University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2012 Nonbelievers and Government Speech Caroline Mala Corbin University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the First Amendment Commons, and the Law and Society Commons Recommended Citation Caroline Mala Corbin, Nonbelievers and Government Speech, 97 Iowa L. Rev. 347 (2012). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. Nonbelievers and Government Speech CarolineMala Corbin* ABSTRACT: In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination. This Article argues that government religious speech such as "In God We Trust" or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the main goals of the Establishment Clause is to protect religious minorities like nonbelievers. Contrary to claims that government religious speech is essentially harmless and that any offense it causes should not be considered of constitutional dimension, government religious speech harms both the equality and liberty of nonbelievers. It undermines the equality of nonbelievers by sending the message that they are not worthy of equal regard and by reinforcing stereotypes-in particular, that atheists are immoral and unpatriotic-whichleads to discriminationagainst them. The perpetuation of these stereotypes also undermines the liberty of nonbelievers by making them less willing, or even afraid, to follow the dictates of their conscience. In short, the claim that government religious speech does not violate the Establishment Clause because it only offends nonbelievers misunderstandsexactly what is at stake. * Associate Professor of Law, University of Miami School of Law; B.A., Harvard University; J.D., Columbia Law School. I would like to thank Joseph Blocher, Beth Burkstrand- Reid, Aaron Caplan, Anthony Colangelo, Mary Coombs, Charlton Copeland, Mike Doff, Steven B. Epstein, Michael Froomkin, Abner Greene, Leslie C. Griffin, Rachelle Holmes, Hoi Kong, Helen Louise Norton, Tali Schaefer, Nelson Tebbe, Frank Valdez, and Jonathan Witmar-Rich for tremendously useful comments. I would also like to thank the participants of the Annual Law & Religion Roundtable, the Case Western Law Review Symposium on Government Speech, the Vanderbilt University Law School Faculty Workshop, and the Cornell Constitutional Law & Theory Colloquium. Finally, thanks to Barbara Brandon, Colleen Del Casino, and Michael Holt for excellent research assistance, and to Michael Cheah for impeccable editing. IOWA LAW REVIEW [Vol. 97:347 I. INTRODUCTIO N ...................................................................................... 349 II. NONBELIEVERS AND THE ESTABLISHMENT CLAUSE ............................... 352 A. THE RISE OFNONBELIVERS ............................................................. 352 i. Different Types of Nonbelievers ........................................... 352 2. Growth of Nonbelievers ......................................................... 353 3. Discrimination Against Nonbelievers ................................... 357 4- Persistent Distrust of Nonbelievers ....................................... 363 B. PERSONAL STORIES OFNONBELIEVERS ............................................... 369 i. A Story of Political Exclusion ................................................ 369 2. A Story of Social Ostracism .................................................... 370 3. Stories of H iding .................................................................... 372 C. PURPOSES OF THE ESTABLISHMENT CLA USE ....................................... 375 III. THE EQUALITY COMPONENT OF THE ESTABLISHMENT CLAUSE ............. 378 A. EXPRESSIVIST HARM TO EQUALITY ................................................. 380 1. Social Meaning as a Constitutional Injury ............................ 382 2. Determination of Social Meaning ......................................... 385 a. Messages of Inequality?....................................................... 386 b. Religious Messages at All? .................................................. 388 B. MATERIAL HARM TO EQUALITY ........................................................ 392 1. Perpetuating Discrimination ................................................. 392 2. Attributing Discrimination to the State ................................ 394 3. How Government Religious Speech Perpetuates Stereotypes .............................................................................. 398 IV. THE LIBERTY COMPONENT OF THE ESTABLISHMENT CLAUSE ............... 400 A. HARM TO CONS CI E ..................................................................... 401 B. HARM FROM COERCIVE GoERNMENT RELIGIOUS SPEECH.................. 403 C. HARM FROM PASSIVE GOVERNMENT DISPLAYS ................................... 405 D. BALANCING GOVERNMENT INTERESTS AND HARMS To NONBELIEVERS ............................................................................. 48 V . CO NCLUSIO N ......................................................................................... 4 15 2012] NONBELIEVERS AMD GOVERNMENT SPEECH I. INTRODUCTION "Don't Believe in God? You Are Not Alone." This was only one of dozens of atheist slogans on buses, trains, and billboards this past year.' Atheism's visibility in the United States is on the rise. Books by atheists whose goal is to debunk religion have become bestsellers.- Organizations for nonbelievers are growing by leaps and bounds. Recent surveys show that the number of Americans who identify themselves as not belonging to any religion has doubled in the past twenty years.3 President Obama even acknowledged nonbelievers in his inaugural address.4 At the same time, nonbelievers still make up a small minority in the United States, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many atheists are hesitant to reveal their religious views, and those who do risk discrimination and attack. After all, the United States continues to be a deeply religious nation, and much of American culture is steeped in religion, from our pledge declaring that we are one nation "under God," to our national motto proclaiming "In God We Trust," to our war memorials in the form of Latin crosses.5 Where does the Establishment Clause, which reads "Congress shall make no law respecting an establishment of religion," 6 fit into this picture? On the most general level, the Establishment Clause has been interpreted to bar the state from favoring one or some religions over others and from favoring religion over nonreligion. But what does this mean for nonbelievers? What protection in particular should the Establishment Clause provide for them? The Establishment Clause was adopted to prevent several problematic consequences that often followed state establishment of religion. First, because civil strife, and even religious wars, tend to ensue whenever the state favors one religion over others, the Establishment Clause protects the stability of the civil society.7 Second, the Establishment Clause protects the established religion from the corruption and degradation that so often accompany alliance or involvement with the state.8 Finally, the Establishment Clause protects those who do not share the established religion's beliefs, as persecution or discrimination may, and historically usually did, follow when the state prefers one religion over others.9 1. See infra notes 53-66 and accompanying text. 2. See infra notes 34-42 and accompanying text. 3. See infra text accompanying notes 27-33. 4. See infra note 51. 5. See Salazar v. Buono, 13o S. Ct. 1803 (2010); Trunk v. City of San Diego, 629 F. 3 d 1O99 (9 th Cir. 201 1). 6. U.S. CONST. amend. I. 7. See infra notes 207-09 and accompanying text. 8. See infra notes 210-12 and accompanying text. 9. See infra notes 213-15 and accompanying text. IOWA LAWPREVIEW [Vol. 97:347 This Article focuses on the last goal-protecting those who do not belong to the favored religion. It does not argue that this is the Establishment Clause's most important goal, though it is the one most in keeping with the countermajoritarian spirit of the Bill of Rights. Rather, it provides theoretical justifications for why and how the Establishment Clause protects religious minorities and, in particular, nonbelievers. Nonbelievers include all those who do not profess belief in a religion. Thus, the term encompasses those who describe themselves as atheist, humanist, secular, or ethical culture.l° Although few would deny that that the Establishment Clause protects those without religious beliefs, there is great disagreement about the scope of that protection. This Article argues that the Establishment Clause should be understood as protecting both the equality and religious