Nonbelievers and government speech

Iowa Law Review

Volumn 97, Issue 2, 2012, Pages 347-415

  Corbin, Caroline Mala ^a,b,c  

^a UNIVERSITY OF MIAMI   (United States)

^b HARVARD UNIVERSITY   (United States)

^c The Earth Institute at Columbia University   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84856156541     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (389)

1. See Salazar v. Buono, 130 S. Ct. 1803(2010);
2. Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011).
3. U. S. CONST. amend. I.
4. See, e.g., Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. PITT. L. REV. 673, 677(1980) ("[A] central purpose of the Establishment Clause (as well as of the Free Exercise Clause) was to protect religious liberty....");
5. Michael W. McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1, 1 ("[R]eligious liberty is the central value and animating purpose of the Religion Clauses....").
6. See, e.g., CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION (2007);
7. MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY (2008);
8. Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20(1975).
9. See Will Martin Gervais, Do You Believe in Atheists? Trust and Anti-Atheist Prejudice 1 (Aug. 2008) (unpublished M. A. thesis, University of British Columbia), available at https://circle.ubc.ca/bitstream/handle/2429/ 1549/ubc-2008-fall-gervais-will.pdf;jsessionid=FD0E90D C0E23B2BA22C378B3DD3231A6?sequence=1 ("Despite the attention that atheism is receiving in culture at large, the scientific literature on the topic is scant at best.").
10. Agnostic Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/ dictionary/agnostic (last visited Oct. 30, 2011). In other words, an agnostic is someone "who is not committed to believing in either the existence or the nonexistence of God or a god."
11. Merriam-Webster defines atheist as "one who believes that there is no deity." Atheist Definition, MERRIAM-WEBSTER, http://www.merriam-webster. com/dictionary/atheist (last visited Oct. 30, 2011).
12. Michael Martin, Introduction to THE CAMBRIDGE COMPANION TO ATHEISM 1, 1 (Michael Martin ed., 2007).
13. Humanism is defined as a philosophy "centering on humans and their values, capacities, and worth and deemphasizing religious beliefs." AMERICAN HERITAGE COLLEGE DICTIONARY 675 (4th ed. 2002).
14. The American Ethical Union, whose motto is "deed before creed," defines Ethical Culture as a humanistic "movement inspired by the ideal that the supreme aim of human life is working to create a more humane society." AM. ETHICAL UNION, http://aeu.org/(last visited Oct. 30, 2011).
15. see also Babak Alidoosti, The Process and Experience of Deciding To Live Openly Atheist in a Christian Family: A Qualitative Study 1 (Dec. 11, 2009) (unpublished M. S. thesis, Virginia Polytechnic Institute and State University), available at http://scholar.lib.vt.edu/thesis/available/etd-12222009-140247/ unrestricted/Alidoosti-B-T-2009.pdf (suggesting that atheists in America may avoid the label for fear of discrimination).
16. The percentage of atheists in other countries is much higher. In one study, 41% of Norwegians, 48% of the French, and 54% of Czechs said they did not believe in God, although the same study found that only 10%, 19%, and 20%, respectively, self-identified as atheist. Phil Zuckerman, Atheism: Contemporary Numbers and Patterns, in THE CAMBRIDGE COMPANION TO ATHEISM, supra note 20, at 47, 47, 49-51.
17. BARRY A. KOSMIN & ARIELA KEYSAR, AMERICAN RELIGIOUS IDENTIFICATION SURVEY [ARIS 2008] SUMMARY REPORT 3 & tbl.3(2009), available at http://commons.trincoll.edu/aris/files/2011/08/ARIS-Report-2008.pdf (surveying a nationally representative sample of 54, 461 adults).
18. see also BARRY A. KOSMIN ET AL., AMERICAN NONES: THE PROFILE OF THE NO RELIGION POPULATION, at i (2009), available at http://commons.trincoll.edu/aris/ files/2011/08/NONES-08.pdf.
19. PEW FORUM ON RELIGION & PUB. LIFE, U. S. RELIGIOUS LANDSCAPE SURVEY 5(2008) [hereinafter PEW SURVEY], available at http://religions.pewforum.org/ pdf/report-religiouslandscape-study-full.pdf (summarizing findings based on interviews with more than 35, 000 adult Americans).
20. SAM HARRIS, THE END OF FAITH: RELIGION, TERROR, AND THE FUTURE OF REASON (2004).
21. RICHARD DAWKINS, THE GOD DELUSION (2006).
22. CHRISTOPHER HITCHENS, GOD IS NOT GREAT: HOW RELIGION POISONS EVERYTHING (2007).
23. Other books by leaders of the New Atheism movement include: SAM HARRIS, LETTER TO A CHRISTIAN NATION (2006);
24. VICTOR J. STENGER, GOD: THE FAILED HYPOTHESIS: HOW SCIENCE SHOWS THAT GOD DOES NOT EXIST (2007);
25. VICTOR J. STENGER, THE NEW ATHEISM: TAKING A STAND FOR SCIENCE AND REASON (2009).
26. "'The End of Faith' won the 2005 PEN/Martha Albrand Award for First Nonfiction and sold more than 270, 000 copies...." David Segal, Atheist Evangelist, WASH. POST (Oct. 26, 2006), http://www.washingtonpost.com/wp-dyn/ content/article/2006/10/25/AR2006102501998.html;
27. see also Jacqueline L. Salmon, In America, Nonbelievers Find Strength in Numbers, WASH. POST (Sept. 15, 2007), http://www.washingtonpost.com/wp-dyn/ content/article/2007/09/14/AR2007091402199.html ("In the past two years, five books touting atheism have hit the bestseller lists....").
28. GREG M. EPSTEIN, GOOD WITHOUT GOD: WHAT A BILLION NONRELIGIOUS PEOPLE DO BELIEVE (2009).
29. RONALD ARONSON, LIVING WITHOUT GOD (2008).
30. See Best Sellers: Hardcover Nonfiction, N. Y. TIMES (Jan. 17, 2010), http://www.nytimes.com/2010/01/17/books/bestseller/besthardnonfiction.html (ranking Epstein's Good Without God at number thirty-one).
31. Press Release, Jay-Roc Invs., Inc., The Atheist Pocket Debater iPhone App Remains on Top Ten Best Selling Apps List in Book Category on iTunes (July 16, 2010), available at http://www.prweb.com/releases/iPhone-app/atheist-book-app/ prweb3954134.htm.
32. According to the Student Secular Alliance, there were 42 secular student groups in 2003 and 195 in late 2009. Nara Schoenberg, Young and Atheist, CHI. TRIB. (Apr. 11, 2010), http://articles.chicagotribune.com/2010-04-11/features/ ct-sun-atheists-20100407-1-atheistgod-delusion-secular-student-alliance.
33. By 2010, the number had grown to 225. Susan Kim, Atheist Student Groups on Rise Nationally, DAILY ORANGE (Nov. 2, 2010), http://www.dailyorange.com/ news/atheist-studentgroups-on-rise-nationally-1.1739857.
34. One estimate found 59 atheist groups in 2005 compared to 372 in 2009. G. Jeffrey MacDonald, Ranks of Atheists Grow, Get Organized, CHRISTIAN SCI. MONITOR (July 16, 2009), http://www.csmonitor.com/USA/Society/2009/0716/p22s01-ussc. html (citing statistics from American Atheists, a networking and advocacy organization).
35. Radio Interview by Michel Martin with Blair Scott, Founder, N. Ala. Free Thought Ass'n (Aug. 14, 2009), available at http://www.npr.org/templates/story/ story.php?storyId= 111885128.
36. History, SECULAR COAL. FOR AM., http://www.secular.org/history (last visited Nov. 1, 2011). According to its website, the ten-member "Secular Coalition for America is a 501 (c) 4 advocacy organization whose purpose is to amplify the diverse and growing voice of the nontheistic community in the United States."
37. About the Secular Coalition for America, SECULAR COAL. FOR AM., http://www.secular.org/about/main (last visited Nov. 1, 2011).
38. Margaret Talev, Obama Aides To Meet with Atheists at White House, DESERET NEWS (Feb. 27, 2010), http://www.deseretnews.com/article/700012473/Obama-aides- to-meet-withatheists-at-White-House.html.
39. Chika Oduah & Lauren E. Bohn, Blacks, Mirroring Larger U. S. Trend, 'Come Out' as Nonbelievers, HUFFINGTON POST (May 24, 2010), http://www. huffingtonpost.com/2010/05/24/blacks-mirroring-larger-u-n-587854.html.
40. Barack H. Obama, President of the U. S., Inaugural Address, 3 (Jan. 20, 2009), available at http://www.gpo.gov/fdsys/pkg/DCPD-200900001/pdf/DCPD- 200900001.pdf. President Obama said: "For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus and nonbelievers. We are shaped by every language and culture, drawn from every end of this Earth."
41. Bus Sign/Billboard Campaign, FREEDOM FROM RELIGION FOUND., http://www.ffrf.org/get-involved/bus-billboard-campaign (last visited Oct. 30, 2011).
42. Billboards in Action!, FREEDOM FROM RELIGION FOUND., http://www.ffrf.org/ getinvolved/bus-billboard-campaign/billboards-in-action/(last visited Sept. 22, 2011).
43. About Us, UNITED COAL. OF REASON, http://unitedcor.org/national/page/ about-us (last updated Dec. 8, 2010).
44. Godless Ads Now on Fayetteville Buses, UNITED COAL. OF REASON (Apr. 13, 2010), http://unitedcor.org/national/news/godless-ads-now-fayetteville-buses.
45. Clyde Haberman, Their Belief Is in the Power of Persuasion, N. Y. TIMES (July 23, 2009), http://www.nytimes.com/2009/07/24/nyregion/24nyc.html (internal quotation marks omitted).
46. Manya A. Brachear, Atheist Group Brings Mobile Message to CTA, CHI. TRIB. (May 24, 2009), http://articles.chicagotribune.com/2009-05-24/news/0905220468- 1-advertisingcrusade-religion-god (internal quotation marks omitted).
47. Jacqueline Lavache, Boston Coalition of Reason Poster Is Vandalized, EXAMINER. COM (Nov. 12, 2009) (on file with author) (reproducing vandalized "Good without God? 40 Million Americans are" poster altered to "Are you Good with God? Over 40 Million Americans are in Need of Salvation!").
