Recently I was invited to participate in a Religion and Law Conference at Florida State University. Almost all the other speakers and attendees were legal or religion scholars, from disciplines in which I’ve had no formal training.
My only “credential” to speak was as a former plaintiff in a South Carolina Supreme Court victory for atheists. In a conference session called “Legislating Conscience,” I described (to much amusement and agreement with my position) the legal roadblocks South Carolina had placed in my path in its failed attempt to maintain god belief as a requirement for public office. The conference, though, was not a “kumbaya” weekend because I disagreed with many speakers on issues they supported.
Almost all attendees were religious liberals, whose conference papers I’d roughly place in three categories: (1) objection to favoring mainstream religions over minority religions; (2) approval of selected government support for religion; (3) disputes over what legally constitutes a religion.
I agreed with all the cases presented in (1) and disagreed with all the cases presented in (2). My position was that government should never favor one religion over another or religion over non-religion.
The most interesting discussion for me was about (3), disputes over what legally constitutes religion, because I found all the attempts to define religion problematic. One speaker defined religion as “a sincerely held non-rational (i.e., faith based) belief concerning the nature of the universe.” Why, I asked, should our government privilege irrational beliefs over rational beliefs? Of course there are both theistic and nontheistic religions, the latter placing more emphasis on what adherents view as rational beliefs.
Supreme Court Justice Potter Stewart famously said, “Pornography is hard to define, but I know it when I see it.” I think the same can be said of religion, and therein lies the problem. My favorite definition of religion is from a “Non Sequitur” cartoon. An old man sits behind a table on a street corner with a sign-up sheet. Next to the table is a big poster with a huge thermometer. An arrow at the top of the thermometer points to the phrase, “Join and help us reach our goal!” The bottom is labeled “handful of wackos.” As people stop to sign, the temperature indicator moves up the thermometer alongside labels that say “cult,” “faction,” “sect,” and finally the goal of “mainstream religion.”
But why should it even matter whether a sincerely held belief or worldview is called a religion? In my ideal world, where religion wouldn’t be privileged over non-religion, it wouldn’t matter.
Our secular U.S. Constitution makes no mention of gods or religions. The lone reference to religion in the main body of the document is in Article VI, which states that no religious test shall ever be required as a qualification to any office. The only other mention of religion is in the First Amendment, which prohibits Congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof.
Our founders did not promote religion in the First Amendment. They supported freedom of religion because they understood that such religious diversity would help our new country avoid the kinds of wars that had plagued Europe, where hundreds of thousands of people had been tortured and killed over religious differences.
Freedom of religion must include freedom from religion, which means our First Amendment guarantees freedom of religion and conscience. However, our politicians and courts have approved laws that give preferential treatment to religion. Since tax laws favor religious over secular nonprofit organizations, the IRS has devised 14 points of criteria as guidelines on what constitutes a church.
Our country’s special accommodations for religion include allowing taxpayer-funded school vouchers for religious institutions that need not comply with the same standards as secular schools; faith-based initiatives that allow hiring discrimination and denial of certain types of health care to patients because of the religious beliefs of a provider.
But if the government offers an exemption from a law because of religious belief, that same exemption should be available for conscientious belief, as in the case where the Supreme Court ruled in favor of an atheist conscientious objector to war.
Special treatment for religion defeats society’s promotion of the general welfare. Neither religious nor non-religious people can invoke conscience to avoid paying taxes. A pharmacist should be required to dispense prescriptions regardless of religious beliefs, just as a supermarket cashier must check out meat products even though eating animal flesh goes against her vegan beliefs.
I support the guidelines formulated by two Supreme Court justices, both Republicans. Justice Warren Burger established the three-pronged “Lemon Test,” which says that government action must have a secular legislative purpose; must not have the primary effect of either advancing or inhibiting religion; and must not result in an excessive entanglement with religion.
Justice Sandra Day O’Connor helped explain the value of a portion of the Lemon Test when she said that government endorsement of religion sends a message to nonadherents that they are outsiders and not full members of the political community, and a supportive message to adherents that they are insiders, favored members of the political community.
Should we adhere to these rulings faithfully, we will be closer to fulfilling the original Pledge of Allegiance of becoming one nation, indivisible. What divides us is not so much our religious differences in this diverse country, but the degree of commitment we have to equal freedom of conscience for all people. Whether religious or secular, our universal goal should be to treat all our fellow human beings with respect and dignity.
Herb Silverman is founder and President Emeritus of the Secular Coalition for America, author of
“Candidate Without a Prayer: An Autobiography of a Jewish Atheist in the Bible Belt,”
and Distinguished Professor Emeritus of Mathematics at the College of Charleston.