campaigns and have seen membership growth
derived from them. At present, Unitarian Universalism is operating regional media
campaigns that feature advertising content during the John Stewart and Steven Colbert
shows, two programs that target possible members. The United Methodist Church has
been running advertisements on CNN in recent years that portray the denomination as
open, warm and welcoming to a diverse group of individuals.
Part of the media strategy might include an entertainment component that would
seek to create an atheist character on a primetime show or in a major motion picture.
Instead of the stereotype of the curmudgeonly atheist, this character could potentially be a
person on the show or movie who just happens to be an atheist. She is a regular person,
she has a family, a job, friends, and faces many of the usual challenges that life poses. I
suggest this avenue because some research suggests that homosexuals’ increased
acceptance in American society might be attributable to sympathetic images that have
208
been portrayed of lesbians and homosexuals on television.
37
Other studies have found
that individuals who viewed upbeat images of homosexuals were more likely to show
positive attitudes towards homosexuals after watching the videos.
38
While this approach
could pose problems – analyses have also suggested that primetime television portrays
stereotypical images of gay individuals
39
- it could be a good course to follow if the
created character or characters does not fit the stereotypes of the atheist criminal or the
wealthy, misanthropic skeptic that individuals mentioned in the UM study.
A final strategy to consider is in assisting other minority religionists in their
efforts to overturn local practices that impede free exercise or that create the semblance
of an establishment. Atheists could form partnerships with members of other religious
groups to litigate matters of church and state, demonstrating an understanding of common
concerns among adherents and non-adherents alike, so as to overcome the impression that
the only goal atheists seek is to strip all religious references from public life.
Prospects for Future Study
This study covered a lot of territory but left many questions unanswered. Perhaps
because it did cover so much ground, the analysis was quite limited in some areas and
was not deep as it could have been. There are several topics that could be studied in far
greater detail, perhaps comprising a full chapter or an entire report.
In Chapter Two, I touched upon the current day messages on television and
especially right-wing talk radio and television concerning atheists. In order to get a better
feel for the actual programming content, a possible angle would include a content
analysis of television and radio. The elements scrutinized could include a content
analysis of radio and television talk shows that explores how often atheists appear on
209
these shows, the points of view expressed, as well as the genuine tone of discussion about
atheists on television talk shows and talk radio.
Chapter Four discussed the Newdow case, but did not delve into the state by state
Pledge of Allegiance requirements in any detail. While an analysis has already been
done of the Pledge statutes prior to Newdow
40
, it could be fruitful to take an in-depth look
at the statutes in the eight states that have passed Pledge laws since the Newdow decision,
any changes that had occurred in the 31 states that already had Pledge of Allegiance
mandates, as well as the actual practices that occur in the 11 states that apparently have
no stipulations regarding the Pledge of Allegiance in the classroom setting. In particular,
scholars could examine the legislative debates surrounding the passage of the states’
legislation to learn how much of this effort was tied up with religious fervor. Some
initial, unpublished work done by the author has found that the passage of new state laws
on moments of silence seemed to coincide with this new wave of Pledge legislation,
suggesting that the zeal that surrounded the Pledge was religious in nature, contrary to the
claims of the Supreme Court.
Another question raised by the Newdow case is why he was the subject of new
precedent on standing, when Supreme Court precedent honored states’ interpretations of
custodial arrangements. The ruling calls into question whether Newdow was the subject
of such a punitive ruling on his standing because he was the member of an unpopular
minority who was pursuing a widely-publicized crusade against a beloved tradition.
Research into previous instances where the court had over-ruled states’ interpretation of
family law might or might not reveal a pattern regarding the parent’s religion or political
stances.
210
Chapter Five briefly explored the range of religious freedoms for minority adherents
in Europe. I suggest that future studies undertake a far more expansive investigation of
the range of freedoms available to atheists in the industrialized world or worldwide,
especially as such analyses are hard to find. Work for the review would include research
on the laws in various nations, the results of court cases, as well as the stories of atheists
in those nations who have suffered persecution or discrimination due to prejudices and/or
incompletely enforced laws. Such research would help to increase our knowledge of the
challenges faced by atheists in a world that some claim is increasingly religious.
41

In closing, there is no doubt that Americans remain more religious than other
western industrialized nations
42
, but data shows that the purported reinvigoration of
American religiosity since 9/11 is and was a fiction. Nevertheless, this “spike” in
religiosity was used as another cudgel against atheism, as if the results of the Dale case,
the events following 9/11, and the reaction to Michael Newdow’s attempts to eliminate
the words “under God” from the Pledge of Allegiance did not already make it abundantly
clear that atheists are not considered full members of American society because of their
inability to swear allegiance to both God and country.

