In a recent interview, Professor Nelson Tebbe discusses the main themes in his article, Nonbelievers, which was published in the Virginia Law Review. He sets out to answer the question: How should courts handle nonbelievers who bring religious freedom claims? “It’s an easy issue to state,” he says, “but it’s difficult to resolve because the religion clauses of the Constitution, along with other protections for religious freedom that are found in our state laws, speak in terms of ‘religion’ itself. They use the term ‘religion.’” As a result, he suggests that it’s not obvious whether atheists or secular humanists are included in religious freedom protections.
Some scholars and courts have suggested that nonbelievers always should be considered to be religious believers and others have said they never should be. However, Tebbe takes a position in the middle, arguing that nonbelievers sometimes should be treated like traditional believers. He addresses three areas of the law in the interview: the antidiscrimination rule, the exemption rule, and the ministerial exception.
Regarding the antidiscrimination rule, he explains that the government can’t discriminate against particular faiths or religious people as a whole. This rule, he argues, clearly applies to nonbelievers. Therefore, if a government were to discriminate against a nonbeliever, the nonbeliever would be protected under the Constitution. One rationale he argues is that there is a history of governmental discrimination against nonbelievers in American and world history. He offers the example of the many state constitutions that have traditionally prohibited nonbelievers from holding public office, some of which still exist in seven states. However, Tebbe argues that the Constitution invalidates such state laws.
Tebbe believes that the exemption rule within religious freedom law is less clearly applicable to nonbelievers. “Our law protects traditional believers against laws that don’t necessarily discriminate against nonbelievers but have the effect of prohibiting their belief,” he says. The classic example he cites is a drug law that prohibits Native Americans from using the hallucinogen peyote in sacred rituals. While there is no longer a constitutional provision that protects them, there are state laws that allow them to use the substance. Should that kind of extension be applied to nonbelievers? Tebbe argues yes.
There are situations Tebbe describes in the article that have occurred throughout American law where nonbelievers run afoul of general laws. In a prison context for example, he cites cases where nonbelievers wanted to wear symbols of their faith on necklaces. The question arose whether nonbelievers would receive an exemption for wearing them even though it went against general prison dress regulations. Tebbe argues that as a whole, nonbelievers should be protected by law to the extent that religious people are.
The final area of the law he addresses is the ministerial exception, which was recently approved by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC). This doctrine holds that when religious congregations are hiring clergy they have protection against employment discrimination rules; for example, Catholic churches are allowed to only hire men as priests, even though discriminating against women in employment is normally illegal. The question Tebbe asks is, “would it make sense to apply this rule to nonbelieving organizations? Do they have the right to discriminate when hiring their leaders?” He argues, no; in this case organizations of nonbelievers are more like secular voluntary associations than they are like recognizable congregations.
Tebbe concludes that the values that drive different rules within religious freedom law must be assessed to determine if religious freedom rules can be applied to nonbelievers.