Contrary to the historical record, some supporters of church-state separation seem to think that the concept only prohibits government from favoring any religion over other religions. They appear to be unaware that in order for freedom of conscience in matters of religion to be complete, atheists must have equal rights under the law.
It really couldn’t be any other way. We cannot have freedom of religion without freedom from religion. The right not to believe is as important as the right to believe. From 1947 to October 2018, the U.S. Supreme Court, with some notable lapses, generally understood that the religion clauses of the First Amendment equally protect both believers and nonbelievers. That changed in October 2018 when President Donald Trump’s appointee Justice Brett Kavanaugh succeeded Justice Anthony Kennedy to the bench, thus creating the first-ever 5-to-4 Religious Right majority on the court. In October 2020, this majority was expanded to 6-to-3 when Trump appointed Justice Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg.
In the 1947 case of Everson v. Board of Education, the court ruled that “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence people to go to or to remain away from church against their will or force them to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
In 1961, in Torcaso v. Watkins, the Supreme Court further elaborated on the constitutionally mandated equality of believers and nonbelievers, ruling that no branch of government can “constitutionally pass laws or impose requirements which aid all religions as against nonbelievers …” Still later, in 2005, in McCreary County v. ACLU, the court reiterated the position that no branch of government can favor “religion over irreligion.”
Aside from any Supreme Court decision, fundamental fairness requires that there should be no second-class citizenship status for nonreligious people. But how do we know that America’s Framers specifically intended for there to be legal equality for atheists?
Kavanaugh and Chief Justice John Roberts look on during inauguration ceremonies in the Rotunda of the U.S. Capitol on January 20, 2025, in Washington, D.C., as Donald Trump takes office for his second term as president. (Photo by Chip Somodevilla/Getty Images)
The record shows such a purpose. James Madison was the primary author of the First Amendment, including the religion clauses. It is beyond dispute that Thomas Jefferson had the most influence on him regarding government and religion. In terms of the separation of church and state, their views on the subject were identical for all practical purposes.
In 1787, in Query XVII of his “Notes on the State of Virginia,” Jefferson wrote: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket nor breaks my leg.” This shows how the joint Jefferson-Madison perspective sought to provide nonbelievers with equal rights.
In 1786, Madison secured the passage of Jefferson’s Statute for Religious Freedom by the Virginia Legislature. Years later in 1821, in his “Autobiography,” Jefferson expressed delight that efforts to amend the statute to protect only Christians failed and that “within the mantle of its protection,” are “the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.”
Prior to the Bill of Rights, the Constitution had only one reference to religion, voiced in the negative. In Article VI, Clause 3, the Founders prohibited all religious tests for public office. In February 1788, a year and four months before he introduced into Congress the first draft of what was to become the First Amendment, Madison defended the prohibition of religious tests for office in Federalist 52. He wrote that holding office should be “open to merit of every description … without regard to … any particular profession of religious faith.”
In the 1961 Torcaso case, the Supreme Court looked to the Founding era in referencing James Iredell, a future Supreme Court justice who participated in the debates during the Constitution’s ratification process. Iredell, arguing in favor of no religious tests for office, stated that if we are to value religious liberty, we must allow “pagans” and those “who have no religion at all” to be elected to office.
In an October, 1788 letter to Jefferson, Madison was contemptuous of objections to the prohibition of any religious test for office because they were rooted in a prejudice against “Jews, Turks & infidels.” Madison was also concerned that the “rights of conscience” would be substantially narrowed if “submitted to public definition.” Clearly, both Jefferson and Madison are on record as supporting equal rights for “infidels.”
In his 1785 “Memorial and Remonstrance Against Religious Assessments,” voicing opposition to a proposal to tax all Virginia residents in order to support Christian clergy, Madison wrote about the fundamental rights of conscience in matters of religion. Those rights are inalienable, he insisted, because people who decide what to believe about religion “depending only on the evidence contemplated by their own minds cannot follow the dictates of others.”
In June 1789, Madison introduced into Congress the first draft of what was to become the First Amendment. Though the record of the debates in the House is sparse, Rep. Daniel Carroll of Maryland, one of the 55 delegates to the Constitutional Convention, two years earlier argued that government should have no power to favor any viewpoint on matters of religion. He insisted that “the rights of conscience are, in their nature, of peculiar delicacy, and will little bear even the gentlest touch of government hand.”
From these historical records we can readily see that prior to all other considerations, the underlying theme that runs through the concerns of the Framers is the protection of the equal rights of conscience for all points of view pertaining to religion, regardless of whether someone believes in a deity.