211

Chapter Six Endnotes
1
Jennifer Gresock. “No Freedom from Religion: The Marginalization of Atheists in American Society,
Politics, and Law”: 569.

2
Derek Davis. “The Pledge of Allegiance and American Values”: 667.

3
Derek Davis. “The Pledge of Allegiance and American Values”: 667.

4
Myers v. Loudon County Public Schools 418 F.3d 395 (4th Cir. 2005).

5
Transcript of oral arguments in Elk Grove Unified School District v. Newdow. U.S Supreme Court. 24
March 2003. 5 October 2008 http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-
1624.pdf. 34.

6
Transcript of oral arguments in Elk Grove Unified School District v. Newdow. U.S Supreme Court. 24
March 2003. 5 October 2008 http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-
1624.pdf. 35-36.

7
Welsh v. Boy Scouts of America 993 F. 2d 1267 (7
th
Circuit, 2003).

8
Quoted from Young v. Southwestern Savings and Loan Assn. 509 F.2d 140, (Fifth Circuit, 1975). 140-
41.

9
Newdow v. Congress, 383 F. Supp. 2d 1229 (E.D. Cal 2005).

10
For an example of an article that criticizes the approach being taken by the most public atheists, See.
Tom Krattenmaker. “Secularists, what happened to the open mind?...” USA Today. 20 August 2007:
11A.

11
Jeff Nall. “Overcoming Antagonistic Atheism to Recast the Image of Humanism”. The Humanist 66
(2006): 31.

12
Ronald Aronson. “The New Atheists” The Nation. 284 (2007): 11-14. E.J. Dionne, Jr. Souled Out:
Reclaiming Faith and Politics After the Religious Right. Princeton: Princeton University Press, 2008.
13
E.J. Dionne, Jr. Souled Out: Reclaiming Faith and Politics After the Religious Right. 11.

14
Jeff Nall. “Overcoming Antagonistic Atheism to Recast the Image of Humanism”: 32.

15
Bridget Ann Fitzgerald. “Atheism in the U.S. and the Construction and Negotiation of a Non-Normative
Identity”. Diss. State University of New York at Albany, 2003. Albany, NY: State University of New
York at Albany, 2003. AAT 3096390.

16
Roderick P. Hart. “An Unquiet Desperation: Rhetorical Aspects of ‘Popular’ Atheism in the U.S.” The
Quarterly Journal of Speech 64 (1978): 33.

17
Roderick P. Hart. “An Unquiet Desperation: Rhetorical Aspects of ‘Popular’ Atheism in the U.S.”: 35.
Alister McGrath.. The Twilight of Atheism: The Rise and Fall of Disbelief in the Modern World”. 269.

18
Martin E. Marty. The Infidel: Freethought and American Religion. New York: Meridian Books, 1961.
12.

212

19
Carrol A.B. Warren. “Destigmatization of Identity: From deviant to charismatic”. Qualitative Sociology
3 (1980): 67-68.

20
Ronald Aronson. “The New Atheists”: 11-14.

21
“The People” The-Brights.Net. Online. Internet. Available 5/12/08 http://www.the-brights.net/people.
The Brights have been criticized for the use of this term, but the group’s writings insist that it is a
neologism intended to connote individuals working together for a brighter future.

22
See generally, http://www.the-brights.net/.

23
E.J. Dionne, Jr. Souled Out: Reclaiming Faith and Politics After the Religious Right.

24
James Casebolt and Tiffany Niekkro. “Some UUs are More U than U: Theological Self-Descriptors
Chosen by Unitarian-Universalists”. Review of Religious Research 46 (2005): 235.

25
James Casebolt and Tiffany Niekkro. “Some UUs are More U than U: Theological Self-Descriptors
Chosen by Unitarian-Universalists”: 239.

26
Edd Doerr. “Humanism and Unitarian Universalism”. Humanist 58 (1998): 37.

27
Unitarian Universalist Association of Congregations. “Our Principles”. Unitarian Universalist
Association. 30 July 2007. 15 March 2008 http://www.uua.org/visitors/6798.shtml.

