Why should we care about the definition of religion?

Transcription

1 Summary of Kitzmiller s Error: Using an Exclusive rather than Inclusive Definition of Religion, Liberty University Law Review, pp , Vol. 3, No. 2 (Spring 2009) By John Calvert, J.D. June 22, 2010 Why should we care about the definition of religion? Kitzmiller s Error analyzes the controversy over teaching origins in a public school. In doing so it necessarily addresses a more fundamental question: What is religion? The question is important for the Constitution permits only limited intrusion by the public school into the religious sphere: [T]he Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact. [Gillette v. U.S., 401 U.S. 437, 450 (1971)] The meaning of religion is also critical because it determines the meaning of secular. This is because secular means not religious. Thus the scope of the secular sphere arises by default, based on the scope of the religious sphere. It is critically important for Government to know the boundaries of the secular sphere for it generally may promote ideas and activities without restraint in that sphere, but not in the religious sphere. Indeed, it must have a secular purpose to even enter the religious sphere. How can one know if its purpose is secular if one does not know the meaning of religion? One may imagine the spheres in two dimensions as two concentric circles, like those shown in the diagram on the last page of this summary. The center circle defines the subject matter of the religious sphere. Everything else naturally falls by default into the outer secular sphere. The public school can operate freely within the outer secular sphere. However, if it crosses the line and enters into the religious sphere it must have a secular or nonreligious purpose for doing so and its activities within that sphere must be evenhanded in operation, and neutral in primary impact. Thus, it must be non-discriminatory. It can t favor one religion over another. But when does the state confront the boundary between the two spheres? The answer turns on the subject matter included within the definition of religion. The limits of that subject matter mark the boundaries between the two spheres. Notice, as the scope of the religious sphere increases, the scope of the secular sphere decreases. This is illustrated by the diagram. As a consequence, the legal scope of the subject matter of religion has a profound effect on the scope of government and individual freedom. When religion is narrowly defined the secular and governmental spheres are enormous. When defined comprehensively government power and authority shrinks. Currently there are two general definitions of religion in use the popular and the legal. The popular narrow definition confines the subject matter of religion to belief in God to theistic religion. It is illustrated on the left in the diagram on the back. In the last sixty years the Supreme Court and other courts have recognized that a number of non-theistic belief systems function in the lives of their adherents in the same manner as traditional theism functions in the lives of its adherents. To ensure that the First Amendment satisfies its non-discriminatory purpose the courts have recognized that these functional equivalents are just as religious as the views of traditional theists. Hence the courts have embraced an inclusive definition that is not confined to just belief in God, but rather includes beliefs about God and other matters of ultimate concern. This was explained by the Supreme Court in a 1992 opinion holding that government cannot prefer theistic over nontheistic religion, and that the settled law is that the Clause applies to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker [Lee v. Weisman, 1992] The Court has also recognized that Secular Humanism is a non-theistic religion. According to the Humanist Manifesto, adherents to the faith include Atheists, Freethinkers, Agnostics, Skeptics, Deists, and other liberal religions. Although the boundary between the religious and secular have not been defined with absolute precision, the cases, taken as a whole, indicate generally that religion is an organized set of beliefs about the cause, nature and purpose of life. It is a belief system that profoundly relates the life of man to the world in which he lives [McGowan v. Maryland, 1961]. Traditional theists relate life to the world through a creator of both while non-

2 theists view life as simply arising from the world without the guiding hand of an intervening Deity. The legal inclusive definition is illustrated in the concentric circles on the right in the diagram on the back. Kitzmiller v. Dover Area School District (W.D. Penn 2005) illustrates the importance of the definition of religion. In that case Judge John Jones used the popular rather than legal definition of religion in assessing the religious effect of a new school policy on teaching origins. The Policy was to advise students of gaps/problems in Darwin s theory and of other theories of evolution, including, but not limited to intelligent design. According to the Court this ID Policy caused the state to enter the religious sphere and thereby endorse religion, defined as just belief in God or the supernatural. The Article shows that if Judge Jones had employed the legal definition previously employed by the Supreme Court and his Third Circuit peers, the result would have been different. He and his hypothetical objective observer would have immediately recognized that the school had already entered the religious sphere when it chose to discuss with students religious subject matter - the cause of life and how life is related to the world in which it is