By David A. Niose
The Daily Record Newswire
Suppose, hypothetically, that a local school board passes a measure ordering that each school day must start with a ceremonial flag salute to “one nation, under Jesus.” As an attorney representing the interests of Muslims, Jews, Hindus, Buddhists, atheists and others who object to the new measure, what would you argue? Did you say an Establishment Clause violation? If so, you’re only half right.
A review of church-state caselaw might suggest, incorrectly, that the rights of religious minorities to be free from state-sponsored religion are defined by the limits of the First Amendment, particularly the Establishment Clause.
That limited view of church-state separation not only grossly underestimates the rights of religious minorities, it also ignores the struggle for equal rights that has, in many ways, defined modern American history and jurisprudence.
Whereas the Establishment Clause dates back to the Bill of Rights and the early days of the republic, the idea of equal protection — the right to be free from discrimination — is a relatively modern concept.
The 14th Amendment expressly added equal protection language to the federal Constitution in 1868, almost a century after the nation’s founding, and that language was still not successfully utilized as a legal remedy for minority groups until almost a century later. Liberty may have been a notion enthusiastically embraced by the founders, but equality for non-whites, women and other minorities certainly was not.
The emergence in the 20th century of equal rights jurisprudence as a means of combating discrimination resulted in significant advances for racial minorities, ethnic groups, women and, more recently, gays and lesbians. Nevertheless, equal rights arguments have been rarely utilized by religious minorities in disputes over governmental religious discrimination, because such disputes instead have consistently gravitated toward Establishment Clause arguments and analyses.
That was not problematic for religious minorities when courts enforced the Establishment Clause from a strict separationist position. Starting in the 1940s, the U.S. Supreme Court began issuing a series of Establishment Clause rulings that emphasized a strong separationist view that protected religious minorities, at least somewhat, from majoritarian religious dominance in public affairs.
The case of Everson v. Board of Education (1947) struck down use of public funds for religious instruction; McCollum v. Board of Education (1948) prohibited public schools from supporting release time for religious instruction; Engel v. Vitale (1962) struck down official school prayer; Abington School District v. Schempp (1963) prohibited public school Bible instruction; and numerous other cases reinforced the separationist position.
But despite these separationist precedents, serious challenges face today’s religious minority litigant in relying on the Establishment Clause. Recent rulings, for example, have found that governmental religiosity in the form of congressional chaplains, crosses on public land, and the endorsement of sectarian religious affirmations to be permissible under the Establishment Clause.
It is important to realize that, unlike equal protection, the Establishment Clause is not at its core an identity-based, discrimination-oriented remedy.
As such, even a devout Christian, assuming she believes in the concept of church-state separation, can bring an Establishment Clause case seeking removal of a Christian symbol from a public park (and, in fact, that happened in the recent Salazar v. Buono case, decided this year by the Supreme Court).
Discrimination and religious identity are rarely central issues in Establishment Clause cases, because the key question in such cases is the technical application of church-state separation, not inequality.
Since the plaintiff’s religious beliefs and identity are not necessarily important elements in Establishment Clause litigation, issues of discrimination, marginalization and inequality are frequently overlooked.
Governmental defendants (and their inevitable amicus supporters from conservative religious groups) will ignore issues of discrimination and instead focus on the intent of the founders, tradition or other historical references to validate their majoritarian religious actions.
After all, if we consider only the Establishment Clause, we must concede that some governmental intermingling with religion has existed even from the early days, whether it be congressional chaplains or occasional public expressions of piety by elected officials (once extremely rare, but now commonplace).
Though strong rebuttals to such historical arguments can be made even in an Establishment Clause context, experience has shown that the “wall of separation” constructed by the Establishment Clause is far from impenetrable.
In equal protection cases, on the other hand, history, tradition and the intent of the founders are weak, if not irrelevant, factors. Governmental defendants will rarely attempt to rebut a claim of racial or gender discrimination, for example, by arguing that such discrimination was acceptable to the founders (though, of course, both were).
As enlightened as many of the founders were for their time, they nevertheless accepted prejudicial views and practices on race, gender and even religion (the fury of anti-Catholicism that dominated the founders’ generation is rarely mentioned by those who support public religiosity today) that would be unacceptable and illegal today.
It is the relatively modern invention of equal protection, which was wholly absent from the original Constitution and Bill of Rights, that has enabled minority groups to seek recourse without considering whether Adams, Jefferson and Madison would have agreed with their position.
But because discrimination against religious minorities is rarely approached from such a standpoint, and is instead incorrectly analyzed solely from the standpoint of the Establishment Clause, we frequently see governmental religiosity rationalized through historical arguments, such as: Since the founders seemed to generally accept the notion of a monotheistic God, we should all accept governmental endorsement of that idea.
Yet the founders accepted discriminatory views on race and gender as well (and we can only imagine what they would think of gay rights), but we don’t accept such discrimination anymore. Neither should we accept prejudicial 18th century views on religion.
Therefore, facing discrimination in the form of governmental endorsement of exclusionary religious views, religious minorities should look beyond the reflexive tool, the Establishment Clause, to the more modern approach of equal rights.
Moreover, while equal rights arguments under federal law are strong, it is noteworthy that many state constitutions, including Massachusetts’, provide express language guaranteeing equal rights for religious minorities.
In an age when the Supreme Court seems to be taking a less separationist view of interpreting the Establishment Clause, minorities facing religious discrimination should be considering such alternatives.
At the Washington-based Appignani Humanist Legal Center of the American Humanist Association, that’s exactly what’s happening. There, attorneys representing one of America’s few growing religious demographics — those Americans who do not accept supernatural concepts as part of their ethical and religious world view - are at work initiating equal protection litigation to defend the rights of such minorities.
According to one of the most respected surveys of religious identity, the American Religious Identification Survey conducted by Trinity College in Hartford, Conn., those not affiliated with any religion have doubled nationally since 1990, to about 15 percent (and 22 percent in Massachusetts).
It wouldn’t be accurate to portray this group as oppressed — they are generally well educated and less prone than average to most social ills — but it is indisputable that they are often marginalized and treated as second-class citizens.
Their kids, for example, go to public school every day only to be told, through a daily state-sponsored flag-salute ceremony, that theirs is a country that is “under God,” not only directly contradicting what mom and dad say about the existence of a divinity, but also strongly implying that truly patriotic citizens must be “believers.”
With this type of official discrimination sanctioned by the government, is it any wonder that, despite statistics showing that secular Americans as a class are educated and productive citizens who contribute enormously to the betterment of society, they are among the most vilified minorities? That is a matter of discrimination, not just technical church-state separation.
The argument that equal protection on behalf of religious minorities has been underutilized is compelling, and clearly such efforts are overdue.
Until such rights are asserted, it is likely that religious minorities will often be treated not as first-class citizens but, at best, as a somewhat begrudgingly tolerated segment of the public, playing the role of spectator to official governmental religiosity that reinforces prejudice against them.
David A. Niose is a Fitchburg attorney and president of the Washington-based American Humanist Association.
