First Amendment

Is atheism protected under the First Amendment?

Yes. The First Amendment prohibits the government from punishing citizens for professing and exercising their religious beliefs—including a lack of religious belief. So how are atheists, who by definition do not have religious beliefs or exercise a religion, protected by the First Amendment?

First, atheists are protected by the Establishment Clause, which prohibits the government from establishing a government-sponsored house of worship or showing preference to one or all religions by passing laws to favor religion, or by forcing citizens to profess belief in religion or attend religious services.¹ This protects atheists from being forced to participate in government-sponsored religion and from government reprisal if atheists did not participate.

Second, the Supreme Court has held the Free Exercise Clause to mean that government may not express a preference for “religion over irreligion.”² In 2005, Justice O’Connor, concurring with the majority’s conclusions in McCreary County v. ACLU, was more explicit:

“The Religion Clauses . . . protect adherents of all religions, as well as those who believe in no religion at all.”³

The statements in McCreary County were not the first time the Supreme Court had noted the First Amendment’s protections extend to atheists. In 1961, the Court referred to “Secular Humanism” as a form of atheism that is nonetheless protected by the First Amendment.⁴ In yet another decision, the Court “unambiguously concluded” that the First Amendment requires “equal respect for the conscience of the infidel [and] the atheist” as it does to those who profess belief in God.⁵

Atheism is not a religion, but it does “take[] a position on religion, the existence and importance of a supreme being, and a code of ethics.”⁶ For that reason, it qualifies as a religion for the purpose of First Amendment protection, despite the fact that in common usage atheism would be considered the absence, rejection, or opposite of religion. Put another way, discrimination on the basis of religious belief extends to all beliefs about religion.

The reach of courts’ characterization of atheism as a religion, or religion-like, is unclear. For instance, would atheists be able to utilize the Religious Freedom Restoration Act (RFRA) to seek exemption from generally applicable laws, as Hobby Lobby was able to do in the crushing Supreme Court decision Burwell v. Hobby Lobby?⁷ At this time, the only court to have addressed this question is the Second Circuit Court of Appeals.⁸ A group of atheists and secular humanists alleged the inclusion of “In God We Trust” on U.S. currency violated RFRA by requiring them to bear a statement that violated the central tenets of their beliefs.⁹ The Second Circuit affirmed a lower court’s dismissal of the case, finding that the “appellants’ system of beliefs is not substantially burdened by the placement of the motto on currency.”¹⁰

Though the Second Circuit ruled against the atheists’ RFRA claim, it is notable that the court was willing to entertain the challenge at all. Neither the Second Circuit nor the lower court which first dismissed the case questioned the ability of atheists to make a claim under RFRA.¹¹ If this posture is followed by other courts, it would appear that atheism/secularism may be treated as the equivalent of religion in most legal disputes.

¹ Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947).
² McCreary Cnty. v. ACLU, 545 U.S. 844, 875 (2005).
³ McCreary Cnty. v. ACLU, 545 U.S. 844, 884 (2005).
⁴ Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961).
⁵ Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985).
⁶ Kaufman v. McCaughtry, 419 F.3d 678, 682 (2005).
⁷ Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751 (2014).
⁸ Newdow v. Peterson, 753 F.3d 105 (2nd Cir. 2014).
⁹ Newdow v. Peterson, 753 F.3d 105 (2nd Cir. 2014).
¹⁰ Newdow v. Peterson, 753 F.3d 105 (2nd Cir. 2014).
¹¹ Newdow v. United States, 2013 U.S. Dist. LEXIS 128367 (S.D.N.Y. Sept. 9, 2013).