Following debate on the Bill of Rights, the House sent to the Senate wording that read: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” No records exist of any debate in the Senate. There is only a record of motions and votes. However, the Senate did reject two proposed revisions that would have watered down the House’s wording. One read: “Congress shall make no law establishing one religious sect or society in preference to others.” The other said: “Congress shall make no law establishing any particular denomination of religion in preference to another.” Neither were ever brought back. Each would have more strongly indicated that government was only prevented from favoring any religion or religions over any other, with possibly no clear prohibition against favoring religion, collectively, over non-belief.
The Senate sent back to the House a different version: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” When the House rejected the Senate’s wording, a joint conference committee of representatives and senators was assembled. Madison chaired the House delegation. The committee adopted what became the actual text: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …”
In the broader context, the debates over what was to become the entire Bill of Rights were directed at restricting — rather than expanding — government authority. Not just the final wording of the Establishment Clause, but also the expressed views of the Framers, particularly Madison, demonstrate that the Bill of Rights did not grant government the authority to favor one religion over others, or all religions against non-belief.
Madison also wanted to force state governments to uphold the rights of conscience for everyone, but did not succeed. The First Amendment was ratified in 1791. It was not until the 20th century that the Supreme Court began incorporating the individual freedoms of the Bill of Rights to restrain state governments, by way of the Due Process Clause of the 14th Amendment. The Establishment Clause was not applied to the states until the Everson case in 1947.
Ironically, today’s Christian Nationalists, by ignoring the historical record, reject two of the most important pillars of conservative jurisprudence: original intent — what the Framers intended — and textualism — what the actual wording says. Even as they claim allegiance to the intent of the authors of the Bill of Rights, they disingenuously disregard atheists’ equal constitutional rights as secured by our nation’s Framers.
Since atheists are provided with equal constitutional rights, the fact that we who identify as such make up only a small minority of the population of the United States is irrelevant to our entitlement to the full enjoyment of those rights. The protections provided by the First Amendment are counter majoritarian. If 99.9% of the residents of a city wanted to exclude atheists from living there, such exclusion would still be unconstitutional. No government official would have the authority to implement the anti-atheist prejudice of even such an overwhelming majority.
As the Supreme Court said in the 1943 case of West Virginia State Board of Education v. Barnette: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” The court further said that such “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
In 2022, Americans United directly argued the case of Kennedy v. Bremerton School District before the Supreme Court, representing the school district. The six Religious Right justices ruled that a public high school football coach was constitutionally permitted to pray on the field after games, even though he’d held large-scale Christian prayer sessions with both teams and spectators on school property in his role as a public school employee. In its ruling, the court essentially discarded the use of the original intent of the Framers and declared that it would henceforth interpret the Establishment Clause in light of historical practices. This is horrendous. It means that the court will now look to what previous generations did, even if they got it wrong by misunderstanding the intent of the actual authors.
In the 19th and 20th centuries, atheists were commonly banned from testifying in federal and state courts, thereby being deprived of their constitutional right to testify, because of the widespread belief that only those who feared divine retribution could be trusted to tell the truth. Would the 21st century Supreme Court permit similarly egregious unconstitutional actions, just because such unjustifiable exclusionary policies were among the nation’s past practices?
In 2019, Justice Clarence Thomas invoked this prejudice when he said he doesn’t understand why atheists take oaths since they don’t believe in a divine enforcer. The question can be thrown back at him. Why do the conservative Christians he favors take oaths? They believe that once one is saved, salvation cannot be lost just by committing perjury. So, why do those believers have any more incentive to tell the truth than atheists? If practicing Catholics like Thomas commit perjury, they can merely go to confession to have their sin wiped away — just like going to traffic school clears one’s driving record. It is frightening that a Supreme Court justice harbors such an indefensible bias against nonbelievers. Would Thomas now vote to uphold a state law that would once again deny atheists the right to testify in court?
We atheists have never wanted greater rights than religious believers. We just want equal rights. There can never be actual church-state separation if the government is permitted to favor belief over non-belief. The most basic notions of equality and fairness would be seriously weakened if government could officially favor some people over others, based solely on what someone might believe about a supreme being.
Our nation will only fully achieve separation of church and state if, in the words of former Supreme Court Justice Sandra Day O’Connor, no branch of government can “treat people differently based on the God or gods they worship, or do not worship.” Equal rights for atheists is an indispensable part of the struggle to achieve equal rights for holders of all points of view on the subjects that religion addresses.
That is what true religious liberty requires.
Edward Tabash is a constitutional lawyer in Los Angeles. He is in his 29th year as a member of the Board of Trustees of Americans United for Separation of Church and State. He also chairs the Board of Directors of the Center for Inquiry, which advocates for secular humanism and scientific skepticism. He specializes in the historical and legal foundations of the First Amendment.