America’s founding documents, read in their historical context and using standard originalist tools, support constitutional protection for atheism. Properly understood, the “freedom of religion” in the First Amendment is a species of a broader freedom of conscience, and that principle applies whether conscience leads someone to belief or to unbelief.
I. The Founding Texts and Their Structure
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The wording does two important things from an originalist perspective.
First, it is facially neutral among belief systems: it does not specify Christian religion, theism, or any specific doctrine. Second, it binds the federal government, not particular religious groups; the subject is what government may do, not what citizens must believe.
Originalism asks what the “original public meaning” of those words would have been to reasonably informed speakers at the time of ratification. On anyone’s account, “religion” in 1791 centrally referred to belief in and worship of a deity. But originalists also recognize that constitutional terms often embody broader principles—“speech,” “press,” “arms,” and “liberty” all had core examples and a penumbra of related applications. “Religion” is no different: the surrounding founding‑era materials show that the people who wrote and ratified the First Amendment understood it as protecting the liberty of conscience as such.
II. Founding‑Era Evidence: Religion as Conscience
Before the federal Bill of Rights, leading founders in state contexts articulated what they were trying to protect in more explicit terms.
James Madison, in his 1785 “Memorial and Remonstrance Against Religious Assessments,” argued against a Virginia proposal to tax citizens to support “teachers of the Christian religion.” He grounded his objection in a natural‑rights claim: religion is “the duty which we owe to our Creator and the manner of discharging it,” and this duty must be left entirely to the conviction and conscience of every individual. Civil society, he insisted, has no jurisdiction over that domain. Madison’s key concept is not “Christianity” but the independence of conscience from civil coercion.
Thomas Jefferson’s Virginia Statute for Religious Freedom (drafted 1777, enacted 1786) likewise declared that no one should be compelled to support religious worship or suffer civil penalties on account of “religious opinions.” Jefferson’s later description of that statute is especially revealing: he said it was intended to protect “the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.” That list is a kind of originalist gloss. “Infidel of every denomination” is 18th‑century language for those outside the recognized faiths, including skeptics and people who reject all religion. Jefferson understood his statute as a general guarantee for whatever a person’s conscience produced—including unbelief.
Madison, who steered that statute through the Virginia legislature and then led the drafting of the Bill of Rights, carried this same framework into the federal context. Early drafts of what became the First Amendment spoke not only of “religion” but of the “full and equal rights of conscience.” The final text shortened the wording but did not repudiate the theory; the debates and the state antecedents show that “religion” was being used as the concrete legal category for protecting the underlying moral right of conscience.
If the public meaning of “religion” in the Constitution is tethered to “liberty of conscience,” then the scope of protection should track the scope of conscience—not just its religious outcomes.
III. Originalist Method: Core Meaning and Principle
Originalism does not freeze every term at its most narrow dictionary gloss. Rather, it asks:
- What practices and ideas were at the core of the term’s public meaning?
- What broader principle did contemporaries associate with that term?
- How does that principle apply to circumstances and viewpoints that were known, even if unpopular, at the time?
The core of “religion” in 1791 was theistic belief and worship. The broader principle, as Madison and Jefferson described it, was that the government may not coerce or penalize a person’s judgment about ultimate questions of God, worship, or religious obligation. Atheists and skeptics unquestionably existed and were discussed, even if often negatively. That means unbelief was within the founders’ horizon; they made a conscious choice to protect the domain of conscience rather than to protect only approved answers within that domain.
On a principled originalism, once a right is identified as “freedom of conscience in matters of religion,” the government cannot constitutionally say: “Your conscience is protected if it tells you to be a Baptist, a Catholic, a Jew, or a Muslim, but not if it tells you to be an atheist.” That would be exactly the kind of official orthodoxy Madison warned against—government choosing which conclusions about ultimate matters are legitimate.
In other words, atheism is not “religion” in the theological sense; it is a stance within the field of religious conscience. The First Amendment protects that field, not only its traditionally religious points.