48. Tim Funk, Atheist Group's Billboard Vandalized, CHARLOTTE OBSERVER (June 29, 2010), available at http://pluralism.org/news/view/24538 (reporting that vandals spray painted "Under God" onto billboard reading "One Nation Indivisible" in Charlotte, N. C.).
49. Death Threats Force Removal of Atheist Billboard, CURRENT (Nov. 13, 2009), http://current.com/community/91446453-death-threats-force-removal-of- atheist-billboard.htm (noting vandalism to billboards in Idaho);
50. Duke Helfand, Humanists Launch a Godless Holiday Campaign, L. A. TIMES (Dec. 7, 2009), http://articles.latimes.com/2009/dec/07/local/la-me-beliefs7- 2009dec07 (noting that vandals painted over "out" in a "Millions are good without God" billboard in Idaho).
51. Death Threats Force Removal of Atheist Billboard, supra note 60 (noting vandalism to billboards in Colorado).
52. Niraj Warikoo, Atheist Bus Ads Are Desecrated, DETROIT FREE PRESS, March 16, 2010, at A4 (noting that "Don't" was torn off or scratched off in "Don't believe in God? You are not alone" bus advertisements in Detroit).
53. Death Threats Force Removal of Atheist Billboard, supra note 60 (internal quotation marks omitted).
54. Cynthia Reynaud & Jason Clayworth, ACLU Questions Removal of Atheists' Bus Ads, DES MOINES REG., Aug. 7, 2009, at 1B (noting that some people had refused to ride buses with the ad on them).
55. The ads were reinstated after the ACLU of Iowa got involved. Cynthia Reynaud, Atheist Ads Will Go Back on Buses, DART Decides, DES MOINES REG., Aug. 8, 2009, at 1B.
56. see Brady Gillihan, Atheist Group Wins Battle To Place Ads on City Buses, BLOOMINGTON HERALD-TIMES, July 28, 2009, http://www.heraldtimesonline.com/ stories/2009/07/28/news.qp-8620169.sto.
57. Eugene R. Milhizer, So Help Me Allah: An Historical and Prudential Analysis of Oaths as Applied to the Current Controversy of the Bible and Quran in Oath Practices in America, 70 OHIO ST. L. J. 1, 26 n. 110(2009) (stating the sentiment that atheists should not be allowed as witnesses "was not put to rest in America until well into the twentieth century").
58. Paul W. Kaufman, Note, Disbelieving Nonbelievers: Atheism, Competence, and Credibility in the Turn of the Century American Courtroom, 15 YALE J. L. & HUMAN. 395, 397(2003).
59. U. S. CONST. ART. VI, CL. 3. Although there was room for debate that the Religious Test Clause applied only to federal office
60. see, e.g., Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, 37 CASE W. RES. L. REV. 674, 714(1987), the point was essentially mooted after the Supreme Court decided Torcaso v. Watkins
61. Torcaso v. Watkins, 367 U. S. 488, 496(1961) (holding that Maryland could not require Torcaso to declare his belief in God in order to assume his commission as notary public because the "Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him").
62. ARK. CONST. art. 19, § 1 ("No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.");
63. MISS. CONST. art. 14, § 265 ("No person who denies the existence of a Supreme Being shall hold any office in this State.");
64. N. C. CONST. art. VI, § 8 ("The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.");
65. PA. CONST. art. I, § 4 ("No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.");
66. S. C. CONST. art. VI, § 2 ("No person who denies the existence of the Supreme Being shall hold any office under this Constitution. ");
67. TENN. CONST. art. IX, § 2 ("No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State.");
68. TEX. CONST. art. I, § 4 ("No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.").
69. S. C. CONST. art. VI, § 2.
70. In his application to become a notary public, atheist Herb Silverman crossed off the "So help me God" part of the oath. His application was rejected. Silverman v. Campbell, 486 S. E.2d 1, 1 (S. C. 1997).
71. Gary R. Govert, Essay, Something There Is That Doesn't Love a Wall: Reflections on the History of North Carolina's Religious Test for Public Office, 64 N. C. L. REV. 1071, 1086-87(1986)
72. (quoting N. C. CONST. of 1868, art. VI, § 5) (internal quotation marks omitted).
73. David Waters, Atheist Revival in Arkansas, WASH. POST UNDER GOD BLOG (Feb. 13, 2009, 1:53 PM), http://newsweek.washingtonpost.com/onfaith/undergod/ 2009/02/an-advocate-for-atheists-in-ar.html;
74. see also H. R. J. RES. 1009, 87TH GEN. ASSEMB., REG. SESS. (Ark. 2009).
75. ARK. H. R. JOURNAL 87th Gen. Assemb. 5848, 5850, available at http://www.arkleg.state.ar.us/assembly/2009/R/House%20Journal/ ADDENDUM%2087TH%20GENERAL %20ASSEMBLY.pdf.
76. (referencing John Locke, who declared that "[p]romises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist." (quoting A LETTER CONCERNING TOLERATION 32 (William Popple trans., 2004) (1689))).
77. Torcaso v. Watkins, 162 A.2d 438, 443 (Md. 1960)
78. rev'd, 367 U. S. 488(1961).
79. Jones v. State, 132 S. E.2d 648, 649 (Ga. 1963). The Federal Rules of Evidence put an end to these practices in federal court after they were formally adopted in 1975.
80. see also FED. R. EVID. 601 ("Every person is competent to be a witness except as otherwise provided in these rules.");
81. FED. R. EVID. 610 ("Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.").
82. He was sent down from Oxford after the publication of his Necessity of Atheism. RICHARD HOLMES, SHELLEY: THE PURSUIT 54-55(1974).
83. Shelley v. Westbrooke, (1817) 37 Eng. Rep. 850 (Ch.) 851.
84. Montgomery Cnty. Dep't of Soc. Servs. v. Sanders, 381 A.2d 1154, 1160 n. 8 (Md. Ct. Spec. App. 1977) ("It was not until the Victorian era that a father lost a custody dispute in England. The dubious award for 'first loser' was presented to the famous poet, Percy Bysshe Shelley....").
85. (quoting 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE 702 (7th ed. 1857)).
86. Woman's Red Creed Costs Her Children, N. Y. TIMES, Jan. 30, 1936, at 1 (internal quotation marks omitted).
87. Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 N. Y. U. L. REV. 631, 633-35(2006) (compiling over seventy child-custody cases where the party recognized by the court as more likely to provide a religious upbringing has prevailed). It can also count against them in adoption. One New Jersey court would not let a couple adopt solely because it thought their lack of belief in a Supreme Being rendered them unfit to be adoptive parents.
88. In re Adoption of "E," 271 A.2d 27, 30 (Essex County Ct. 1970). The Supreme Court of New Jersey reversed.
89. In re Adoption of "E," 279 A.2d 785, 796 (N. J. 1971).
90. Pountain v. Pountain, 503 S. E.2d 757, 759-61 (S. C. Ct. App. 1998). The guardian ad litem called the decision a "really tough call."
91. Staggs v. Staggs, 919 So. 2d 112, 119 (Miss. Ct. App. 2005) (ruling in mother's favor and noting that "[w]hile [father] is an agnostic and testified that religion is not important to him, [mother] testified that religion is very important to her");
92. Gancas v. Schultz, 683 A.2d 1207, 1213-14 (Pa. Super. Ct. 1996) (returning custody to mother based on best interests of child, in part because mother testified that she takes daughter to church while "[f]ather, an admitted agnostic, does not attend church" and agreeing that "[r]eligion, while not determinative, 'is an important matter and should be given some consideration in child custody matters'"
93. (quoting Boylan v. Boylan, 577 A.2d 218, 219 (Pa. Super. Ct. 1990))).
94. Myers v. Myers, 14 Phila. Co. Rptr. 224, 257 (C. P. 1986) (citation omitted)
95. (quoting Commonwealth ex rel. Bendrick v. White, 169 A.2d 69, 73 (Pa. 1961))
96. aff'd mem., 520 A.2d 68 (Pa. Super. Ct. 1986).
97. Anti-Defamation League of B'nai B'rith & Nat'l Op. Research Ctr., Univ. of Chi., Anti-Semitism in the United States Survey, 1964 (Oct. 1964), available at iPoll Databank, Roper Ctr. for Pub. Op. Research, Univ. of Conn., http://www.ropercenter.uconn.edu/data-access/ipoll/ipoll.html.
98. Am. Jewish Comm. & Yankelovich, Skelly & White, Anti-Semitism in the United States Survey, 1981 (Jan. 1981), available at iPoll Databank, supra note 98.
99. Kacey Cornell, Religion in the Workplace: An Atheist's Battle Against Discrimination, EXAMINER. COM (May 14, 2009), http://www.examiner.com/atheism- in-dallas/religion-theworkplace-an-atheist-s-battle-against-discrimination-pt-1 (internal quotation marks omitted). A receptionist at a chiropractor's office told a reporter that though she never discussed religion at work, she was fired when her boss discovered her atheism via her husband's website.
100. Kacey Cornell, Religion in the Workplace: The Christian's Side of the Discrimination Story, EXAMINER. COM (May 17, 2009), http://www.examiner.com/ atheism-in-dallas/religion-the-workplace-the-christian-s-sideof-the- discrimination-story (internal quotation marks omitted).
101. Matthew Lane, Judge Reinstates Religious Discrimination Lawsuit Against ACS, CitiGroup, SULLIVAN-COUNTY. COM (July 24, 2003), http://www.sullivan- county.com/news/pat-quotes/atheist-fired.htm. Two women requested and were granted a request to move away from Carletta Sims after learning that she was an official with American Atheists.
102. Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351, 353-54 (Or. 1995).
103. See, e.g., Peter Wollheim, Atheists in Idaho; Non-believers on the Fringe, BOISE WEEKLY (Mar. 23, 2005), http://www.boiseweekly.com/boise/atheists- in-idaho/content?oid=921480 (reporting that a member of the Idaho Atheist Alliance noted that "we have had members who have been fired for being public about their atheism" (internal quotation marks omitted)).
104. It became widely known after the organization successfully challenged a publicaccommodation law outlawing discrimination on the basis of sexual orientation. Boy Scouts of Am. v. Dale, 530 U. S. 640(2000) (holding that the Boy Scouts had a free-association right to exclude Dale as scoutmaster because his homosexuality would undermine their expressive messages).
105. Welsh v. Boy Scouts of Am., 742 F. Supp. 1413, 1423 (N. D. Ill. 1990) (quoting Reaffirmation of the Position of the Boy Scouts of America on "Duty to God") (internal quotation marks omitted).
