A federal court recently ruled that “Secular Humanism is a religion for Establishment Clause purposes.” The reactions ranged from “this is a huge win for humanists” to “oh shit, this provides ammunition to the other side.” But libertarian legal scholar Ilya Somin points out that atheism and humanism were already protected under anti-discrimination laws:
From an Establishment Clause standpoint, it does not matter whether Secular Humanism is a “religion” in any deep philosophical sense, but only that it entails beliefs about religion. The key question is not whether Secular Humanism is a religion, but whether equal treatment of Secular Humanists is a component of nondiscrimination on the basis of religious belief. The answer to that latter question is yes. Even if Secular Humanism is not a religion, it clearly entails rejection of commonly accepted religious commitments (such as belief in various gods and other supernatural forces). Discriminatory treatment of people who reject these types of religious beliefs is discrimination on the basis of religion in much the same way as discrimination against people who refuse to support any political party or ideology is discrimination on the basis of political belief. As the district court decision points out, Supreme Court precedent has long held that the Establishment Clause forbids discrimination in favor of religion against irreligion, as well as in favor of one religion over others.
The Supreme Court briefly referred to Secular Humanism as a religion “which do not teach what would generally be considered a belief in the existence of God” in the 1961 case of Torcaso v. Watkins. But, as in the recent district court case, the result in Torcaso did not depend on whether Secular Humanism qualifies as a religion or not. As Justice Hugo Black put it in his opinion for the Court, “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” Thus, it makes no difference whether a law discriminating in favor of theists against atheists or secular humanists qualifies as favoring religion over non-religion or favoring one religion over others…
Be that as it may, the same legal principles that protect Secular Humanists and conventional religious believers also protect atheists. In my view, atheism is not a religion in the conventional sense of the word. I think this is also true of most, though possibly not all, variants of Secular Humanism. But, as far as the Establishment Clause of the First Amendment is concerned, it does not matter whether atheism, Secular Humanism, or any other belief system that takes positions on religious issues is actually a “religion” or not. People who reject religion, or are simply indifferent to it, can still be discriminated on the basis of their beliefs about religious questions or lack thereof.
This is an important point. Federal law does not prohibit discrimination against religious people, it prohibits discrimination on the basis of religious belief.