lived. Furthermore, since the existing curriculum permitted students to be shown only a materialistic natural cause explanation of that relationship, it was not evenhanded in operation, and neutral in primary impact. Given these existing circumstances, the court should have found that the ID Policy was not only legal, but also necessary to permit the state to continue to address that religiously charged subject in a manner that was evenhanded in operation, and neutral in primary impact. The scope of religion is not only important to the teaching of evolution and origins. The legal definition of religion includes other matters of ultimate concern, such as the nature and purpose of life. This should cause schools to carefully consider the objectivity of other curriculum that addresses how life should be lived and how it relates to the world. What are schools saying about ethics, history, human sexuality, morality and the sanctity of life? Ultimately, the definition is important to human freedom. As the scope of the religious sphere increases the scope of the secular and governmental spheres will decrease. As governmental intrusion decreases human freedom generally increases. The primary effect of the comprehensive definition is that it forces open-minded critical thinking about religious subject matter. It causes competing views about matters of ultimate concern to be put on the same level playing field. In contrast, any narrow definition puts the competing views into two separate leagues, one that may be supported by government and one that must be shunned. This destroys the possibility of open-minded critical thinking and is inherently discriminatory. Due to that discriminatory effect it is inconsistent with the very purpose of the Establishment Clause. Current misuse of the popular definition induces government to promote the goal of Atheists to remove God from all publicly supported places That misuse is subtly converting secular institutions into religious ones that promote non-theistic religions. Our public institutions need to embrace inclusion in a pluralistic culture, not exclusion. We need a healthy competition between the wisdom of those who believe in God and the wisdom of those who don t. To this end we need to embrace the law that provides a single non-discriminatory class for all of these competing views called religion. Other Definitions (Section II) The article contends that confusion is caused not only by the incorrect definition of religion, but also by other key concepts notoriously ill-defined. Accordingly, it includes a thorough analysis of other key terms and concepts, including science, secular, natural and intelligent causes, evolution, intelligent design, naturalism/materialism, and methodological naturalism. Instead of definitive definitions, the analyses identify key concepts properly included or excluded from the term. It ends with an application of those definitions to the ruling of the Kitzmiller Court. The author is a lawyer and a geologist who retired from 32 years of private practice in business litigation and corporate finance in 2000 to devote the last ten years to constitutional ways to teach origins in public schools. He is Managing Director of Intelligent Design network, inc, a non-profit that seeks institutional objectivity in origins science. Natural/Material Cause and Intelligent Cause (Section II.A.). The definitions start with a definition of natural cause, which is also known as a material cause. The definition is critical as Kitzmiller ruled that students may only be shown natural cause explanations of origins and no intelligent cause explanation. 2

3 Briefly, a natural or material cause is a cause attributable to the random interactions of matter, energy and the forces, per laws such as the laws of motion and thermodynamics. Natural causes adequately explain wind, rain, mountains and snowflakes. However, they are challenged to explain the origin of matter, energy and the forces themselves and the origin of life and the biological information that runs life. The simplest form of life is a selfreplicating micro information processing system defined by sophisticated codes and programs precisely integrated to generate, maintain and duplicate life at precise times in precise places in three-dimensional space. We can witness the formation of rocks via natural causes without a mind, but we have never witnessed undirected forces selforganize chemicals into an information processing system. An intelligent cause is one attributable to a mind or some form of intelligence that has manipulated matter, energy and the forces for a future purpose. Intelligently caused patterns include bird s nests, beaver s dams and computers. Intelligence is ubiquitous to the natural world as it inheres not only in humans but also in birds and other organisms. Scientific programs actually scan the far reaches of the universe in search of extraterrestrial or alien intelligence and coroners look for evidence that a death may have been the product of an intelligent rather than a natural or accidental cause. Naturally caused patterns produced without a mind lack inherent purpose while designs produced by a mind have purpose. Thus, naturally caused patterns are occurrences, while intelligently caused patterns are designs. So, the ultimate question is whether we are a design having inherent purpose or just an occurrence that lacks one. Naturalism/Materialism (Section II.B.). After defining natural and intelligent causes, the article turns to the definition of naturalism which is synonymous with materialism. Naturalism/Materialism holds that life, the world and the cosmos are adequately explained by natural or material causes only