28
James Casebolt and Tiffany Niekkro. “Some UUs are More U than U: Theological Self-Descriptors
Chosen by Unitarian-Universalists”: 240.

29
Richard Wayne Lee. “Strained Bedfellows: Pagans, New Agers, and ‘Starchy Humanists’ in Unitarian
Universalism”. Sociology of Religion 56 (1995): 379-396. The article discusses how Unitarian
Universalism, despite its largely humanistic membership in the mid-1990’s assimilated pagans, new-agers,
Buddhists and Native American spiritualists into its congregations.

30
Many Jewish atheists do not reject religious practice, because in Judaism one does not have to believe, to
practice, according to David Benatar. “What’s God Got To Do With It? Atheism and Religious Practice”
Ratio 19 (2006): 383-400.

31
Michael B. Herzbrun. “Loss of Faith: A Qualitative Analysis of Jewish Nonbelievers”. Counseling and
Values 43 (1999): 129.

32
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04: 21.

33
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04: 1.

34
Brief Amicus Curiae of Buddhist Temples, Centers and Organizations Representing over 300,000
Buddhist Americans in Support of Respondent. Elk Grove Unified School District v. Michael Newdow,
2/12/04: 26.

213

35
Gregory S. Paul. “Cross-National Correlations of Societal Health with Popular Religiosity and
Secularism in the Prosperous Democracies: A First Look”. Journal of Religion and Society 7 (2005). 10
May 2008 http://moses.creighton.edu/JRS/2005/2005-11.html.

36
Christopher D. Bader, F. Carson Mencken and Paul Froese. “American Piety 2005: Content and
Methods of the Baylor Religion Study” Journal for the Scientific Study of Religion 46 (2005): 447. The
authors recommend these foundations as promising grant-makers for those seeking to conduct research on
religion in America. They were not speaking specifically to the topic of atheists.

37
Jennifer M. Bonds-Raacke et al. “Remembering Gay/Lesbian Media Characters: Can Ellen and Will
Improve Attitudes Toward Homosexuals?”. Journal of Homosexuality 53 (2007): 19.

38
Marina Levina, Craig R. Waldo and Louise F. Fitzgerald. “We're Here, We're Queer, We're on TV: The
Effects of Visual Media on Heterosexuals' Attitudes Toward Gay Men and Lesbians”. Journal of Applied
Psychology 30 (2000): 738-758.

39
Gregory Fouts and Rebecca Inch. “Homosexuality in TV Situation Comedies Characters and Verbal
Comments”. Journal of Homosexuality 49 (2005): 35-45. This content analysis found that the few gay
characters on television were male and were more overt about their sexuality than the heterosexual
characters.

40
Derek Davis. “The Pledge of Allegiance and American Values”: 657-668.

41
Christianity Today. “The New Intolerance”. Christianity Today 51 (2007): 24-25.

42
This data is widely cited. Gregory S. Paul. “Cross-National Correlations of Societal Health with Popular
Religiosity and Secularism in the Prosperous Democracies: A First Look”.

214
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Abstract (if available)

Abstract In the post 9/11 era the United States seems to have experienced a revival in religious sentiment. The religious fervor following 9/11 added to the social ostracism already experienced by atheists. This was consistent with a long history of exclusion but was more public in nature.

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Asset Metadata

Creator Weiler-Harwell, Nina (author)

Core Title Attacking atheists: doing one's duty to God and country in 21st century America

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Political Science

Publication Date 12/05/2008

Defense Date 06/13/2008

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag atheists,Boy Scouts of America,Discrimination,Newdow,North America,OAI-PMH Harvest,Prejudice,Religious beliefs

Place Name USA (countries)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Renteln, Alison Dundes (committee chair), Stanford, Craig (committee member), Wong, Janelle S. (committee member)

Creator Email nweiler@aarp.org,nweiler@usc.edu

Permanent Link (DOI) https://doi.org/10.25549/usctheses-m1877

Unique identifier UC1327382

Identifier etd-WeilerHarwell-2424 (filename),usctheses-m40 (legacy collection record id),usctheses-c127-136182 (legacy record id),usctheses-m1877 (legacy record id)

Legacy Identifier etd-WeilerHarwell-2424.pdf

Dmrecord 136182

Document Type Dissertation

Rights Weiler-Harwell, Nina

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Repository Name Libraries, University of Southern California

Repository Location Los Angeles, California

Repository Email cisadmin@lib.usc.edu