With a bit more strength in numbers, non-believers are more boldly challenging conservative Christianity’s encroachment on U.S. law. And organized religion has handed them a weapon: Religious Freedom Restoration Acts, recently made infamous by Indiana and Arkansas. The acts are intended to protect Christians from serving gay couples and other potential nightmares, but conservative lawmakers may have overplayed their hand, passing laws that enshrine access to atheists, Satanists, Wiccans and others.
As one Wiccan leader recently said, “I think these bills are horrible, but if they are going to open up this can of worms, we are going to shove it right in their face.” Atheists (and Satanists and Wiccans) across the country are doing just that.
Michael Newdow, who unsuccessfully sued in 2005 to have “under god” removed from the Pledge of Allegiance at his daughter’s school, got new inspiration from the recent rash of Religious Freedom Restoration Acts. RFRAs prohibit the government from substantially burdening religion without a compelling interest, which supporters see as protecting pious Christians against substantially burdensome homosexual wedding cakes.
But Newdow argues it applies just as much to atheists, who are forced to handle money bearing “In God We Trust, “ which they certainly don’t.
“Imagine if Christians had to carry on their body something they disagree with religiously, like ‘Jesus is a lie’ — how long do you think that would stand?” Newdow told ThinkProgress. “But atheists are so denigrated in this society that people accept this without a second thought.”
“Under god” and “In god we trust” were both added during the midcentury red scare to ward off godless communists who apparently were thought to have a vampire/garlic relationship with deistic invocations. (“In god we trust” has actually existed on money since the Civil War, but became the nation’s motto in 1956.) Until now, challenges to the two phrases were made under the Establishment Clause; the arguments haven’t impressed judges, who don’t find the inclusion of “god” to be establishing a particular religion.
But the substantial burden/compelling interest test is a lower bar than the First Amendment. “There is obviously no compelling government interest in having ‘In god we trust’ on our money,” Newdow wrote. He plans to file in multiple state courts where RFRAs have passed. Though a similar tactic failed in 2013, Newdow believes the burden test has gotten looser since the Supreme Court’s Hobby Lobby decision, a major case in which the high court found in favor of religious objectors over the government’s compelling interest.
Newdow’s strategy depends on whether atheism is defined as a religion for the purposes of pluralism, or whether by opposing religion it sits beyond religion’s constitutionally enumerated protections. Whether atheism in fact counts as a religion is less than clear, and is being adjudicated on a case-by-case basis at the local level. Two recent conflicts—both, coincidentally, from the upper Midwest—have indicated a lean toward yes.
A judge recently fined the city of Warren, Michigan $100,000 for excluding an atheist from its nativity display, arguing the atheist’s freedom of religion had been violated. The city’s mayor had argued that atheism was the absence of religion and therefore was not covered.
“It has no tenets, no place of worship and no congregation,” Mayor James R Fouts said in March. “To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The city of Warren cannot allow this.” Apparently it can.
One month later, the city of Madison, Wisconsin voted “to add non-religion as a protected class” under its equal opportunity ordinances, the exact sort of ordinances targeted by RFRAs. “This is important because I believe it is only fair that if we protect religion, in all its varieties, we should also protect non-religion from discrimination,” one city council member said. (That the Freedom From Religion Foundation, one of the largest atheist groups in the country, hails from Madison probably didn’t hurt.)
‘Twas not always thus. In 2013, Freedom From Religion Foundation head Annie Laurie Gaylor found herself arguing to the IRS that atheisism wasn’t a religion, or at the very least not a church. Even more counter-intuitively, she did this to deny herself a tax break. Gaylor had sued over housing write-offs given to ministers since 1920, an allowance brought to public attention when the government cracked down on Saddleback pastor Rick Warren for abusing his. Gaylor had sought to eliminate it under the logic that it unfairly favored religion, only to have the U.S. government counter that the housing allowance could apply to her as the head of her organization.