and not by any intelligent cause. For the materialists, minds come from matter, not another mind. Hence, for the materialist, life is an occurrence that lacks inherent purpose for purpose only comes from a mind. Materialism/naturalism is the core tenet of non-theistic religions like Atheism and Secular Humanism and marginal theistic religions like Deism or Theistic Evolution. The idea that life is the creation of mind rather than matter is the core tenet of traditional theistic religions. Evolution and Intelligent Design (Section II.C.). Thirteen pages of the article are devoted to a description of the competing claims of intelligent design and evolution. Patient thought and knowledge of basic math and science will aid understanding of this complex subject. Evolution falls into three categories: Cosmological evolution, chemical evolution and biological evolution. All three are materialistic theories of origins that seek to explain the evolution of the Universe (cosmological evolution), the origin of life (chemical evolution) and the origin of the diversity of life (biological evolution) using only natural causes. The article shows all three ideas amount to historical narratives that rest on evidence, faith and doctrine. Faith and doctrine is particularly necessary in the case of cosmological evolution and chemical evolution. Biological evolution assumes the truth of faith-based cosmological and chemical evolution. It then argues that random variations in replicating organisms produced via chemical evolution adequately account for the apparent design of all living organisms. However, major controversy exists with respect to the adequacy of biological evolution to account for large increases in bio diversity, such as that evidenced by bio-systems and machines that appear irreducibly complex. The article shows that biologists uniformly recognize that living systems look like they have been designed by a mind for a purpose. Biologists typically describe bio-systems with language employed by human software designers to describe human designed information processing systems. Biological operating systems consist of coded messages that are copied edited, error checked and ultimately translated into a variety of tools and machines that are used to construct, operate and maintain information processing networks that run cellular systems that comprise life. The operating system embedded in the genome of the oldest form of life has been compared to the less efficient and robust Linux operating system. As explained by one evolutionary biologist, the challenge for evolutionary biologists is to explain how seemingly well designed features of organism, where the fit of function to biological structure and organization often seems superb, is achieved without a sentient Designer. Although life looks created by a designer, the basic claim of evolutionary biology is that the apparent design of life is like the rising sun, just an illusion, explained by undirected chemical necessity and chance. At its core, intelligent design is a respectful dissent to the materialist s claim of illusion. 3

4 Although chemical necessity explains the illusion of design exhibited by an exquisite snowflake, it does not explain the lengthy coded sequences of the four genetic letters that define the memory, operating systems and application programs that generate, operate and maintain life. This is because the order of the genetic letters in the gene sequences, just like the order of the letters in this sentence or in a computer program, is not chemically or physically necessary or determined. Like dots and dashes sent over a telegraph wire, the four genetic letters or symbols used to carry the messages of life can occupy any position on the sugar-phosphate backbone to which they are attached. Since the order of the sequence that defines life cannot be explained by chemistry, all of the heavy lifting of natural cause explanations is left by default to chance random variations like random mutations. The inherent problem with the plausibility of chance, even with billions of years of evolutionary history, is that probability decreases exponentially as the complexity or number of letters needed to specify the message increases only incrementally. Because of the exponential decrease in probability, the time needed to run enough trial events to expect a specified event to occur by chance increases at an exponential rate. Very quickly evolution runs out of time, even for a single gene. For example, take a simple combination lock. If it has a dial with only four set points and it has to be turned twice to the correct number to open the lock then only 4 x 2 or 8 trials are needed to expect the lock to be opened by chance: Probability = 8 trials/4x2 possible outcomes = 1. However, if the dial has 100 set points and it must be turned correctly five times in a row, then 100x100x100x100x100 or ten billion trials are needed (P=100 5 trials/100 5 possible outcomes = 1). A safe cracker without dynamite simply does not have enough time during the evening when the staff is gone to do ten billion five-step trials to open the safe by chance. Natural cause advocates waive their hands and say evolution has billions of years and therefore chance is a reasonable explanation. ID advocates say Stop waiving your hands. Do the math. It doesn t work. An old universe is not necessarily helpful because, like the safe cracker, integrated events must often occur within narrow time frames to produce function. But even assuming one had all of the time and opportunity provided by a universe a billion times 20 billion years old, one would still not have enough opportunity to plausibly account for the sequence