106. Seabourn v. Coronado Area Council, Boy Scouts of Am., 891 P.2d 385, 390-91 (Kan. 1995) (ruling against plaintiff who had been involved with Boy Scouts for over twenty years, the last as an assistant scoutmaster, and who was expelled from Boy Scouts two days after sending a letter explaining that he did not believe in God).
107. The Scout Oath or Promise reads: "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." Welsh, 742 F. Supp. at 1440. The Scout law is as follows: "A Scout is trustworthy... loyal... helpful...friendly... courteous... kind... obedient... cheerful... thrifty... brave... clean... reverent."
108. According to the official Boy Scout website, "204 members of the 112th Congress participated in Scouting as a youth and/or adult leader." Facts About Scouting, BOY SCOUTS OF AM., http://www.scouting.org/about/ factsheets/scoutingfacts.aspx (last visited Oct. 30, 2011).
109. 36 U. S. C. § 30901-30908(2006). Other groups meriting a charter include veterans, arts, and civic groups like American War Mothers, National Academy of Sciences, Congressional Medal of Honor Society of the United States of America, and Big Brothers-Big Sisters of America.
110. See generally 36 U. S. C. §§ 10101-240112 ("Patriotic and National Organizations").
111. The vote was 362 to 12. Jim Abrams, House Gives Boy Scouts Solid Vote on Charter, SUN HERALD (Biloxi, Miss.), Sept. 14, 2000, at C1. Instead, Congress supported the Boy Scouts with the Support Our Scouts Act of 2005, which guaranteed access to state facilities even if in conflict with local antidiscrimination law, Pub. L. No. 109-148, 119 Stat. 2728(2005) (repealed 2006)
112. and the Boy Scouts of America Centennial Commemorative Coin Act, Pub. L. No. 110-363, 122 Stat. 4015(2008).
113. Preparing for the Next Century: The Legacy of the Boy Scouts Includes Patriotism and Outdoorsmanship, but Also Excluding Gays and Atheists, WIS. ST. J., Dec. 21, 2009, at A1, available at 2009 WLNR 25712351.
114. Press Release, Am. Humanist Ass'n, President-Elect Obama Asked To Turn Down Boy Scouts of America (Jan. 13, 2009), available at http://www. americanhumanist.org/news/details/2009-01-president-elect-obama-asked-to-turn- down-boy-scouts-of-america (including text of open letter to Obama signed by nineteen atheist, agnostic, and nontheistic organizations).
115. To the extent people disapprove, it is usually based on the Boy Scouts' discrimination against gays. See, e.g., Members of Congress Call on BSA To End Its Discrimination Against Gays and Lesbians, SCOUTING NEWS (Feb. 6, 2010), http://www.scoutingnews.org/2010/02/06/congressend-discrimination-policy/.
116. Penny Edgell, Joseph Gerteis & Douglas Hartmann, Atheists as "Other": Moral Boundaries and Cultural Membership in American Society, 71 AM. SOC. REV. 211, 217(2006);
117. See, e.g., STEVE FARKAS ET AL., PUB. AGENDA, FOR GOODNESS' SAKE: WHY SO MANY WANT RELIGION TO PLAY A GREATER ROLE IN AMERICAN LIFE passim (2001), available at http://www.publicagenda.org/files/pdf/for-goodness-sake.pdf;
118. PEW FORUM ON RELIGION & PUB. LIFE & PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, VIEWS OF RELIGIOUS SIMILARITIES AND DIFFERENCES 22(2009) [hereinafter Pew 2009 Survey], available at http://pewforum.org/uploadedfiles/ Topics/Religious-Affiliation/Muslim/survey0909.pdf. Here is the exact question and the responses from the August 2009 survey: "Now thinking about some specific religious groups... Is your overall opinion of [Atheists, that is people who don't believe in God,] very favorable [6%], mostly favorable [23%], mostly UNfavorable [23%], or very unfavorable [26%]?"
119. This stereotype of the immoral atheist is unfounded. See Benjamin Beit-Hallahmi, Morality and Immorality Among the Irreligious, in ATHEISM & SECULARITY 113, 134 (Phil Zuckerman ed., 2010) ("The claim that atheists are somehow likely to be immoral or dishonest has long been disproved.");
120. Federico Varese & Meir Yaish, The Importance of Being Asked: The Rescue of Jews in Nazi Europe, 12 RATIONALITY & SOC'Y 307, 320(2000) (finding that "the less religious the respondents, the more likely they were to help" persecuted Jews);
121. Phil Zuckerman, Atheism, Secularity, and Well-Being: How the Findings of Social Science Counter Negative Stereotypes and Assumptions, 3/6 SOC. COMPASS 949, 953(2009) (noting that studies show that atheists and secular people are "markedly less nationalistic; less prejudiced, less anti-Semitic, less racist, less dogmatic, less ethnocentric, less close-minded, and less authoritarian").
122. see also Psalms 14:1 (Revised Standard Version) ("The fool says in his heart, 'There is no God.' They are corrupt, they do abominable deeds, there is none that does good.").
123. Princeton Survey Research Assocs. Int'l & Newsweek, Poll (Mar. 2007), available at iPoll Databank, supra note 98 (68% yes; 26% no; 6% don't know);
124. Princeton Survey Research Assocs. Int'l & Newsweek, Poll (Aug. 2006), available at iPoll Databank, supra note 98 (68% yes; 26% no; 6% don't know). The numbers were not so different twenty years ago: 59% yes; 32% no; 9% don't know. CBS News/N. Y. Times, Poll (Sept. 1984), available at iPoll Databank, supra note 98.
125. Press Release, Univ. of Minn., Atheists Identified as America's Most Distrusted Minority, According to New U of M Study (Mar. 28, 2006), available at http://www1.umn.edu/news/news-releases/2006/UR-RELEASE-MIG-2816.html (providing a statement from the lead researcher noting that "[i]t seems most Americans believe that diversity is fine, as long as every one [sic] shares a common 'core' of values that make [sic] them trustworthy-and in America, that 'core' has historically been religious" (internal quotation marks omitted)).
126. Tom Arcaro, The Stigma of Being an Atheist: An Empirical Study on the New Atheist Movement and Its Consequences, 15 SKEPTIC MAG., no. 4, 2010 at 50, 55 (reporting one man's experience: "I've had people literally, physically BACK away from me upon hearing I am atheist. My children were told to run away from our evil home.").
127. A Kentucky billboard, depicting a boy pointing a gun at the viewer, provides a visual representation of this assumption, where the tag line is: "If God doesn't matter to him, do you?" Billboard Wars, DANGEROUS TALK, http://www.dangeroustalk.net/billboard-wars.html (last visited Nov. 1, 2011).
128. Holly Yan, Dallas-Area Atheists Discuss Their Outlook, Relationships, DALL. MORNING NEWS, Apr. 3, 2009 (on file with author). In explaining why his atheist group sponsored a "Don't believe in God? You are not alone" billboard, Terry McDonald explained that "[w]e'd like to show Christians we don't have horns and a tail.... We're just normal people."
129. Another 4% stated it was somewhat unpatriotic. Greenberg Quinlan Rosner Research, True Patriot Survey (Aug. 2004), available at iPoll Databank, supra note 98;
130. see also CBS NEWS & N. Y. TIMES, Poll (Sept. 1984), available at iPoll Databank, supra note 98 (reporting that 22% of people answered "no" to "Do you think someone can be patriotic if they don't believe in God?");
131. N. Y. Times, Poll (June 1983), available at iPoll Databank, supra note 98 (providing that 24% of people answered "no" to "Can someone be patriotic if they do not believe in God?").
132. (quoting R. Hart, An Unquiet Desperation: Rhetorical Aspects of "Popular" Atheism in the United States, Q. J. SPEECH 64(1), 35(1978)).
133. see also Pew Research Ctr. & NPR, Social Trends Racial Attitudes in America Survey (Oct. 2009), available at iPoll Databank, supra note 98 (reporting that when asked how they would react to a member of their close family marrying an atheist, 34% said they would be fine; 38% said they "[w]ould be bothered but would come to accept it"; and 24% said they "[w]ould not be able to accept it");
134. Wash. Post & Kaiser & Harvard Univ., Racial Attitudes Survey (Mar. 2001), available at iPoll Databank, supra note 98 (reporting that, in response to the same question, "31% would be fine with it...; 39% would be bothered but would come to accept it; 30% would not be able to accept it").
135. Princeton Survey Research Assocs. Int'l & Newsweek, Poll (July 2008), available at iPoll Databank, supra note 98 (finding that 51% would not vote for an atheist presidential candidate who was nominated by their party and qualified for the job);
136. Gallup & USA Today, Poll (June 2011), available at iPoll Databank, supra note 98 (49% would not vote for party-nominated, generally well-qualified presidential candidate who happens to be an atheist);
137. Gallup & USA Today, Poll (Mar. 2007), available at iPoll Databank, supra note 98 (48%);
138. Gallup & USA Today, Poll (Feb. 2007), available at iPoll Databank, supra note 98 (53%);
139. see also Pew Research Ctr. for the People & the Press & Princeton Survey Research Assocs. Int'l, Pew Forum on Religion and Public Life Survey (May 2011), available at iPoll Databank, supra note 98 (61% said that they would be less likely to support a Presidential candidate who does not believe in God).
140. Princeton Survey Research Assocs. Int'l & Newsweek, Poll (Mar. 2007), available at iPoll Databank, supra note 98 (62% answered "no" to the question "Would you vote for a political candidate who says he or she is an atheist, or not?");
141. Princeton Survey Research Assoc. Int'l/Newsweek Poll (Aug. 2006), available at iPoll Databank, supra note 98 (56% answered "no" to the same question).
142. Gallup/USA Today Poll (Feb. 2007), available at iPoll Databank, supra note 98 (reporting responses of individuals who, when asked if their party nominated a generally wellqualified person for president who happened to be..., would vote for that person).
143. Ctr. for Pub. Leadership of the John F. Kennedy Sch. of Gov't, Harvard Univ. & U. S. News & World Report & Yankelovich, Poll (Sept. 2007), available at iPoll Databank, supra note 98.
144. FOX NEWS, OPINION DYNAMICS POLL (2010), available at http://www.foxnews. com/projects/pdf/042810-SCOTUS.pdf.
145. See, e.g., Kenny A. ex rel. Winn v. Perdue, 532 F.3d 1209, 1234 (11th Cir. 2008) (comparing atheists in the Bible Belt to pedophiles in terms of the loathing they could provoke)
146. rev'd, 130 S. Ct. 1662(2010).
