The separation of church and state requires a government to be neutral in matters of religion. Such a government does not enact laws that are either overtly or historically traceable to concepts grounded only in religious beliefs, without any independent empirical verification. For those of us who are devoted to attaining this legal ideal, Justice Ruth Bader Ginsburg’s death is tragic.

There has never been any rational basis for laws that automatically presume that men should have more rights than women. Until recently in human history, laws that deprived women of equal rights were prevalent in the overwhelming majority of societies. One of the traditional foundations for much of this was Genesis 3:16, in which Jehovah tells women that their husbands should rule over them. The first case that Ginsburg argued before the Supreme Court was Frontiero v. Richardson, 411 U.S. 677, 691 (1973). Here, she persuaded the Court to strike down by an 8 to 1 vote a military regulation that allowed male service members to claim their wives as dependents automatically but required female service members to offer proof that their husbands were financially dependent on them.

In Edwards v. Healy, 421 U.S. 772, 773 (1975), Ginsburg argued that a Louisiana law was unconstitutional because it automatically allowed men to serve on juries but required women to file a declaration stating their intent to be a juror before being allowed to serve. The justices remanded the case to the lower court because by the time it reached the Supreme Court, Louisiana had apparently done away with this prejudicial requirement.

President Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia in 1980. She served there until President Bill Clinton appointed her to the Supreme Court in 1993. She achieved legendary status for her support of government neutrality in matters of religion, a principle under which we nonbelievers have no fewer rights than religious adherents. The following three cases are just a sampling of her valiant efforts to try to stop the unconstitutional special privileging of religion.

When the Supreme Court ruled 5 to 4 in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), that for-profit private businesses owned by religious believers who object to contraception may refuse to comply with the Affordable Care Act’s (ACA) requirement that employers provide employees with insurance coverage for contraception, Ginsburg dissented. She pointed out the dangers of allowing religious objectors to avoid complying with laws otherwise applicable to everyone when the result is harm to third parties, such as employees denied contraceptive coverage (p. 2787).

She also pointed out that if employers with religious objections to any number of potential medical devices, medicines, or medical treatments are permitted to refuse to provide health insurance coverage that allows their employees to obtain these things, those employers will be imposing their religious views on their employees (p. 2804). She rightfully asked if there is a limit to the scope of what employers may do or withhold as a result of their religious beliefs. Ginsburg expressed the concern that religious owners of a health club serving the general public—a business with no religious purpose—could refuse to hire a young, single woman working without her father’s consent (Id). She was also concerned that the majority opinion from which she was now dissenting could extend to allowing a Jehovah’s Witness employer to refuse to provide employees with health insurance that would cover blood transfusions (p. 2805). She was similarly worried that a Christian Science employer would now be permitted to deny employees insurance coverage that would cover vaccines (Id). Ginsburg was right to warn about the possible extent of danger if religious employers are given such open-ended permission to essentially impose their religious views on their employees.

In American Legion v. American Humanist Association, 139 S.Ct. 2067 (2019), the Court ruled by a shocking 7 to 2 majority that a Latin cross, placed on public property in Maryland in 1918 to commemorate local members of the armed forced who died in World War I, was constitutionally permissible. This was based on an assertion, among other claims, that over time otherwise religious symbols “can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots” (p. 2084). With the defection of two justices who are usually reliable church-state separationists, Stephen Breyer and Elena Kagan, Ginsburg wrote a powerful dissent in which Justice Sonia Sotomayor joined. She began by reminding everyone of the core concept of the Establishment Clause of the First Amendment: Government must always be neutral “among religious faiths, and between religion and nonreligion” (p. 2104). Ginsburg rejected the majority’s concept that there is a “presumption of constitutionality for longstanding monuments, symbols, and practices” (Id). To her and Sotomayor, if the display of a religious symbol on public property is unconstitutional, its violation of the First Amendment is not diminished just because it has been there for a hundred years. Something that is inherently unconstitutional does not become constitutional just because it has been in place for a lengthy period.

Ginsburg dismissed the majority’s claim that this particular cross has become a secular war memorial, over the years, rather than still being a sectarian religious symbol. She wrote that the presence of this cross on public property “elevates Christianity over other faiths, and religion over nonreligion” (Id). She further wrote that “when a cross is placed on public property, the government may be presumed to endorse its religious content” (p. 2106). She then explains that “For nearly two millennia,” the Latin cross has been the “‘defining symbol’ of Christianity” (p. 2107). She then writes that a Latin cross is an “exclusively Christian symbol” and is not “emblematic of any other faith” (Id).

It’s so fitting and poignant that her final written opinion was a dissent that she composed to try to protect the separation of church and state, including women’s access to cost-free contraception through the health care insurance policies provided by their employers, as required by the ACA. The Trump administration expanded the scope of permissible employer religious-based exemptions from the contraceptive mandate, beyond what was addressed in Burwell v. Hobby Lobby, supra. The new Department of Health and Human Services (HHS) regulations allowed any employer to be exempt from having to provide such insurance coverage under the ACA, based on no more than that employer’s ethical or religious objections to any form of contraception. Pennsylvania, later joined by New Jersey, challenged these new regulations as violating the Administrative Procedures Act (APA). In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, et al., 140 S.Ct. 2367 (2020), the Court ruled that the involved federal agencies had the authority to expand employers’ exemptions under the ACA and didn’t violate the APA in doing so.

The majority opinion said: “We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections” (p. 2373). None of the unexpectedly high number of justices in the majority of this 7 to 2 opinion even addressed the problems inherent in allowing employers the right to impose their religious views on their employees. Ginsburg addressed this issue in her dissent, in which Sotomayor joined.

Ginsburg opened by reminding the majority that in addressing religious freedom claims, the Court “does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs” (p. 2400). She then pointedly addressed the core of the problem with the majority opinion. “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree” (Id). She further wrote that the government many not “jettison an arrangement that promotes women workers’ well-being” and “instead, defer entirely to employers’ religious beliefs,” particularly if that accommodation “harms women who do not share those beliefs” (p. 2403–2404).

She was one of two justices who never forgot that government neutrality in matters of religion is violated whenever religious objectors are permitted to avoid complying with an otherwise generally applicable law, especially when that noncompliance harms innocent third parties.

As I write this, in early October 2020, President Donald Trump has nominated an ardent religious-right-wing judge to replace Ginsburg. Sadly, it appears at this time that he has enough votes in the Senate to get his nominee confirmed, even before the November 3 election. If, for any reason, a vote by the full Senate has not yet taken place on this nomination by the time this article is published, we must all contact both of our United States senators and implore them to vote against confirming Amy Coney Barrett to the Court. We have to do this even if the odds are against us.

We atheists will tell people that while there is no individual life after death, society’s memory of someone may be everlasting if we never forget their contributions to making the world a better place. In this sense, let us keep alive and make immortal the legacy of Ruth Bader Ginsburg.