Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 13)

Q:: Where does that leave atheists and other non-religious/non-theistic traditions?  Is atheism considered a "religion" unto itself for legal purposes in the SCOTUS in the past?

In general, atheism is assumed to be a system of belief that is comparable to, and held in high regard, the same way theists hold their religion in high regard.  There are very few cases that get to the SCOTUS that deal with atheism at all.  They tend to be resolved [prior to reaching the SCOTUS].

[I have edited this section for clarity concerning the Silverman case.]

The example Lynn cites involved Herb Silverman, who in 1992 applied and was rejected to become a notary public in South Carolina.  The issue, an 1868 clause in the S. Carolina Constitution, "No person who denies the existence of the Supreme Being shall hold any office under this Constitution."

It was shown, in a lower court ruling, that of 30,000 applications only Silverman's was rejected.  According to the State's attorney Brad Waring,

Silverman's application was rejected because it lacked the correct number of signatures, and because he had crossed-out the word 'God' from the constitutionally required oath of office.

"If the word protect, preserve or defend had been struck from the application, the result would have been exactly the same," Waring told the court. "There was no religious discrimination in this case, and there was no evidence presented of it."

The ACLU, who represented Silverman, contended that of those 30,000 applications the only one rejected was Silverman's; a devout atheist.  In the opinion of the Court, Circuit Judge Thomas Hughston Jr. ruled that South Carolina did indeed violate the First Amendment, by requiring a religious test to hold public office.

The case eventually found it way to the state Supreme Court, where in 1997 "the court's five justices unanimously agreed that the requirement violates the U.S. Constitution and upheld a lower court ruling in the case of a College of Charleton professor."

Returning to Lynn's comments.

There are some justices, I think Scalia in general and Thomas (although he doesn't say much about,,, he doesn't say much about anything), but Scalia has suggested that maybe atheists don't have the same rights as religious people.  And that their ideological position is not one you can bring into court using the same kind of First Amendment arguments that a Catholic or a Methodist might use.
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 From 2008,,,

Speaking over the past weekend at the annual dinner of an Orthodox Jewish group, Agudath Israel of America, U.S. Supreme Court Justice Antonin Scalia claimed that the Establishment Clause of the First Amendment should not be construed to forbid government from favoring “religion over nonreligion.” Justice Scalia has made this point before, both on and off the bench, and he may be correct when he says, as he did before Agudath Israel, that such a prohibition “does not . . . represent the American tradition,” but only if one excludes from that tradition the last forty years of Supreme Court jurisprudence.

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So far, luckily,  that view is in the minority but I think we have to be very cautious about this idea.  That the religious freedoms, so to speak, of people ONLY rolls to people who have theological views and not to those who have considered and rejected those views.