of genetic letters in a simple 900 letter gene by chance. Like the combination lock, there are four alternatives at each position in the message carried by the gene A, C, T and G. This means that to unlock the safe or make a specific 900 letter gene needed for function a dial consisting of 4 set points must be turned 900 times correctly in sequence, thereby requiring or step-trials. How many trials are possible in our billion times 20 billion year old universe? Hold on to your seats. Only ! When is divided by the probability of the correct gene sequence happening once by chance in the entire universe since the big bang is 1/10 390, a number which quickly rounds to zero. This is just for one gene. The human genome is 3 billion genetic letters long, not 900. Billions of years do not seem enough for mindless matter to get the job done by chance. Indeed, the math suggests that any novel gene sequence greater than 250 bases cannot be expected to arise by chance within the known universe, even given billions of years of evolution. Similarly, one would never expect a winner at a lottery where the winning number is 250 digits long. Lotteries must use short sequences to expect a winner. The materialist argues, again waving his hand, that natural selection reduces the odds, thereby making the claim of illusion plausible. One problem is the lack of any serious statistical calculations that might confirm the assertion, otherwise based on hand waiving. The second is that natural selection only operates positively in very limited circumstances. Natural selection does not operate until replicating life has commenced. This is an event that apparently requires, as a minimum, two or three hundred genes and a system that captures, converts and directs energy to cause the genes to be expressed in the right order, at the right time and in the right place. After life starts, a replicating population does not save a new gene configuration until it functionally aids survival of the organism. To generate new function that will aid survival many new novel genes and messages may be required, each requiring many additional set points on the dial and turns of the knob to achieve function the opining of the safe or the production of a new machine like a bacterial flagellum. Until the function is achieved natural selection, which abhors energy wasting activities, acts like a saboteur or policeman. It catches the safecracker and eliminates him before he has finished the job. The article discusses briefly other bases for ID dissent to the claim of illusion. In the author s view the inherent conceptual problem with the materialistic narrative is that living systems are all forward looking. Not only do they look designed, they actually use directed energy to do things at specified times in the future. Thus the components of life actually contemplate or point to future events that natural causes, lacking a mind, cannot comprehend or foresee. Only a mind or some kind of intelligence has foresight. Lacking foresight or a minds 4

5 eye, it is difficult to conceive how matter, energy and the forces that naturally move to a state of disorder can simply result in a system like a biological clock that functions for a future event that only a mind can contemplate. So, one may ask, if the claim of illusion is not supported, why hasn t it been abandoned by science? The answer lies in an exclusive definition of religion which has led science to embrace a doctrine called methodological naturalism (MN) which appears below and in Section VI. MN as applied to the origin and nature of life essentially functions as a non-theistic religious doctrine used by modern institutions of science that requires one to assume the claim of illusion to be true, regardless of the evidence. Per MN only natural causes can explain the cause of life, hence the claim of illusion must be true. So, at its core the claim of illusion is supported by doctrine, not evidence. With MN, the weight of the evidence of design is irrelevant, as it is not allowed. MN is like telling the corner to go to the scene of a death and report only a natural or accidental cause for the event. The Meaning of the Word Religion (Section III). The 41 page section on the meaning of religion first explores the roots of religion, with that focus primarily on the origin of non-theistic religions like Atheism and Secular Humanism. The history traces at least back to the fifth century BC when Democritus argued that all things, including life, can be reduced to different kinds of atoms just matter. Epicurus and Lucretius, followers of Democritus argued that over time matter would naturally evolve into life via circumstances of chance and necessity. Aristotle, Socrates and Plato disagreed. They argued that patterns resulting from random processes do not reflect the kind of craftsmanship evidenced by fine furniture or the human eye. Epicurus disagreed, since any thing can happen by chance in an infinite universe. And the universe is infinite because something cannot come from nothing. Epicurus and Lucretius took this materialistic origins narrative and used it as the basis for a new functional religion called Epicureanism. It argued that the Gods, if they exist, are irrelevant as they did not make life that ends with death. This religious belief system put man at the center of the universe rather than God and made the pursuit of happiness and the avoidance of pain or disturbance the goal of life. Luke chronicles a debate between the apostle Paul and the Epicureans in the first century AD in Acts 17. In 1933 John Dewey and his followers published the first Humanist Manifesto. It proclaimed the birth of a new religion. But, actually it