Divine justice and the wall – Hilary K. McKinney

FFRF awarded Hilary $2,000 for her first-place essay.

One of the fundamental goals of the Constitution of the United States is to protect minorities from the tyranny of the majority. “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,” wrote Justice Robert Jackson in a 1943 U.S. Supreme Court decision.

The protections inherent in the Establishment and Free Exercise Clauses are supposed to ensure that the religious and the nonreligious are treated equally. Judges and legislators are not allowed to “count heads before enforcing the First Amendment.”

But today, we find them doing just that. Certain judges and elected officials ignore the established principles that the government must not promote one religion over another or promote religion over nonreligion. We are governed by a Constitution that champions minority rights, but somehow the religious majority keeps getting their way.

One shocking example of majoritarian politics hit particularly close to home for me in November 2010. Politicians succeeded in convincing voters that it was necessary to amend our Oklahoma Constitution to prevent Islamic law from being applied in our courts. It passed with over 70% of the votes.

I’m sure we can all agree that no religious law should be judicially enforced in the U.S. But in a state where less than half of 1% of the population is Muslim, this law is much more a statement of who “belongs” in Oklahoma than one addressing a serious legal concern.

We are made to feel like outsiders in our own courthouses.

Like the Muslim population of Oklahoma, atheists know that it is a constant struggle to fight discrimination and to keep our rights from being trampled by politicians. It is not outrageous to suggest that, as the most mistrusted demographic group in America, atheists could be the next target of hateful anti-minority legislation in Oklahoma and elsewhere.

And when we are, will we encounter a judicial system that dutifully upholds the tenets of the First Amendment, or one that places more value in the archaic beliefs of the majority?

Even for judges who defend atheists’ constitutional rights, there is always a chance that no one is listening. At football games and graduation ceremonies across the country, for example, public school employees encourage student-led prayer and ostracize students who object. Judges in many courts still require addicts to attend Alcoholics Anonymous, a counseling program with faith-based components.

Suggesting that people avert their eyes from courthouse Ten Commandments monuments should not be the Supreme Court’s answer to separation of church and state. Upholding taxpayer-funded government grants for “secular” activities of tax-exempt religious institutions should not be the response to the mandates of the Establishment Clause. So why have many plaintiffs been unable to win their cases in the Supreme Court? Part of the reason is the court’s composition, including one justice in particular: Antonin G. Scalia.

Originalist sin

Since his appointment in 1986, Justice Scalia has never once written or joined an opinion that found a government authority in violation of the Establishment Clause. He has called public prayer a “unifying mechanism” that should not be discouraged because of any potential “inconvenience” to nonbelievers. By taking this approach, he fails to see that it is not the “inconven-ience” of government-sponsored pray­er that we take issue with; it is a matter of being excluded from an aspect of civic participation.

His message to nonbelievers is similar to Oklahoma’s message to Muslims. In essence, he is saying that because we will not pray when the rest of society does, we do not belong in that part of civic life. We are made to feel like outsiders in our own courthouses, our own city council meetings, our own high school graduations.

Scalia’s answer to that assertion would most likely be that “leaving accommodation [of religion] to the political process will place at a disadvantage those religious practices that are not widely engaged in” and that this is an “unavoidable consequence of democratic government.”

That gem of democratic philosophy comes from a man who believes that the religious environment of 1791 (the year the First Amendment was adopted) should serve as a model for what can and cannot be reasonably considered constitutional. Now, more than 200 years after adoption of the Bill of Rights, we have seen our nation achieve what we consider to be great hallmarks of our democratic institutions, including the end of slavery and the establishment of universal suffrage. Would Scalia forsake all of those monumental and positive changes to maintain the ideology of an era that couldn’t fathom the invention of the telephone?

If Scalia continues to insist on consulting only those points of view held by the nation’s founders, he should at the very least remember that the tyranny of the majority was a major concern for constitutional framers like James Madison. Scalia is not the only justice responsible for chipping away at the wall of separation, but he is the most outspoken.

His position threatens the separation of church and state, and the consequences of his viewpoint are frequently reflected in the court’s decisions. Scalia’s strict originalist interpretation of the Constitution and his unbending support of majoritarian interests are inconsistent with democratic ideals. They are not conducive to adequate governance of our diverse and dynamic society.

The Supreme Court is supposed to uphold the Constitution despite the personal political opinions of the justices. The institution is our last line of defense against political attacks and misguided legislation that serves religious interests.

When the court is unwilling to stand up for the First Amendment rights of atheists, we are in danger of losing the faith that we have placed in the U.S. judicial system.


Hilary McKinney, 25, born and raised in Denison, Texas, is a third-year law student at the University of Tulsa College of Law and a 2007 graduate from Trinity University with a bachelor’s in anthropology and Latin American studies. She spent a year volunteering with AmeriCorps on an Arizona Indian reservation. She’s president of the UT Native American Law Students Association and completed a U.S. State Department internship in Washington, D.C., working on Colombian foreign policy and human rights issues. Hilary was featured in FFRF’s “Out of the Closet” billboard campaign in Tulsa in June. Her interests include activities with the Atheist Community of Tulsa, traveling, cooking Indian food with her boyfriend and playing with their two cats.

Freedom From Religion Foundation