In that scenario Gaylor didn’t want the tax break. “We are not ministers,” she said. “We are having to tell the government the obvious: We are not a church.” To everyone’s surprise, First Amendment experts sided with the government, encompassing atheists within the definition of religion—perhaps a handy precedent to have lying around now that RFRAs are all the rage.
Meanwhile, atheists even got an Oval Office name check. President Barack Obama has nodded to “non-believers” in his Religious Freedom Day address before, but in 2014 he outright included “atheists” in his remarks, giving the group at least an implicit executive endorsement. Legally, at least, atheists appear to be a religion whether they like it or not. This may be good news for Michael Newdow’s case.
The Satanic Temple’s theory that it could use Hobby Lobby decision to boot the government out of women’s healthcare decisions sounded half like trolling when it was first made last summer. But the Temple appeared serious this month when it announced that an anonymous member would sue the state of Missouri over its 72-hour waiting period for abortions, one of the longest in the nation.
The member in question lives hours away from the nearest abortion clinic and works for hourly wages, rendering two trips over three days apart next to impossible. This, of course, is the point of waiting periods, which serve to prevent working women from being able to avail themselves of the decreasing amount of clinics.
Mary (a pseudonym) told her doctor upon her first visit that the waiting period violates her beliefs. “I regard a waiting period as a state sanctioned attempt to discourage abortion by instilling an unnecessary burden as part of the process to obtain this legal medical procedure,” Mary’s statement read, per an interview with the Riverfront Times. “The waiting period interferes with the inviolability of my body and thereby imposes an unwanted and substantial burden on my sincerely held religious beliefs.” When the doctor denied the procedure, the Satanic Temple filed suit against the state.
Legally, the Satanic Temple appears to be on shakier ground than atheists. According to one law professor, it’s unlikely that a court would recognize a substantial burden under an RFRA rather than long-decided privacy cases that already apply to abortion (and that nonetheless have been toothless against clearly burdensome laws like 72-hour waiting periods).
Nonetheless, the Temple believes the suit will undermine the logic of religious freedom laws.
“No matter the outcome, however, we feel that the Satanic Temple has already done much to reframe the ongoing debate regarding Religious Liberty, its uses and limits,” the Temple’s leader wrote in an op-ed. “Suddenly gone are the days in which Religious Privilege seemed to exist to the benefit of a single creed. All at once, the all-too-numerous flagrant theocrats holding public office across the nation are made to sullenly realize that Religious Liberty isn’t theirs alone. Hail Satan.”
Meanwhile, the Satanic Temple also successfully messed with a Florida school’s Religious Freedom Day last January, effectively scaring the school into canceling the event after it proposed handing out Satanic coloring books. The day had previously been used to hand out free Bibles, before the Freedom From Religious Foundation sued to include non-believer materials.
“We would never seek to establish a precedent of disseminating our religious materials in public schools because we believe our constitutional values are better served by respecting a strong separation of Church and State,” the Satanic Temple’s spokesdemon said. “However, if a public school board is going to allow religious pamphlets and full Bibles to be distributed to students — as is the case in Orange County, Florida — we think the responsible thing to do is to ensure that these students are given access to a variety of differing religious opinions.”
The Orlando school district balked, and materials both believer and otherwise remained undistributed.
This is one of several examples of Satanists taking advantage of religious freedom rulings. As Mother Jones pointed out, a Supreme Court decision last year allowing city council meetings to open with prayers has created a pentagram-shaped loophole for Satanists to erect statues and enact services in public places. Detroit Satanists countered a nativity scene with a Snaketivity Scene; Oklahoma Satanists proposed a Satanic statue to counter the Ten Commandments tablet erected on state capitol grounds; and some opportunistic pagans have opened city council meetings with invocations like the following: “Powers of Air! We invoke and call you/Golden Eagle of the Dawn, Star-seeker, Whirlwind.”