147. AMERICAN HERITAGE COLLEGE DICTIONARY 89 (4th ed. 2002).
148. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 137(1993).
149. Atheism Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/ dictionary/atheism (last visited Nov. 1, 2011).
150. See, e.g., Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 460, 466(2001) (describing first-generation discrimination as deliberate exclusion based on conscious stereotypes and second-generation discrimination as unconscious and based on cognitive bias, structures of decisionmaking, and patterns of interaction). (Pubitemid 33651459)
151. See, e.g., Welsh v. Boy Scouts of Am., 742 F. Supp. 1413, 1416 n. 1 (N. D. Ill. 1990) ("Cases involving allegations of racial and gender-based discrimination, while now commonplace, rarely provoke the expressed defense that such discrimination is justified. In contrast, religious discrimination- including discrimination against those who do not believe in God-remains openly defended by some in a way that most of our society no longer tolerates with respect to other forms of discrimination. ");
152. Outspoken atheists regularly receive death threats. E-mail from Shawn Joset to Fred Edwords, Nat'l Dir., United Coal. of Reason (Feb. 14, 2010, 2:26
153. Neela Banerjee, Soldier Sues Army, Saying His Atheism Led to Threats, N. Y. TIMES, April 26, 2008, http://www.nytimes.com/2008/04/26/us/26atheist.html.
154. One atheist was killed by his housemate who explained that "I did it because he was evil; he was not a believer." Joel Thurtell, Man Is Not Competent To Stand Trial, DETROIT FREE PRESS, Dec. 30, 2004. A ten-year-old girl who refused to recite "under God" in the Pledge was pushed up against a building by a classmate who also made the sign of the cross over her and said, "[e]veryone has to believe in God." Exhibit C (Affidavit of Bailey Wood Frei) to Plaintiffs' Motion for Protective Order, Freedom from Religion Found. v. Hanover Sch. Dist., No. 1:07-cv-356-JM (D. N. H. Jan. 22, 2008) (internal quotation marks omitted).
155. Candidates for Town Trustee, TOWN OF ESTES PARK COLO., http://www.estesnet.com/TownClerk/Election/CandidateBio2010.aspx (last visited Oct. 30, 2011) (follow Candidate Bio Link for David Habecker).
156. Lisa Pogue, A Town Divided: Trustee's Protest Fuels Animosity, ESTES PARK TRAIL-GAZETTE (Sept. 12, 2008), http://www.eptrail.com/news/ci-12799967 (internal quotation marks omitted).
157. Voters Recall Pledge Objector, WASH. TIMES (Mar. 23, 2005), http://www.washingtontimes.com/news/2005/mar/23/20050323-110303-1711r/(quoting David Habecker) (internal quotation marks omitted).
158. Habecker, 518 F.3d at 1221.
159. Voters Recall Pledge Objector, supra note 166.
160. Pledge Protester Faces Recall Vote, WASH. TIMES (Dec. 21, 2004), http://www.washingtontimes.com/news/2004/dec/21/20041221-122302-9022r/.
161. John Cordsen, New Trustees, Incumbent Are Sworn In, ESTES PARK TRAIL-GAZETTE (Apr. 29, 2010), http://www.eptrail.com/estes-park-news/ci- 14985654.
162. 20/20: Seeing and Believing: The Power of Faith (ABC television broadcast May 11, 2007), transcript available at 2007 WLNR 9008625.
163. Complaint, supra note 177, at 6.
164. Charleyski, Reply to Its Even Worse if You Are a Liberal and Have No Gods, DEMOCRATIC UNDERGROUND (Dec. 09, 2005, 5:56 AM), http://www. democraticunderground.com/discuss/duboard.php?az=show-mesg&forum= 173&topic-id=1263&mesg-id=1510.
165. According to Nicole's father, when he went to talk to the principal, the principal assaulted him and then the county filed charges against the father. Nicole's father said, "The D. A. was willing to drop the charges if I left the county. The charges were switched from a misdemeanor to a felony when I refused." Id. The father was subsequently acquitted by a jury of all charges. Austin Cline, Atheist Acquitted on Assault Charges After Being Harassed by Local Christians, ABOUT. COM (June 30, 2006), http://atheism.about.com/b/ 2006/06/30/atheistacquitted-on-assault-charges-after-being-harassed-by-local- christians.htm.
166. 20/20, supra note 165. On Nicole's website, you can see a video of a circle of girls from both teams, arms around each other, heads bent, reciting the Lord's Prayer, and one lone girl standing several feet apart reciting the Pledge. Nicole Smalkowski, Against the Law To Pray, MYSPACE (Mar. 31, 2006), http://www.myspace.com/nicoletheproudathiest/videos/against-thelaw-to-pray-in- school/257673.
167. The sudden hostility that greets revelation of their beliefs is a recurring theme in atheist narratives. After a nursing student disclosed her religious beliefs, classmates shunned her: The next day, a classmate whom I had personally tutored that normally sat by me now refused. She sat on the complete other end of the classroom and refused to make eye contact.... Lately it has been harder and harder to get any of my classmates (except for the only other atheist in the class) to work with me. Richard Wade, Ask Richard: Atheist Nursing Students Treated as Pariahs by Fellow Students, FRIENDLY ATHEIST (Jan. 22, 2010), http://www.patheos.com/blogs/friendlyatheist.com/2010/01/22/ask- richard-atheist-nursing-students-treated-as-pariahs-by-fellow-students. Another nonbeliever writes about how socially alone he and his family are: I have been an atheist for several years now. I have three younger children, all under the age of ten.... I live in a small town.... My family and I are dying socially with little to no one who believes like we do or even accepts us for our beliefs. Our kids cannot play with the neighbors because they hate us and tell my kids they will burn in hell.... My kids need other kids to play with.... I would cry if my anger at the situation wasn't overcoming the emotion.
168. Richard Wade, Ask Richard: An Atheist Hesitates to Visit a Unitarian Universalist Congregation, FRIENDLY ATHEIST (Apr. 13, 2010), http://www.patheos.com/blogs/friendlyatheist.com/2010/04/13/ask-richard-an- atheist-hesitates-to-visit-a-unitarian-universalist-congregation.
169. See Peter Wollheim, Atheists in Idaho: Non-believers on the Fringe, BOISE WEEKLY (Mar. 23, 2005), http://www.boiseweekly.com/boise/atheists-in-idaho/ content?oid=921480 (noting that atheists "liv[e] a double life").
170. The terminology of "coming out of the closet" is taken from the gay rights movement. See generally, e.g., Whitney Anspach et al., The Other Closet?: Atheists, Homosexuals, and the Lateral Appropriation of Discursive Capital, 4 CRITICAL DISCOURSE STUD. 95(2007).
171. Richard Wade, Ask Richard: Critical Mass: Atheists Facing the Unwelcome Christmas Ritual, FRIENDLY ATHEIST (Dec. 1, 2009), http://www.patheos.com/blogs/ friendlyatheist/2009/12/01/ask-richard-critical-mass-atheists-facing-the- unwelcome-christmas-ritual.
172. Jamila Bey, Black Women Who Use the "A" Word, ROOT (May 19, 2010), http://www.theroot.com/views/black-women-who-use-word;
173. see also Sikivu Hutchinson, "Out of the Closet": Black Atheists, BLACK AGENDA REP. (May 12, 2009), http://www.blackagendareport.com/ content/"out-closet"-black-atheists ("For black atheists, actively breaking with religious tradition is an even graver rejection than that of white intellectuals.... This is partly due to the fact that the history of African American civil and human rights resistance is heavily steeped in Judeo-Christian religious dogma.... If being black and being Christian are synonymous, then being black, female and religious (whatever the denomination) is practically compulsory. Black women with children who don't fall in line, who raise their children as atheists, may find their race credentials revoked.");
174. Your Pal Satan, Comment to The Invisibility of the Black Atheist, WORDS WRATH (May 28, 2008, 8:54 PM), http://wordsofwrath.blogspot.com/2008/05/ invisibility-of-black-atheist.html/showComment=1232254440008436544351337092301 ("I am a black, lesbian agnostic.... My family accepts the homosexuality, but the agnosticism is the dirty, little secret.").
175. Richard Wade, Ask Richard: Young Atheist Considers Coming Out to His Grandparents, FRIENDLY ATHEIST (Jan. 26, 2010), http://www.patheos.com/blogs/ friendlyatheist/2010/01/26/ask-richard-young-atheist-considers-coming-out-to- his-grandparents/("Over and over, so many of the stories relate how when the atheists came out, their families suddenly changed from loving and supportive, to cold, rejecting, hostile, and even vicious. The years that the atheist has spent being loving, supportive and loyal to the family apparently count for absolutely nothing, as if that never took place. They are instantly regarded as vile monsters simply because of their membership in a belief category. Their actual behavior or conduct has nothing to do with it. While the atheists may have expected some upset from the family, they are often stunned by the intensity of the reaction. ").
176. In his blog, Words of Wrath, Wrath James White complained, "In [most African American] communities you find more tolerance towards gangbusters, drug addicts, and prostitutes, who pray to God for forgiveness than for honest productive citizens who deny the existence of God." The Invisibility of the Black Atheist, WORDS OF WRATH (May 28, 2008, 10:37 PM), http://wordsofwrath. blogspot.com/2008/05/invisibility-ofblack-atheist.html.
177. BRUCE E. HUNSBERGER & BOB ALTEMEYER, ATHEISTS: A GROUNDBREAKING STUDY OF AMERICA'S NONBELIEVERS 55(2006).
178. Dave Silverman, Coming Out: The Other Closet, AM. ATHEISTS, http://www.atheists.org/atheism/coming-out (last visited Oct. 30, 2011) ("Many of us... hide in the shadows due to fear of hostility and aversion to confrontations.").
179. On his website, Richard Dawkins urges atheists to "COME OUT" of the closet: "You'll feel liberated." OUT CAMPAIGN, http://outcampaign.org/(last visited Oct. 30, 2011).
180. See, e.g., Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV. 119, 125-30(1989) (arguing that any attempt to articulate a single, unifying theory of free speech risks oversimplification).
181. JAMES MADISON, Memorial and Remonstrance (1785), reprinted in 8 THE PAPERS OF JAMES MADISON 295, ¶ 11, at 302 (Robert A. Rutland et al. eds., 1973) (stating that the bill establishing a provision for teachers of the Christian religion "will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. ").