was a rebirth of Epicureanism under the name Religious Humanism. It declares that the universe is self existing, that life arises from unguided evolutionary processes and that humans should turn away from traditional theistic religions and turn to naturalistic science and reason as the true path for life. It is a religion designed to transform, control and direct all associations and institutions, including public schools and religious institutions. Following the proclamation of this rebirth of an old religion, the Supreme Court held in 1948 that religion could not be taught in a state school. Subsequently Religious Humanists began to cast Religious Humanism as secular rather than religious. Thus, the new label Secular Humanism. The labeling has not dissuaded courts from finding it a religion, and the religious classification has been recognized by the Supreme Court in a number of cases. Part III. B. of the article then turns to a discussion of the importance of the word religion in the First Amendment. After the fine-tuning effected by the 14 th Amendment, the religion clauses in the First Amendment essentially provide that a governmental agency (including a public school) may not adopt a policy respecting an establishment of religion, or abridging the free exercise thereof. The Article points out that although the First Amendment benefits religion by permitting it to be freely exercised, it disadvantages religion by excluding it from government support. Thus, if one wishes to have government support a particular viewpoint it must necessarily be classified as secular rather than religious. Non-theistic religions have recognized this disadvantageous constitutional effect. They have sought to avoid it in a number of ways. One is to argue for a dual definition of religion. Atheists claim that religion should be given an inclusive definition for free exercise purposes but a narrow God only exclusive definition for establishment clause purposes. In this way the state can promote the views of Atheists and Secular Humanists in public schools but not interfere with their worship in Universal Unitarian Churches. The dual definition was soundly put to rest by Judge Adams in Malnak v Yogi (1979) and other cases which have held that the Establishment Clause applies to theistic [and] nontheistic religion. Otherwise the First Amendment would be inherently discriminatory with respect to competing functionally equivalent viewpoints. The article then argues that the meaning of religion in the First Amendment has not changed since the enactment of the Bill of Rights. Rather, what has changed is the mix of religious beliefs. The population of the US 5

6 has evolved from a nearly uniform belief in God to one that includes a wide variety of both theistic and non-theistic belief systems due to immigration and the scientific revolution. Three hundred years ago Atheists were burnt at the stake. Today they give altar calls to standing room only crowds at major Universities. Recent studies show that only 70% of the US population believe in a personal God. Another change affecting religion has been the extension in the 1940 s of the burdens of the Establishment Clause to the states via the 14 th Amendment. Previously the religion clauses were not particularly important as they were only applicable to Congress and Congress then had a relatively narrow agenda. As a consequence the states and local governments could and did support and promote particular religions. However, in 1948 the Supreme Court told public schools that they could no longer support religious viewpoints, as the Church and State must remain separate [McCollum v. Board of Education (1948)]. In the context of a narrow definition of religion this encouraged a non-theistic educational community to ban God from a place he had always occupied the formation of the religious beliefs of Children in schools. The ban created a religious vacuum that is now being filled with the non-theistic religious perspectives of Atheists and Secular Humanists. This is consistent with surveys showing a significant erosion of theistic beliefs within the age group. The growth of non-theistic religions in the US has been documented in a number of recent surveys. Nontheists account for 30% of those in the 15 to 29 age group and ninety percent or more of the National Academy of Sciences. Mainstream theistic denominations like the Episcopalians, Methodists and Presbyterians are rapidly losing members as they have embraced non-theistic views that conflict with scriptures. Experts in England predict traditional Church-going will decline by seventy-eight percent by A 2008 survey by Trinity College shows that less than 70% of the US believe in a personal God that intervenes in the natural world. This decline in Theistic belief is not producing a decline in religion defined inclusively. Rather it is merely producing a shift in the religious mix between non-theists and traditional theists. The issue addressed by Kitzmiller s Error is whether government will aid the non-theists in promoting this religious change in the culture. Summary of the Cases (Section III.B.3 p ) The article devotes 31 pages to a chronological analysis of key cases that define the scope of the religious sphere. A brief description of each is shown at the end of this summary. The groundbreaking case is the 1957 California Court of Appeals case of Fellowship of Humanity v. County of Alameda. After the 1933 publication of the Humanist Manifesto by John Dewey and others, followers began to organize Religious Humanist churches and infiltrate existing theistic churches. By the mid 1950 s fourteen Humanist Churches had been established in Oakland, CA. However, they