Ever notice that you almost never see the terms "equal rights" and "atheists" in the same sentence? Let me explain why.

Imagine a public high school with a serious discrimination problem, an institution with attitudes and practices about race, gender, and religion that are terribly outdated. Three students have decided they've had enough, and each sues to fight back against the unfair prejudice.

George, an African-American, has been excluded from the school's marching band because the band director is racist and will only let white kids participate. Lisa, an excellent math student, was denied membership in the school's math club because the teacher running the club feels that girls are naturally unfit for the field of mathematics. Tony, an atheist, is upset because his history teacher aggressively proselytizes Christianity, leading the class in a prayer each day and always encouraging the teens to "find Jesus."

As these three plaintiffs proceed through the courts to enforce their rights, we can learn much about the unique status of atheists in American society. George and Lisa, suing based on racial discrimination and gender discrimination respectively, will center their cases on basic principles of equal protection. Under the Fourteenth Amendment, no state or local government may deny citizens equal protection under law, and via this constitutional avenue minorities and women have successfully sought recourse against governmental discrimination.

Tony's case, however, will be much different. Tony will almost certainly base his lawsuit on the First Amendment's Establishment Clause, arguing that the injection of religion into his classroom violates important church-state separation principles. The Establishment Clause approach, bypassing the equal protection arguments utilized by most minorities, is reflexively used by most aggrieved atheist-humanist litigants objecting to governmental religiosity. Though rarely questioned, this stategy of downplaying equality arguments in favor of the Establishment Clause has had far-reaching consequences.

When George brings his racial discrimination claim, nobody will ask him to justify his case by showing that the founding fathers would have supported the notion of racial equality. As we all know, many of the founders owned slaves, and the concept of full equality for African-Americans would have seemed preposterous to most of them. Similarly, nobody will ask Lisa to justify her lawsuit by showing that the framers would have supported equality for women, because of course in the late eighteenth century the idea of full rights for women would have been viewed as radical. Indeed, the concept of equal protection—providing recourse through the courts to protect minority groups from discrimination—is very much a modern notion.

Tony, however, in bringing his Establishment Clause claim, will almost certainly be asked to demonstrate that the founding fathers would view his claim favorably. When any plaintiff brings an Establishment Clause case, questions of "the intent of the founders" will inevitably arise. Parties will always be asked: What would Adams, Jefferson, and Madison think of this claim? Rarely raised, however, is the simple but important question of whether the governmental action discriminates against a minority group.

This is partly because the Establishment Clause, in its essence, is not an identity-oriented remedy. Consider, for example, that even a Christian can bring an Establishment Clause lawsuit seeking the removal of a Christian cross from a public park. (In fact, this is exactly what happened in the case of Salazar v. Buono, a recent Supreme Court case.) The key question in an Establishment Clause case is not whether a minority group is being discriminated against, but instead the much more technical issue of whether the government has crossed a line, often vaguely defined, between church and state. In an equal protection case, on the other hand, the identity and rights of the minority plaintiff are foremost.

Thus, what we find is that the mere existence of the First Amendment, with its express religion language, has caused atheists and other religious minorities to ignore the identity-oriented and equality-oriented arguments that have so successfully enabled other groups to achieve social, legal, and political acceptance. While racial minorities, women, and even gays and lesbians have been demanding equality—and getting it—nonbelievers have always taken a less identity-oriented approach.

Unlike equal protection claims, Establishment Clause arguments are more impersonal by nature, usually void of much emphasis on identity or equality. The focus is on whether the government violated a technical constitutional principle going back to the eighteenth century, not on whether the individual plaintiff is being wrongly discriminated against. (Controversies over the Pledge of Allegiance illustrate this point well. Observers will inevitably ask whether the "under God" language would have been acceptable to the founders, rarely considering the simple question of whether a daily government-sponsored classroom recitation containing a religious truth claim discriminates against certain children in the class.)

Secular Americans have for too long overlooked the concepts of identity and equality. Public acceptance will only come to those who expect it and demand it, to groups that exude a level of pride, solidarity, and legitimacy, to those willing to stand up to defend their equal rights. Much progress has been made in America toward gaining equality for racial minorities, women, and gays and lesbians, yet progress toward acceptance of nonbelievers has remained dismally slow. The failure to recognize the importance of identity and equality is surely a big part of the reason.

And importantly, the secular community has reason to feel pride, solidarity and legitimacy. Bias against nonbelievers is unwarranted, as numerous studies show that secular individuals and societies tend to exhibit fewer social problems, with lower violent crime rates, lower teen pregnancy rates, higher rates of education, and many other statistics reflecting favorably on secularity. Common prejudices are likely to persist, however, until nonbelievers push back in a way that emphasizes not just church-state separation, but a demand for equality.

Moreover, even many religious Americans should realize that anti-secular bias empowers the religious right, giving religious conservatives undue influence in government and politics. Because of this, all of those who are concerned about the religious right—and that would include not just atheists, agnostics, and humanists but religious liberals as well—should consider whether demands for nonbeliever equality might be part of the answer. Tony, like George and Lisa, should be treated as an equal.


David Niose's forthcoming book, NONBELIEVER NATION: THE RISE OF SECULAR AMERICANS, will be released by Palgrave Macmillan in 2012.  Pre-order it here.


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