IV. Establishment Clause Logic: No Preference for Belief Over Unbelief
Originalism also looks at how clauses fit together. The Establishment Clause forbids any “law respecting an establishment of religion.” That language is broader than “no national church.” It prohibits laws that create or support an official religious orthodoxy or otherwise put government’s thumb on the scale in favor of religion as such.
If government could favor theistic belief over atheism—by conditioning office, benefits, or legal standing on belief in God—it would be “respecting an establishment of religion” in a straightforward way: using the machinery of the state to declare that religious belief is the norm and unbelief is a disfavored deviation. That is precisely what many states did before the founding, through religious tests for office and legal disabilities for “infidels.” The federal Constitution, by barring religious tests for federal office (Article VI) and by adopting the First Amendment, moved in the opposite direction.
From an originalist standpoint, you do not ask only whether the word “religion” in 1791 typically included atheism; you also ask whether government practices that punish atheism replicate the very evils the Establishment and Free Exercise Clauses were designed to prevent. Those evils—compulsory support for religion, penalties for heterodox belief, official religious tests—apply just as much when the target is unbelief as when it is a dissenting church.
V. Free Exercise Logic: Non‑Coercion of Conscience
The Free Exercise Clause prohibits laws “prohibiting the free exercise” of religion. In founding‑era terms, “exercise” meant not just ritual worship but living out one’s conscientious commitments in public and private life, so far as consistent with civil peace.
For a believer, free exercise protects the right to worship, to form religious associations, and to speak and live according to religious conviction. For an atheist, the parallel “exercise” is the right:
- Not to attend or support religious services.
- To speak and publish arguments against religion.
- To organize with like‑minded people on a secular or humanist basis.
- To live openly without professing a faith.
If the state punishes these atheist “exercises” precisely because they deny or reject religion, it is using legal coercion to force a particular set of conclusions about religion. On founding logic, that is as much an interference with free exercise as punishing a Quaker for refusing to swear an oath or a Baptist for refusing to pay tithes to an established church.
An originalist who takes the founders’ repeated reference to “rights of conscience” seriously should recognize that the right not to profess religious belief is the mirror image of the right to profess it. The Constitution protects both sides of that mirror.
VI. Answering the Narrow Linguistic Objection
The main originalist objection is: “The public meaning of ‘religion’ was theistic. Atheism is not religion. Therefore atheism is not covered.”
That argument assumes the Constitution protects “religions” as entities but not the underlying right that makes religion a matter of choice. Yet the founding‑era sources and early American political theory say exactly the opposite: churches and creeds are derivative; what is fundamental is the person’s duty and right to follow conscience in matters of religion.
Thus, an originalist analysis should proceed more carefully:
- Step 1: Identify the founding‑era evil: state coercion in religious matters.
- Step 2: Identify the right: freedom of conscience with respect to religious questions.
- Step 3: Identify the legal vehicle: the word “religion” in the First Amendment, understood against this background.
- Step 4: Apply that right neutrally to all conscience‑based positions about religion, whether theistic or atheistic.
Under that framework, the fact that “atheism” was not itself called a “religion” in 1791 is beside the point. The question is whether coercing or penalizing atheists is an infringement on the same freedom of conscience the founding generation meant to protect. Historically and philosophically, it is.
VII. Conclusion: Originalism for Atheists
On a principled originalism that respects both the text and the founding‑era theory of rights:
- The First Amendment’s religion clauses were designed to protect liberty of conscience in matters of religion.
- That liberty covers both the decision to embrace a religion and the decision to reject all religion.
- Government favoritism for religion over unbelief recreates the very kind of religious establishment the founding generation sought to prevent.
Therefore, an originalist reading does not undermine constitutional protection for atheism; it demands it. To deny protection to atheists simply because they fall on one end of the conscience spectrum would be to privilege certain answers to religious questions—precisely what the founding documents, rightly interpreted, forbid.
This article was researched and drafted with AI assistance and edited, directed, and verified by the author. All factual claims are sourced to the standard described in our Editorial Standards and Disclosure page.