182. McCreary Cnty. v. ACLU of Ky., 545 U. S. 844, 876(2005);
183. see also Capital Square Review & Advisory Bd. v. Pinette, 515 U. S. 753, 812(1995) (Stevens, J., dissenting) ("Our Constitution wisely seeks to minimize such strife by forbidding state-endorsed religious activity.").
184. See, e.g., Lee v. Weisman, 505 U. S. 577, 589-90(1992) ("It must not be forgotten... that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference.").
185. See generally Andrew Koppelman, Corruption of Religion and the Establishment Clause, 50 WM. & MARY L. REV. 1831(2009).
186. Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1181(1988). The Supreme Court has observed, "[R]eligion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate."
187. Engel v. Vitale, 370 U. S. 421, 432(1962)
188. Engel, 370 U. S. at 432
189. cited in Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U. S. 573, 648 n. 3(1989) (Stevens, J., concurring in part and dissenting in part).
190. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U. S. 819, 856(1995) (Thomas, J., concurring) ("Madison's seventh, ninth, eleventh, and twelfth arguments all speak, in some way, to the same intolerance, bigotry, unenlightenment, and persecution that had generally resulted from previous exclusive religious establishments."
191. (quoting ROBERT L. CORD, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION 21(1982)) (internal quotation marks omitted));
192. See, e.g., Douglas Laycock, Religious Liberty as Liberty, 7 J. CONTEMP. LEGAL ISSUES 313, 321(1996) (noting people's fears that "what starts with mere preference... will escalate to discrimination, suppression, or coerced participation in observances of the dominant religion" and contending that "[t]hese fears gain substance from history.").
193. W. Va. State Bd. of Educ. v. Barnette, 319 U. S. 624, 638(1943).
194. Lynn A. Baker, Constitutional Ambiguities and Originalism: Lessons from the Spending Power, 103 NW. U. L. REV. 495, 510(2009) ("In addition, the very purpose of many provisions of the original Constitution, as well as of the Bill of Rights, is to protect minorities from the majority-to protect the individual from the (majoritarian) government.").
195. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) (arguing for a robust view of the judiciary's role, including the protection of minority rights);
196. THE FEDERALIST No. 78, at 528 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) ("[T]he independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society.").
197. Van Orden v. Perry, 545 U. S. 677, 711(2005) (Stevens, J., dissenting).
198. The Supreme Court, however, has never explicitly held that the Free Exercise Clause protects nonbelievers to the same extent as believers or that atheism qualifies as a religion. E.g., Kaufman v. McCaughtry, 422 F. Supp. 2d 1016, 1022 (W. D. Wis. 2006) ("The United States Supreme Court has never determined whether atheism qualifies as a religion. ").
199. Compare Kaufman v. McCaughtry, 419 F.3d 678, 682 (7th Cir. 2005) (noting that under the Wisconsin administrative code regulating prisons, atheism is a religion for purposes of an inmate's request for an atheist study group)
200. with Kaufman v. Schneiter, 474 F. Supp. 2d 1014, 1027 (W. D. Wis. 2007) (describing an atheist study group as more akin to a secular debate society than to a group religious practice for purposes of an inmate's request for a study group).
201. Everson v. Bd. of Educ. of Ewing, 330 U. S. 1, 15-16(1947);
202. see also Torcaso v. Watkins, 367 U. S. 488, 495(1961) ("We repeat and again affirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion. '").
203. Wallace v. Jaffree, 472 U. S. 38, 52-53(1985).
204. McCreary Cnty. v. ACLU of Ky., 545 U. S. 844, 884(2005) (O'Connor, J., concurring) ("The Religion Clauses... protect adherents of all religions, as well as those who believe in no religion at all.");
205. Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U. S. 573, 590(1989) ("Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to 'the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.'"
206. (quoting Wallace, 472 U. S. at 52)).
207. In its religious-speech cases, for example, the Supreme Court has approved a statesponsored Ten Commandments monument, Van Orden, 545 U. S. at 681
208. and prayers before legislative sessions, Marsh v. Chambers, 463 U. S. 783, 786(1983).
209. Compare, e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 126-27(1992) (arguing, for example, that the Establishment Clause should not bar the state from sponsoring religious symbols such as a menorah or a crèche)
210. with Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2124(1996) (arguing that most kinds of ceremonial deism should violate the Establishment Clause). (Pubitemid 126406338)
211. Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST. L. J. 89, 103(1990) ("[T]he establishment clause has become a de facto substitute for an independent equal protection analysis of the treatment of religious minorities by the state....").
212. See, e.g., Burlington N. R. R. Co. v. Ford, 504 U. S. 648, 651(1992) (noting that classifications based on race or religion are suspect classifications);
213. City of New Orleans v. Dukes, 427 U. S. 297, 303(1976) (noting that a regulation does not trigger strict scrutiny under the Equal Protection Clause unless it "trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage").
214. Perhaps the courts should rely on the Equal Protection Clause. See Susan Gellman & Susan Looper-Friedman, Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the Establishment Clause), 10 U. PA. J. CONST. L. 665(2008). Because the case law has traditionally relied on the religion clauses and the equal protection concern with minorities overlaps with the traditional Establishment Clause concern for religious minorities, I will frame the issue as an Establishment Clause question. My arguments about the scope of equal protection apply with equal force regardless of which clause is applied.
215. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U. S. 520, 532(1993);
216. see also Locke v. Davey, 540 U. S. 712(2004) (deciding under religion clauses a challenge to a state ban on theology scholarships when the state allowed all other scholarships).
217. Church of the Lukumi Babalu Aye, 508 U. S. at 540 ("In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases.").
218. In addition, whether the Free Exercise Clause protections extend to nonbelievers is subject to debate. See, e.g., Kent Greenawalt, Diverse Perspectives and the Religion Clauses: An Examination of Justifications and Qualifying Beliefs, 74 NOTRE DAME L. REV. 1433, 1473(1999) (arguing that claims of conscience will rarely arise directly from atheist or agnostic convictions);
219. Mark D. Rosen, Establishment, Expressivism, and Federalism, 78 CHI.-KENT L. REV. 669, 682(2003).
220. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1533-45(2000);
221. Deborah Hellman, The Expressive Dimension of Equal Protection, 85 MINN. L. REV. 1, 2(2000). (Pubitemid 33629890)
222. Steven D. Smith, Expressivist Jurisprudence and the Depletion of Meaning, 60 MD. L. REV. 506, 510-11(2001) (arguing that expressivist scholars emphasize social or public meaning over legislative intent or speaker meaning).
223. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-07(1993) ("An expressive harm... results from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about.");
224. See, e.g., Plessy v. Ferguson, 163 U. S. 537, 560(1896)
225. (Harlan, J., dissenting) (explaining that "the real meaning of such legislation" is "that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens"), overruled by Brown v. Bd. of Educ., 347 U. S. 483(1954);
226. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L. J. 421, 427(1960) (arguing that the meaning of segregation is to put "the Negro in a position of walled-off inferiority").
227. See, e.g., Michael C. Dorf, Same-Sex Marriage, Second-Class Citizenship, and Law's Social Meanings, 97 VA. L. REV 1267(2011).
228. The expressivist approach to the equality component dovetails well with a structural approach to the Establishment Clause, as its primary focus is on what the state is empowered to do, as opposed to how state action affects individuals. See, e.g., Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L. REV. 1(1998). At the same time, because messages of inequality may perpetuate discrimination, an expressivist approach also comports with a rights-based approach to the Establishment Clause.
229. David Cole, Faith and Funding: Toward an Expressivist Model of the Establishment Clause, 75 S. CAL. L. REV. 559, 563(2002).
230. Lynch v. Donnelly, 465 U. S. 668, 688(1984) (O'Connor, J., concurring).
231. Kenneth L. Karst, Justice O'Connor and the Substance of Equal Citizenship, 2003 SUP. CT. REV. 357, 368 (noting that Justice O'Connor's endorsement test, with its "concern for dignitary harms bears a strong family resemblance to the concerns of modern equal protection doctrine as applied to discrimination against 'outsiders' in other categories of self-identity, such as race or sex or sexual orientation").
232. cf. Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363, 1444-47(2000).
233. E. Gregory Wallace, When Government Speaks Religiously, 21 FLA. ST. U. L. REV. 1183, 1222(1994)
234. (quoting Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the 'No Endorsement' Test, 86 MICH. L. REV. 266, 307(1987)).
235. Jesse H. Choper, The Endorsement Test: Its Status and Desirability, 18 J. L. & POL. 499, 521(2002) ("[A]bsent any meaningful threat to religious liberty, distressed sensibilities should not rise to the level of a judicially cognizable harm under the Establishment Clause....");
236. cf., e.g., William P. Marshall, The Concept of Offensiveness in Establishment and Free Exercise Jurisprudence, 66 IND. L. J. 351, 364(1991).
237. Rachel D. Godsil, Expressivism, Empathy and Equality, 36 U. MICH. J. L. REFORM 247, 249(2003).
238. Palmer v. Thompson, 403 U. S. 217, 219(1971);
239. see also Allen v. Wright, 468 U. S. 737, 755(1984) (denying standing to African-American parents who claimed that the state's failure to enforce antidiscrimination laws against private schools stigmatized them).
240. Palmer, 403 U. S. at 220 ("[T]his is not a case where whites are permitted to use public facilities while blacks are denied access.").
241. Palmer, 403 U. S. at 224 ("[N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.").
242. Brown v. Bd. of Educ., 347 U. S. 483(1954).
243. Strauder v. West Virginia, 100 U. S. 303, 308(1879)
244. abrogated by Taylor v. Louisiana, 419 U. S. 522(1975).
245. Shaw v. Reno, 509 U. S. 630, 643(1993). In addition, "[i]t reinforces the perception that members of the same racial group-regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls."
246. Miss. Univ. for Women v. Hogan, 458 U. S. 718, 725(1982).
247. Palmer v. Thompson, 403 U. S. 217, 240-41(1971) (White, J., dissenting). The dissent went on to say, "[B]y closing the pools solely because of the order to desegregate, the city is expressing its official view that Negroes are so inferior that they are unfit to share with whites this particular type of public facility...."
248. Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin's Defense of Affirmative Action, 31 HARV. C. R.-C. L. L. REV. 1, 25(1996).
