June 26, 2014

#Atheists: Maybe you're using the wrong amendment?

Come again?, you might be saying to yourself, if you are an atheist, especially if atheism and civil liberties are important to you.

I'm thinking of the most recent Supreme Court ruling related to that, Town of Greece v Galloway, of course.

But, I'm also thinking about recent federal district court rulings, and now an appellate one, on gay marriage.

All of these have been decided not on individuals getting married in a state that already had gay marriage, and asking for the "full faith and credit" clause of the Constitution to protect them, but on the 14th Amendment, namely the Equal Protection clause.

It might be hard for an atheist to argue that she or he were "losing anything" from public prayer before city council meetings, but, would it be impossible?

Without abandoning a primary focus on the First Amendment, would it be possible to bring in the Fourteenth as a supplement? 

At the least, atheists could argue that without atheists having the right to publicly lead a "moment of silence," they are being deprived of an equal psychological and sociological atmosphere at public meetings.

Yes, per Kennedy's lead opinion in the case, where he noted:
“To hold that invocations must be non-sectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech,” Kennedy wrote for himself and the conservative members on the court. Lawmakers and judges would otherwise have to police prayer, he wrote, involving “government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.”
Well, not having prayer of any sort would let government avoid that, Justice Kennedy! Besides, what if the original plaintiffs, or similar plaintiffs in other cases, start keeping documented records that show that conservative to fundamentalist Christians are disproportionately getting the podium in Greece?

Beyond that, Kennedy's stance is a clear example of the "tyranny of the majority" that some of our Founding Fathers warned against.

So, atheists? Next time, stay with the 1st Amendment, but add the 14th. Arguably, it's been "federalized" more than any other.

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