Secular movement has never been identity-oriented
Ever notice that you almost never see the terms "equal rights" and "atheists" in the same sentence? Let me explain why.
Imagine a public high school with a serious discrimination problem, an institution with attitudes and practices about race, gender, and religion that are terribly outdated. Three students have decided they've had enough, and each sues to fight back against the unfair prejudice.
George, an African-American, has been excluded from the school's marching band because the band director is racist and will only let white kids participate. Lisa, an excellent math student, was denied membership in the school's math club because the teacher running the club feels that girls are naturally unfit for the field of mathematics. Tony, an atheist, is upset because his history teacher aggressively proselytizes Christianity, leading the class in a prayer each day and always encouraging the teens to "find Jesus."
As these three plaintiffs proceed through the courts to enforce their rights, we can learn much about the unique status of atheists in American society. George and Lisa, suing based on racial discrimination and gender discrimination respectively, will center their cases on basic principles of equal protection. Under the Fourteenth Amendment, no state or local government may deny citizens equal protection under law, and via this constitutional avenue minorities and women have successfully sought recourse against governmental discrimination.
Tony's case, however, will be much different. Tony will almost certainly base his lawsuit on the First Amendment's Establishment Clause, arguing that the injection of religion into his classroom violates important church-state separation principles. The Establishment Clause approach, bypassing the equal protection arguments utilized by most minorities, is reflexively used by most aggrieved atheist-humanist litigants objecting to governmental religiosity. Though rarely questioned, this stategy of downplaying equality arguments in favor of the Establishment Clause has had far-reaching consequences.
When George brings his racial discrimination claim, nobody will ask him to justify his case by showing that the founding fathers would have supported the notion of racial equality. As we all know, many of the founders owned slaves, and the concept of full equality for African-Americans would have seemed preposterous to most of them. Similarly, nobody will ask Lisa to justify her lawsuit by showing that the framers would have supported equality for women, because of course in the late eighteenth century the idea of full rights for women would have been viewed as radical. Indeed, the concept of equal protection—providing recourse through the courts to protect minority groups from discrimination—is very much a modern notion.
Tony, however, in bringing his Establishment Clause claim, will almost certainly be asked to demonstrate that the founding fathers would view his claim favorably. When any plaintiff brings an Establishment Clause case, questions of "the intent of the founders" will inevitably arise. Parties will always be asked: What would Adams, Jefferson, and Madison think of this claim? Rarely raised, however, is the simple but important question of whether the governmental action discriminates against a minority group.
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