249. Split decisions on religious displays result in part from the different social meanings attributed to the display. For example, the majority in Van Orden v. Perry held that the Ten Commandments monument merely acknowledged the role of religion in our Nation's heritage. Van Orden v. Perry, 545 U. S. 677, 688-89(2005). The dissent found that they represented a sacred religious text declaring God's divinity. Id. at 707-08, 717 (Stevens, J., dissenting). The majority in Newdow v. Rio Linda Union School District held that the Pledge of Allegiance was a patriotic exercise designed to foster love of country. Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1018 (9th Cir. 2010). However, the dissent argued that Congress added "under God" in order to indoctrinate children with a belief in God.
250. Religion is not immutable in the way that race and sex are (although these too are not entirely immutable). On the other hand, nor is religion mutable in the way that political beliefs are either; for many they are deeply rooted and extremely difficult to alter. Timothy L. Hall, Religion, Equality, and Difference, 65 TEMP. L. REV. 1, 62(1992) (arguing that religion works as a suspect classification in part because "[r]eligious convictions frequently appear to their possessors as immutable: something they did not choose, but which chose them"). Studies show that the majority of people identify with the religion they learned as a child.
251. See, e.g., PEW FORUM ON RELIGION & PUB. LIFE, FAITH IN FLUX 2-3(2009), available at http://pewforum.org/uploadedfiles/Topics/Religious- Affiliation/fullreport.pdf (finding that nearly three-quarters of adults belong to the religion of their childhood, with over half of adults belonging to the same denomination).
252. See, e.g., John E. Thompson, What's the Big Deal? The Unconstitutionality of God in the Pledge of Allegiance, 38 HARV. C. R.-C. L. L. REV. 563, 597(2003) (arguing that "religion [is] often crucial to self-identity, for believers and non-believers alike");
253. Tseming Yang, Race, Religion, and Cultural Identity: Reconciling the Jurisprudence of Race and Religion, 73 IND. L. J. 119, 121(1997) (arguing that race and religion play similar roles in self-identity).
254. See, e.g., Jesse H. Choper, Religion and Race Under the Constitution: Similarities and Differences, 79 CORNELL L. REV. 491, 491-93(1994) (arguing that a history of hostility and hate toward religious beliefs and race provides a strong justification for strict scrutiny of government discrimination based upon either). (Pubitemid 24808649)
255. Salazar v. Buono, 130 S. Ct. 1803, 1811-13(2010).
256. In other words, it is the only monument honoring WWI veterans that has been designated a national landmark. Brief for Jewish War Veterans of the United States of America, Inc. as Amicus Curiae Supporting Respondent at 4, Salazar, 130 S. Ct. 1803 (No. 08-472), 2009 WL 2406367.
257. See, e.g., Brief of the Thomas More Law Center et al. as Amici Curiae Supporting Petitioners at 16, Salazar, 130 S. Ct. 1803 (No. 08-472)
258. WL 1629704 ("[A] reasonable observer would know that while the cross is a religious symbol, it is also a universal symbol of self-sacrifice-and in the context of a war veterans' memorial, the cross is a symbol of the ultimate sacrifice made for one's country.").
259. See, e.g., Brief Amicus Curiae of the Freedom from Religion Foundation in Support of Respondent at 9, Salazar, 130 S. Ct. 1803 (No. 08-472), 2009 WL 2406366 ("No secular purpose, no matter how sincere, will detract from the overall message that the Latin cross stands for Christianity and the overall display promotes Christianity.").
260. See generally Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. REV. 1545(2010). Of course, the nonfavored group's understanding must be plausible. It is reasonable for an American nonbeliever to view a cross or a crèche as a preference for Christianity. On the other hand, a reasonable nonbeliever would not view Earth Day in the United States as an endorsement of Gaia/Earth Goddess worship.
261. Plessy v. Ferguson, 163 U. S. 537, 551(1896) ("We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.")
262. overruled by Brown v. Bd. of Educ., 347 U. S. 483(1954).
263. See generally Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1(1959).
264. The recent Supreme Court case Salazar v. Buono, which involved a Latin cross monument in the Mojave National Preserve, never actually reached this question. Instead, it held that a transfer of state-park land to private parties did not violate the lower court's injunction barring the state from displaying a Latin cross on public property. Salazar v. Buono, 130 S. Ct. 1803, 1816-17(2010). In finding unconstitutional a Latin cross war memorial atop Mount Soledad, however, the Ninth Circuit held that "[t]he use of such a distinctively Christian symbol to honor all veterans... suggests that the government is so connected to a particular religion that it treats that religion's symbolism as its own, as universal."
265. Trunk v. City of San Diego, 629 F.3d 1099, 1124-25 (9th Cir. 2011).
266. Cf. PEW FORUM ON RELIGION & PUB. LIFE, U. S. RELIGIOUS KNOWLEDGE SURVEY 6-7(2010) (noting that a questionnaire on religious knowledge showed that Jews, atheists, and agnostics had the most knowledge of world religions). A Jew in the United States for example, aware of majority traditions, is not likely to claim that the Star of David is a universal symbol of death.
267. Ellis v. City of La Mesa, 990 F.2d 1518, 1525 (9th Cir. 1993)
268. (quoting Okrand v. City of Los Angeles, 254 Cal. Rptr. 913, 922 (Ct. App. 1989)).
269. See, e.g., Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U. S. 573, 661(1989) (Kennedy, J., concurring in the judgment in part and dissenting in part) ("[T]he [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall.").
270. See, e.g., Am. Atheists, Inc. v. Duncan, 616 F.3d 1145, 1162 (10th Cir. 2010) (finding that state roadside crosses commemorating the deaths of highway patrol members were predominately religious symbols in part because "there is no evidence in this case that the cross has been widely embraced by non-Christians as a secular symbol of death")
271. amended and superseded sub nom. Am. Atheist, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010).
272. Options include the Buddhist Wheel of Righteousness, the Jewish Star of David, the Bahai Nine Pointed Star, the Muslim Crescent and Star, the Sikh Khanda, and the Wicca Pentacle. Available Emblems of Belief for Placement on Government Headstones and Markers, U. S. DEP'T OF VETERANS AFFAIRS, http://www.cem.va.gov/hm/hmemb.asp (last visited Nov. 1, 2011). Nonbelievers also have options, including the Humanist Emblem of Spirit and the Atheist Atom Symbol.
273. Trunk v. City of San Diego, 629 F.3d 1099, 1112 (9th Cir. 2011). While American soldiers who died during World War I and World War II are memorialized with crosses in Europe and the Pacific, these crosses mark the individual graves of Christian soldiers.
274. This assumption can be rebutted, as states adopted the confederate flag in reaction to desegregation. For example, Georgia changed its state flag to incorporate the confederate flag in 1956, Georgia Military Forces Reorganization Act of 1955, No. 29, sec. 1, § 90, 1956 Ga. Laws 38, 39, and South Carolina starting flying the confederate flag instead of its state flag on its state capitol dome in 1962, David Firestone, South Carolina Votes to Remove Confederate Flag from Dome, N. Y. TIMES (May 19, 2000), http://www.nytimes.com/ 2000/05/19/us/southcarolina-votes-to-remove-confederate-flag-from-dome.html.
275. See Kenneth L. Karst, The First Amendment, the Politics of Religion and the Symbols of Government, 27 HARV. C. R.-C. L. L. REV. 503, 511(1992) (suggesting that government endorsement of religion reinforces dominant and subordinate positions of religious groups);
276. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2024-25(1996) (describing how legal statements help shape social norms). (Pubitemid 126408773)
277. Strauder v. West Virginia, 100 U. S. 303, 308(1879)
278. abrogated by Taylor v. Louisiana, 419 U. S. 522(1975).
279. William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N. Y. U. L. REV. 1327, 1333(2000);
280. see also Danielle Keats Citron, Law's Expressive Value in Combating Cyber Gender Harassment, 108 MICH. L. REV. 373, 407(2009) ("Because law creates and shapes social mores, it has an important cultural impact....");
281. See Thomas Healy, Stigmatic Harm and Standing, 92 IOWA L. REV. 417, 451-52(2007).
282. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1214(1995);
283. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CALIF. L. REV. 997, 1032-33(2006).
284. Behavior is interpreted differently if performed by a white person rather than a black person or a man rather than a woman. Thus, for example, "[r]ésumés are evaluated more favorably when they carry male rather than female names." Deborah L. Rhode, The Subtle Side of Sexism, 16 COLUM. J. GENDER & L. 613, 618(2007)
285. (citing Rhea E. Steinpreis et al., The Impact of Gender on the Review of Curricula Vitae of Job Applicants and Tenure Candidates: A National Empirical Study, 41 SEX ROLES 509(1999)).
286. Steven G. Gey, Rewriting the Establishment Clause for One Nation Under (a) God, 41 TULSA L. REV. 737, 757(2006) ("In most parts of the country, an avowed atheist or agnostic who has the bad judgment to announce that fact will have no chance of winning a political contest."). As with all rules, however, there may be exceptions. For example, Congressman Fortney Hillman "Pete" Stark, Jr., who had served since 1973 as a Democrat from California, was re-elected in 2008 despite having confirmed in 2007 that he was a Unitarian who did not believe in a supreme being.
287. Carla Marinucci, Stark's Atheist Views Break Political Taboo, SFGate.com (Mar. 14, 2007), http://articles.sfgate.com/2007-03-14/news/17235967-1-atheist- secular-coalitionpolitical-suicide.
288. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE (25th anniv. ed. 1979) (explaining the benefits of increased social contact between groups as a means to assuage the negative effects of discrimination).
289. Habecker v. Town of Estes Park, 518 F.3d 1217, 1224-25 (10th Cir. 2008).
290. Congress enacted § 1983 to "create[] a right of action in Federal court against local government officials who deprive citizens of their
291. Van Orden v. Perry, 545 U. S. 677(2005);
292. Santa Fe Indep. Sch. Dist. v. Doe, 530 U. S. 290(2000).
293. See, e.g., Malley v. Briggs, 475 U. S. 335, 345 n. 7(1986) ("[Section] 1983 'should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'"
294. (quoting Monroe v. Pape, 365 U. S. 167, 187(1961))).
295. Actual harm is generally understood as addressing the empirical question of whether the defendant caused the harm, while proximate cause is understood as addressing "the normative issue of the proper extent of legal responsibility." See, e.g., Richard W. Wright, Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility, 54 VAND. L. REV. 1071, 1073(2001) (criticizing the Restatement's treatment of legal cause). (Pubitemid 33656609)
296. Habecker had served as a town trustee intermittently over a twenty-year period before the pledge policy outed him as a nonbeliever. Habecker v. Town of Estes Park, 452 F. Supp. 2d 1113, 1116 (D. Colo. 2006)
297. aff'd, 518 F.3d 1217 (10th Cir. 2008).
