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Can Atheism be Legal?

May 4th, 2010 | 3 min read

By Andrew Walker

Aside from its free-verse eccentricity and its spiteful, disrespectful tone (referring to any theistic belief simply as “religious hocus pocus”), Marc Cooper’s opinion column in today's L.A. Times is, well, misleading. And I say this not solely on the basis of my Christian faith, but the far-reaching implications and assertions Cooper dispenses. Titled “To Replace John Paul Stevens, an Atheist” Cooper argues that, based upon demographic representation in the United States, the age has dawned where the Supreme Court’s newest justice ought to be an atheist.

But sheer representation isn’t all that Cooper is after. There’s more. Underlying his position is the belief that an increased secular court would signal a shift to a more mature, “modern” style of jurisprudence, which he assumes would propel America into greater secularity: “Having an atheist justice, however, would not primarily be a matter of identity politics and some sort of equal representation. Rather, a nonbeliever justice would be a mighty blow in favor of the secular principles of ‘reason and freedom’ of which Jefferson spoke.”

Ignoring the fact that moral philosophy has long posited the need for a transcendent being in which to ground morality, and by logical conclusion—laws, Cooper seems satisfied enough to ingratiate himself both with ethical and Constitutional ignorance.

The rest of Cooper’s article is a caustic jeremiad lamenting the influence that religion has played in American political discourse. Yet, Cooper’s wants and desires seem to simply miss the American religious mood, not to mention proper interpretation of the Constitution.

Cooper’s main support is to call upon Thomas Jefferson, the famed president who, in a letter to the Danbury Baptists, argued for the now infamous “Separation of Church and State.” Yet, ideas contained within letters do not bear complete meaning upon the Constitution’s intent. Moreover, the Constitution is not Jefferson’s sole creation. It had multiple authors.

A look at the First Amendment reveals that the Constitution simply prohibits a government-controlled religious institution. It makes no mention of the impact religion ought to have on personal or societal reflection. Nor does it exclude the influence of religion upon politics. It simply provides a buffer between church and state.

The First Amendment states,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As the Founding Fathers understood, the documents of the United States are written for a people who assume some form of dogma. Consider John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” I state this not to baptize the intents of the Framers of the Constitution as evangelical Christians (most were not), but to present the case that religious belief is constitutive of American public life, jurisprudence not being excluded. It only follows that if the original framing documents of the Unites States presupposed some form of natural religion, then ours laws most likely do too.

Am I absolutely opposed to there being an atheist Supreme Court justice? No. My beliefs on religious liberty (or, more appropriately stated in this instance, irreligious liberty) are stated merely to serve the premise that the presence of such an individual lies far outside the spectrum of what most Americans believe.

Cooper’s Constitutional rendering is simply incorrect and a facile mistake made by secularists. Aside from reading more deeply into the First Amendment, Cooper assumes to believe that Americans will eventually reason, reflect, and postulate with pure reason void of any religious influence. This is nothing but a rehashed Kantian divide.

My main point: To actually assert that a seat at the highest court of the land be reserved for an atheist is complete non-sense. It’s the same as asserting, in my belief, that the next Supreme Court justice ought strictly be a baseball fan. Demographic representation for an unelected seat bypasses the basis on which Supreme Court justices ought to be nominated: Sound legal reasoning in the pursuit of public justice.

I’m fine with Cooper’s speech. He’s entitled to it. But, I’ll take my First Amendment right and state that Cooper is also wrong.

Andrew Walker

Andrew T. Walker is an Associate Professor of Christian Ethics at The Southern Baptist Theological Seminary.