Canary in the constitutional coal mine: Nicole Pepperl

On May 6, 2010, I celebrated my own personal National Day of Blasphemy with a glass of wine, a bit of swearing and a particularly dirty joke about a Catholic priest. In other words, it was just an average day.

But the reason for my blasphemy was of greater consequence than my usual irreverence, because on that day President Obama had proclaimed a National Day of Prayer, reminding atheists in America that we may be tolerated, but we are less important than religious citizens.

On its own, one proclamation seems a relatively minor matter, but the National Day of Prayer plays into a larger pattern of religious endorsements that undermines the constitutional protections guaranteed by the First Amendment. As an atheist and a law student, I care about the topic on both personal and intellectual grounds, but every person who values the Constitution would be wise to pay attention to the issue. Keeping “God” out of government is not just an effort to protect the rights of nonbelievers. It is a necessity for protecting all groups from the unrestrained whims of the majority.

My approach to understanding constitutional rights is simple: If you want to examine the true extent of a freedom, you must look to the level of protection extended to controversial topics and despised groups. A strong First Amendment is not really necessary to protect people who proclaim that apple pie is delicious because no one is attempting to silence the pro-apple pie movement.

On the other hand, freedom of speech is essential to protect flag-burners precisely because their actions offend so many. It should come as no surprise then that the most important barometer for religious freedom is the legal status of atheists. The example of the National Day of Prayer indicates how precarious these protections can be, but also demonstrates how courts have slowly come to better protect our rights.

The Day of Prayer is often controversial, and this year was no exception after the Freedom From Religion Foundation filed its lawsuit arguing that the proclamation was an unconstitutional endorsement of religion. The judge agreed, but delayed the injunction until the inevitable appeals process was completed.

If the government doesn’t endorse any god, then we don’t have to worry about it picking the wrong one.

Under this cloud of constitutional questionability, the president issued his proclamation. I was disappointed, especially given Obama’s experience as a constitutional law professor, but I understood the political calculus. Given the substantial minorities who believe Obama is a Muslim, refusing to issue the proclamation would only solidify their irrational fears. In fact, it could lead his detractors to conclude he belongs to the one group more feared than Muslims: atheists. But in pandering to the religious at the expense of nonbelievers, Obama chose to continue a tradition of religious infringement that undermines the First Amendment.

Perhaps it would be worth giving up a few rights if prayer really could achieve miracles, but modern presidents rarely ask for more than generic blessings and guidance. Previous presidents had much loftier goals. For example, Abraham Lincoln proclaimed April 30, 1863, to be a “day of national humiliation, fasting and prayer” with the hopes that sufficient levels of devotions would achieve “the restoration of our now divided and suffering Country, to its former happy condition of unity and peace.” The prayer and fasting proved so successful the Civil War ended after a mere 709 more days of death and destruction.

Then Lincoln was assassinated.

Religious encroachments

Like many religiously motivated laws, the statute requiring a National Day of Prayer dates to the 1950s, a time of religious encroachment stemming from years of fears about “Godless communists.” In a span of four years, “In God We Trust” became the national motto, “under God” was added to the Pledge of Allegiance and the president began the tradition of an annual National Prayer Breakfast.

An official National Day of Prayer intruded first in 1952. Of course, Americans already had the freedom to pray any day of the year, in any manner of their choosing, thanks to the First Amendment. “If the government were interested only in acknowledging the role of religion in America, it could have designated a ‘National Day of Religious Freedom,’ rather than promote a particular religious practice,” noted Judge Barbara Crabb in her ruling.

The law’s real goal seems clear: to mix religion with politics to protect Christianity’s position of power.

By advocating for a particular religious practice, the Day of Prayer effectively supports that practice at at the expense of other viewpoints. As Judge Crabb succinctly noted, a National Day of Prayer is no more constitutionally permissible than a National Day of Blasphemy would be. If atheists became a majority and tried to implement a day when “the people of the United States may turn to blasphemy to express their freedom from religious superstitions,” it would be just as unconstitutional.

In theory, the Constitution protects the minority from majority whims, regardless of who is in charge. That can be easier said than done.

Cases where courts have upheld minority rights in the face of strong political sentiment — cases such as Brown v. Board of Education or Loving v. Virginia — proved controversial at the time of the decisions, but are now celebrated as great examples of justice. I have no doubt that atheists will follow the same well-worn path, and that our successes will also be honored in time and recognized as victories not just for atheists, but for the underlying constitutional principles themselves.

The best legal arguments in the National Day of Prayer case are on the Foundation’s side, but I would not venture to predict how the appeals process will turn out. Perhaps a Supreme Court with six Catholic justices and three Jewish justices will look back to the recent past when their own religions suffered extensive discrimination and rule wisely. Perhaps not.

What I do know is that if the Day of Prayer loses its governmental endorsement, private religion will step in to fill the gap. This is the way it should be. The religious will be free to proclaim the wonders of prayer, nonbelievers will continue to point out its complete lack of efficacy, and the government will remain neutral. Believers who claim their rights have been infringed will be completely missing the point — loss of government endorsement does not hinder their freedom to engage in whatever religious practices they choose. It will only feel like punishment because they have grown accustomed to undeserved benefits for so long.

When it comes to religious freedom, nonbelievers are the canary in the coal mine because we are the first to have our rights violated. Yet believers should be wary of thinking that infringement will stop with atheists. Government “under God” may start with a nonsectarian Abrahamic God, but it can easily progress to a Protestant God and then to an evangelical God. Government neutrality neatly sidesteps the entire issue. If the government doesn’t endorse any god, then we don’t have to worry about it picking the wrong one.

As nonbelievers continue to grow in numbers and gain political power, I hope we always remember what it is like to be in our current position and use that knowledge to fight for the constitutional rights of all. Because what I have learned from this case is this: The rights of the whole are only as strong as those of the most reviled minority.

Speaking as an atheist in America, I have two words for the rest of the country to take to heart: chirp, chirp.

Nicole Pepperl, 23, was born in Lincoln, Neb. She graduated from Stanford University with a B.S. and an M.S. in earth systems. She is a second-year student at Harvard Law School and plans to practice environmental law. She received $2,000 for her winning essay from FFRF.

Freedom From Religion Foundation