298. See Limone v. United States, 579 F.3d 79, 100 (1st Cir. 2009) (holding that the FBI may be liable under § 1983 for failing to turn over exculpatory evidence even though the state's decision to prosecute and the jury's decision to convict were intervening acts because those intervening acts were foreseeable consequences);
299. Kerman v. City of New York, 374 F.3d 93, 127 (2d Cir. 2004) ("The fact that the intervening third party may exercise independent judgment... does not... relieve the defendant of responsibility.").
300. Sanchez v. Pereira-Castillo, 590 F.3d 31, 51 (1st Cir. 2009);
301. see also Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 609 (6th Cir. 2007) ("Even if an intervening third party is the immediate trigger for the plaintiff's injury, the defendant may still be proximately liable [under § 1983], provided that the third party's actions were foreseeable.").
302. Palay v. United States, 349 F.3d 418 (7th Cir. 2003) (reversing a dismissal in a § 1983 suit for damages from gang violence that was considered a foreseeable consequence of transferring prisoner).
303. Cf. Abner S. Greene, The Pledge of Allegiance Problem, 64 FORDHAM L. REV. 451, 472(1995) (arguing that the school's policy of requiring the Pledge should be considered a proximate cause of pressuring students to participate, even if peer pressure is the immediate direct cause).
304. Since this is so well known, it is obviously foreseeable that advancing these stereotypes would lead to discrimination. Notably, under tort law it is the general type of harm, not the actual injury suffered, that must be foreseeable. Palay, 349 F.3d at 434 ("[S]o long as the defendant could have foreseen that his negligence would result in some type of injury, the precise nature or method of injury need not have been foreseeable.").
305. Cf. Massachusetts v. EPA, 549 U. S. 497, 523-25(2007) (stating that to have standing to sue the EPA to regulate vehicle emissions, it was enough for Massachusetts to show that the EPA's failure to regulate contributed to the Commonwealth's global-warming injuries);
306. Frank H. Easterbrook, Foreword, The Court and the Economic System, 98 HARV. L. REV. 4, 40(1984) ("Someone who feeds me a poison that increases my chances of dying next year has injured me, even if I am neither dead nor sure to die....").
307. Patrick M. Garry, A Congressional Attempt To Alleviate the Uncertainty of the Court's Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 CUMB. L. REV. 1, 5(2006) ("[T]he remedies [in Establishment Clause challenges] are most often injunctions against the offending governmental practice or an overturning of a particular law or ordinance.");
308. see also, e.g., Salazar v. Buono, 130 S. Ct. 1803, (2010) (involving a plaintiff that sought an injunction requiring the state to remove a large Latin cross in the Mojave National Preserve).
309. For example, it is usually not possible to pinpoint whose asbestos caused asbestosis or increased the plaintiff's risk of contracting the condition. Joseph Sanders, Michael D. Green & William C. Powers, Jr., The Insubstantiality of the "Substantial Factor" Test for Causation, 73 MO. L. REV. 399, 415-16(2008). Victims often could not determine with any precision how much any particular defendant's product contributed to their injury.
310. Joseph Sanders, From Science to Evidence: The Testimony on Causation in the Bendectin Cases, 46 STAN. L. REV. 1, 14(1993) ("In mass tort cases, proof of causation comes in two parts: general causation and specific causation. ");
311. see also Merrell Dow Pharm., Inc. v. Havner, 953 S. W.2d 706, 714-15 (Tex. 1997) (noting that in toxic-tort cases, plaintiff must show both general causation and specific causation).
312. See Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945, 955-56(2006);
313. See, e.g., Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir. 1994) ("[I]t is enough that the defendant's fault was a 'substantial factor' in producing the plaintiff's injuries, and the defendant's fault need not have been the sole proximate cause in order to allow recovery."
314. (quoting Trudeav v. Wyrick, 713 F.2d 1360, 1367 (8th Cir. 11983)));
315. FDIC v. Bierman, 2 F.3d 1424, 1434 (7th Cir. 1993) (noting that proximate cause "need only be a substantial factor" leading to the injury, not the sole factor).
316. See, e.g., Sindell v. Abbott Labs., 607 P.2d 924, 928-30 (Cal. 1980) (apportioning damages in DES mass tort case based on market share).
317. In some jurisdictions, once it has been established in toxic-tort suits that the challenged conduct or product could cause the type of injury that plaintiff suffered, the burden of proof shifts to defendants to show that their particular conduct or product was not a cause-infact. In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740, 832 (E. D. N. Y. 1984) (using burden-shifting to solve the indeterminate-defendant problem)
318. aff'd, 818 F.2d 145 (2d Cir. 1987);
319. Abel v. Eli Lilly & Co., 343 N. W.2d 164, 170 (Mich. 1984) (explaining that the burden of proof in DES cases may be shifted to defendants on the element of causation in fact);
320. Collins v. Eli Lilly Co., 342 N. W.2d 37, 52 (Wis. 1984) (same).
321. Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1220 (Cal. 1997).
322. Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause, 90 CALIF. L. REV. 673, 708-09(2002) ("To say that the Establishment Clause prohibits this harm is to say that the Clause aims to stop the state from creating conditions that would impede the equal ability of religious dissenters to realize their political lives.").
323. In a 1984 public opinion poll, 36% of Americans said that a very important reason why the Soviet Union is considered our enemy is because its people were atheists. Pub. Agenda Found., Nuclear Arms and National Security Poll (May 1984), available at iPoll Databank, supra note 98. Respondents were asked to rank on a scale of one to ten the importance of that reason, where ten means "a very important reason" and one means "not at all important." Thirty-six percent chose ten.
324. A number of private billboards make plain this link. A West Virginia billboard reads "Anti-God is Anti-American. " Billboard Wars, DANGEROUS TALK, http://www.dangeroustalk.net/billboard-wars.html (last visited Nov. 1, 2011). A Pennsylvania billboard, referring to the attempts to remove "under God" from the Pledge, depicts a little girl pledging allegiance to the American flag with the tag line "Why Do Atheists Hate America?"
325. Salazar v. Buono, 130 S. Ct. 1803, 1820(2010).
326. Wallace v. Jaffree, 472 U. S. 38, 52(1985) (stating that freedom of religion requires "equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism").
327. See, e.g., Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 313(1986) (explaining that under the Establishment Clause, "government can neither keep persons from exercising certain religious beliefs nor may it make them exercise any religion").
328. Exodus 20:3 (internal quotation marks omitted).
329. Sch. Dist. of Abington Twp. v. Schempp, 374 U. S. 203, 319-20(1963) (Stewart, J., dissenting) ("What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government.").
330. See generally Derek H. Davis, Editorial, Is Atheism a Religion? Recent Judicial Perspectives on the Constitutional Meaning of "Religion," 47 J. CHURCH & ST. 707, 708(2005).
331. Secular humanists, for example, may be more focused on "express[ing] [their] commitment to improv[ing] human welfare in this world." What Are Secular Humanist Values?, COUNCIL FOR SECULAR HUMANISM, http://www. secularhumanism.org/index.php?section=main&page=values (last visited Nov. 1, 2011).
332. See, e.g., Kent Greenawalt, Diverse Perspectives and the Religion Clauses: An Examination of Justifications and Qualifying Beliefs, 74 NOTRE DAME L. REV. 1433, 1459-61(1999) (observing that the state can establish atheism if it is not considered a religion);
333. Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 1002(1990) ("Th[e] constitutional conception of religious belief as any belief about religion explains why atheists are protected from persecution, and why the government cannot establish atheism." (footnote omitted)).
334. But cf., e.g., Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir. 2007) (noting that a parole officer had recommended revoking parole because he refused to participate in Alcoholics Anonymous-a program rooted in religious faith).
335. But cf., e.g., Debra Cassens Weiss, Miss. Judge Sends Lawyer to Jail for Refusing To Recite the Pledge, A. B. A. J. (Oct. 7, 2010), http://www. abajournal.com/news/article/miss.-judge-sends-lawyer-to-jail-for-refusing-to- recite-the-pledge/(noting that after the attorney silently stood during the Pledge but refused to recite the words, the judge held him in contempt of court and sent him to jail). The judge was later reprimanded for misusing the powers of contempt. Miss. Comm'n on Judicial Performance v. Littlejohn, 2010-JP-01954-SCT (¶¶4-10, 20) (Miss. 2010).
336. The opt-out provision became constitutionally required after Jehovah's Witnesses successfully claimed that mandatory recitation of the Pledge in school violated their freedom of conscience. W. Va. Bd. of Educ. v. Barnette, 319 U. S. 624, 642(1943). At the time of the challenge, "under God" had not yet been added.
337. Compare Lee v. Weisman, 505 U. S. 577, 593(1992) (defining coercion more broadly to include peer pressure), with id. at 642 (Scalia, J., dissenting) ("I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty....").
338. Santa Fe Indep. Sch. Dist. v. Doe, 530 U. S. 290, 312(2000) ("[T]he delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. ");
339. Lee, 505 U. S. at 593 ("[A] high school graduation ceremony places public pressure, as well as peer pressure, on attending students.... This pressure, though subtle and indirect, can be as real as any overt compulsion. ").
340. E.g., Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010) (holding that the Pledge was a patriotic rather than religious exercise).
341. Marsh v. Chambers, 463 U. S. 783, 792(1983) (noting that as an adult, Marsh was "presumably not readily susceptible to 'religious indoctrination' or peer pressure"
342. (citations omitted)); cf. Sch. Dist. of Abington Twp. v. Schempp, 374 U. S. 203, 291 n. 69(1963) (Brennan, J., concurring) ("It is also apparent that... social influence within the school environment varies inversely with the age, grade level, and consequent degree of sophistication of the child.").
343. In Asch's classic experiment on conformity, subjects were shown three lines and asked which best matched a fourth line. When asked with no one present, 99% answered correctly. When asked after several people gave the wrong answer, 70% of the subjects went along with the group at least once and also gave the wrong answer. SOLOMON E. ASCH, SOCIAL PSYCHOLOGY 450-59(1952);
344. see Solomon E. Asch, Studies of Independence and Conformity, 70 PSYCHOL. MONOGRAPHS: GEN. & APPLIED 1, 1, 9-24(1956);
345. see also LEE ROSS & RICHARD E. NISBETT, THE PERSON AND THE SITUATION 33(1991) ("[S]tudies [have] demonstrated again and again that arbitrarily constructed groups, even ones that hold no long-term power to reward conformity or punish dissent, can exert potent conformity pressures.").
346. Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 714 F. Supp. 932, 937 (N. D. Ill. 1989) (finding that a first-grader with freethinking background may have felt compelled to recite the Pledge because of "fears of embarrassment [and] potential loss of...friends" (internal quotation marks omitted)).
347. see also Marsh, 463 U. S. at 808 (Brennan, J., dissenting) ("Legislative prayer.... intrudes on the right to conscience by forcing some legislators either to participate in a 'prayer opportunity' with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate." (internal citation omitted)).
348. See Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U. S. 573, 662(1989) (Kennedy, J., concurring in the judgment in part and dissenting in part) ("[T]he risk of infringement of religious liberty by passive or symbolic accommodation is minimal.");
349. Douglas Laycock, Religious Liberty in America, HUM. RTS., Summer 2006, at 3, 6 ("[I]t is hard to find coercion in a passive display.").
350. Engel v. Vitale, 370 U. S. 421, 430(1962).
351. See, e.g., PUBLIC COMMUNICATION CAMPAIGNS 277 (RONALD E. RICE & CHARLES K. Atkin eds., 3d ed. 2001) (arguing that there is suggestive evidence that the Smoky the Bear campaign has reduced forest fires);
352. D. Hammond et al., Effectiveness of Cigarette Warning Labels in Informing Smokers About the Risk of Smoking: Findings from the International Tobacco Control (ITC) Four Country Survey, 15 TOBACCO CONTROL iii19, iii19(2006) (noting that recent research "indicates that graphic warning labels on cigarette packages can increase cessation behaviour among smokers");
353. Jennifer K. Ibrahim & Stanton A. Glantz, The Rise and Fall of Tobacco Control Media Campaigns, 1967-2006, 97 AM. J. PUB. HEALTH 1383, 1394(2007) ("[T]here is strong empirical evidence that... media campaigns can substantially contribute to a reduction in smoking rates.").
354. The Supreme Court's greater concern about proselytizing to schoolchildren is presumably based on the idea that children's religious beliefs may be less defined and that children are more vulnerable to proselytizing. Tilton v. Richardson, 403 U. S. 672, 685-86(1971) (noting that college students were "less impressionable and less susceptible to religious indoctrination" than those in primary or secondary school).
355. See Carl H. Esbeck, A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 EMORY L. J. 1, 26(1997) (noting that an "integrating principle" of the religion clauses is to "neutraliz[e] the impact of governmental action on personal religious choices");
356. Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 EMORY L. J. 43, 43-44(1997) (arguing that an underlying purpose of religious liberty is to minimize government influence on religious choices).
357. Hiding one's true self means sacrificing potential support from those who share the same stigmatized trait. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 YALE L. J. 485, 527-28(1998).
358. Id. at 528 (summarizing studies of lesbians, gay men, and bisexuals that describe how passing requires "constantly decid[ing] whether to tell, whom to tell, and when to tell," and "constantly monitor[ing] emotional responses in order not to reveal... true feelings" (alteration in original) (quoting Joanne Di Placido, Minority Stress Among Lesbians, Gay Men, and Bisexuals, in STIGMA AND SEXUAL ORIENTATION, 138, 148-49 (Gregory M. Harek ed., 1998)) (internal quotation marks omitted)).
359. As one atheist remarked, "One of the things that rules your life when you're an atheist is fear. You never know when you're going to be attacked." Richard Cimino & Christopher Smith, Secular Humanism and Atheism Beyond Progressive Secularism, 68 SOC. RELIGION 407, 421(2007) (quoting Paul, a "fifty-six-year-old businessman in Washington, D. C [sic] area during the Godless March on Washington") (internal quotation marks omitted);
360. Prince v. Massachusetts, 321 U. S. 158(1944) (holding that a Jehovah's Witness child may not sell religious magazines in contravention of state child labor laws).
361. ACLU of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 307 (6th Cir. 2001) (noting that "the national motto, and the national anthem, and the pledge of allegiance... [are] symbol[s] of a common identity" and that "[s]uch symbols unquestionably serve an important secular purpose-reenforcing the citizen's sense of membership in an identifiable state or nation").
362. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 6(2004).
363. Salazar v. Buono, 130 S. Ct. 1803, 1811(2010).
364. Along these lines, crèches are meant to celebrate the holiday season, Lynch v. Donnelly, 465 U. S. 668, 681(1984)
365. and the Ten Commandments are meant to recognize our history, Van Orden v. Perry, 545 U. S. 677, 686-88(2005).
366. FAQS, VIET. VETERANS MEMORIAL FUND, http://www.vvmf.org/141.cfm (last visited Nov. 1, 2011).
367. The World War II Memorial in Washington, D. C. is comprised of 56 columns in two half circles with arches at either end. World War II Memorial, NPS.gov, http://www.nps.gov/nwwm/historyculture/index.htm (last visited Sept. 22, 2011).
368. The Korean War Veterans Memorial in Washington, D. C. consists of nineteen stainless steel statues representing ground troops on patrol. Korean War Veterans Memorial, NPS.gov, http://www.nps.gov/kowa/index.htm (last visited Nov. 1, 2011). Countless other memorials have used flames, fountains, flags, eagles, architectural elements, or other nonreligious elements.
369. See, e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 120(1992) (describing that the court interpreted the religion clauses to protect individual religious life and to foster a regime of religious pluralism).
370. Richard M. Esenberg, Must God Be Dead or Irrelevant: Drawing a Circle That Lets Me In, 18 WM. & MARY BILL RTS. J. 1, 8(2009) (stating that the government's attempt to remain religiously neutral in its public speech results in a "public secularity that makes religious dissenters just as uncomfortable as public religiosity would make nonadherents.").
371. A recent study has shown that many Americans misunderstand exactly what is forbidden by the Establishment Clause. Just over a third (36%) understood that comparative religion classes may be taught in public school, while even fewer (23%) understood that public school teachers could read from the Bible as an example of literature. PEW FORUM ON RELIGION & PUB. LIFE, U. S. RELIGIOUS KNOWLEDGE SURVEY 9(2010), available at http://pewforum.org/uploadedFiles/ Topics/Belief-and-Practices/religious-knowledge-full-report.pdf.
372. Sch. Dist. of Abington Twp. v. Schempp, 374 U. S. 203, 225(1963) ("Nothing we have said here indicates that [the] study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.").
373. Santa Fe Indep. Sch. Dist. v. Doe, 530 U. S. 290, 302(2000) ("[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."
374. (quoting Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U. S. 226, 250(1990) (internal quotation marks omitted)).
375. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U. S. 819(1995);
376. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U. S. 384(1993);
377. Widmar v. Vincent, 454 U. S. 263(1981).
378. See, e.g., Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132(2009). Subject-matter limits, however, need only be rational in nonpublic forums.
379. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U. S. 37, 54(1983).
380. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1823(2010) (Alito, J., concurring) ("The demolition of this venerable if unsophisticated, [Latin cross war] monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country's religious heritage.").
381. Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 MICH. L. REV. 266, 310-11(1987) (stating that if the state speaks religiously, "persons who do not adhere to the predominant religion may feel like 'outsiders, '" and if it does not, "some religious people will feel that their most central values and concerns... have been excluded from a public culture devoted purely to secular concerns"). An alternative approach might be to speak favorably of both; for example, perhaps the Pledge of Allegiance could include "without God" and the national motto could include "God," but that seems like a much less effective way of withholding judgment or favor than simply not endorsing any belief system. Besides the oddness, it still reflects a worldview that assumes only two positions on religion: belief in God, or disbelief in God. It ignores all the believers whose faith does not center on God.
382. Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U. S. 573, 610(1989).
383. Rex J. Ahdar, A Christian State?, 13 J. L. & RELIGION 453, 458(1999) (observing James Wood's view that "the concept of a secular state was not born out of a hostility toward religion (for the secular state is neither hostile nor friendly but is simply uncommitted in matters religious) but rather out of a respect for freedom of conscience and a recognition of the incompetence of the state in purely spiritual matters").
384. Cnty. of Allegheny, 492 U. S. at 612-13 ("[T]he Court's decision today, [requiring removal of a nativity scene], does not represent a hostility or indifference to religion but, instead, the respect for religious diversity that the Constitution requires.").
385. The Establishment Clause prohibitions are, after all, also meant to protect the favored religion from corruption and degradation. Some Christians, for example, believe that allowing government to speak religiously actually undermines Christianity. See, e.g., Kathleen A. Brady, Fostering Harmony Among the Justices: How Contemporary Debates in Theology Can Help To Reconcile the Divisions on the Court Regarding Religious Expression by the State, 75 NOTRE DAME L. REV. 433, 553(1999) ("[R]eligious expression by the government may distort and demean the sacred meaning that religious language and symbols carry for many individuals.");
386. see also Thomas C. Berg, The Pledge of Allegiance and the Limited State, 8 TEX. REV. L. & POL. 41, 71(2003) ("[S]ilence about God is... the way in which the state in America acknowledges its limits. If the state makes any explicit religious affirmation, it ends up defining and limiting the transcendent reality rather than deferring to it. Therefore, the only way for the state to acknowledge its limits is by remaining silent....").
387. There is no denying that some Christians genuinely feel under attack. The substitution of "happy holidays" for "merry Christmas" by private retailers has been described as evidence of a "War on Christmas." The American Family Association urges its members to boycott stores who attempt to be nonsectarian during the holiday season. Natalie Zmuda, In "The War on Christmas," Christmas is Winning, MSNBC. COM (Nov. 22, 2010), http://www.msnbc. msn.com/id/40260889/ns/business-holiday-retail/t/war- christmas-christmas-winning/#.TlW520LWTFB (reporting that, according to the American Family Association, the percentage of retailers whose advertisements include Christmas has increased from 20% to 80% in the past five years).
388. In other words, while pledges in general may violate some people's religious beliefs, see, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U. S. 624, 642(1943), a pledge is not likely to violate a person's belief because it does not include God. To argue otherwise would mean that the pledge recited by millions through two world wars violated people's religious beliefs for lacking any mention of God.
389. Cf. Steven G. Gey, "Under God," the Pledge of Allegiance, and Other Constitutional Trivia, 81 N. C. L. REV. 1865, 1907(2003).