were denied property tax exemptions, because the country claimed the property was not used exclusively for religious worship. This was because the churches did not worship a God or supernatural power. On appeal, Judge Peters held that Secular Humanism was a religion even though it did not postulate a God. This was because the belief system functioned in the lives of its adherents in the same way that traditional recognized religions function in the lives of their adherents. Since, Judge Peter s conclusion expanded the scope of the definition of religion, he offered a set of parameters that would set more specific boundaries for the religious sphere: Religion simply includes: (1) a belief, not necessarily referring to supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organization within the cult designed to observe the tenets of the belief. A month later the DC Circuit Court of appeals issued a similar ruling in favor of a Secular Humanist Church in Washington D.C., called the Washington Ethical Society [Washington Ethical Society v. District of Columbia (DC Cir. 1957)] In 1961 the Supreme Court twice addressed the question of whether disbelief in God was religious. In one case Atheists complained about Sunday closing laws arguing that it offended their religious beliefs. The court upheld the laws because they did not deal with religious subject matter. They simply provided a day of rest for both Theists and Atheists. In reaching this result the Court described the religious sphere in the comprehensive sense in which the Constitution uses that word [a]s an aspect of human thought and action which profoundly relates the life of man to the world in which he lives. In so doing the Court recognized that the Establishment Clause withdraws from the secular sphere man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief. [McGowan v. Maryland, 366 U.S. 420 (1961)] 6

7 A few months latter the Court included within the religious sphere religions based on a belief in the existence of God as [well as] those religions founded on different beliefs. Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. [Torcaso v. Watson, 367 U.S. 488 (1961)] Following McGowan and Torcaso, the Supreme Court addressed the scope of religion in deciding whether conscientious objectors who did not have a belief in a Supreme Being qualified for a religious exemption. In deciding the case the court expanded the popular definition of religion by embracing the functional definition enunciated by Judge Peters in Fellowship of Humanity: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of traditional theists is religious. Within [the phrase religious training and belief ] would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. Over 250 sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace. [United States v. Seeger, 380 U.S. 163 (1965).] Five years later the Court decided a similar case involving a conscientious objector who did not even classify his beliefs as religious (Welsh v. US, 1970). The opinion recognizes that it is not uncommon for people to fail to understand the broad scope of religion. [V]ery few registrants are fully aware of the broad scope of the word "religious" as used in 6 (j), and accordingly a registrant's statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption. Misunderstanding about the definition of religion is not limited to conscientious objectors. Scientists, school administrators, lawyers and even judges commonly make that mistake. One of the most important cases dealing with the definition of religion is Malnak v. Yogi, a Third Circuit case decided in Judge Adams was asked to classify a public school course in Transcendental Meditation (TCM) as religion, and therefore a violation of the Establishment Clause. The promoters of the course argued that it was science, not religion, as it did not promote belief in God. However, Adams, in reliance on, Fellowship, Seeger, Welsh, and Torcaso, found TCM to be religious even though it did not posit a God. It was religious because it addressed fundamental and ultimate questions having to do with deep and imponderable matters. A crucial aspect of the opinion deals with the motivations of people to choose or not choose a religious classification. If religious rights are being abridged, the classification can be helpful. However, the classification is a detriment if the activity involves some measure of government support. In Malnak the defendants sought to classify TCM as science rather than religion so that it could be taught in a public school. Appellants do not consider SCI/TM to be a religion. But the question of the definition of religion for first amendment purposes is one for the courts, and is not controlled by the subjective perceptions of believers. Supporters of new belief systems may not choose to be non-religious, particularly in the establishment clause context. There is some indication that SCI/TM has attempted a transformation from a religion to a secular science in order to gain access to the public schools. Two years after deciding Malnak, Judge Adams declined to include within the religious sphere, beliefs about diet [Africa v. Commonwealth of Penn. (3 rd Cir 1981)] because matters of diet do not address matters of ultimate concern. In discussing the boundaries of the religious sphere, he noted that even if a teaching deals with a religious subject, it may still be discussed in a public forum if it is treated objectively. In 1987 a Federal district court subjected Secular Humanism to an extensive trial that involved the testimony and writings of numerous expert witnesses (Smith v. Board of School Commissioners of Mobile County). It held that religion is an organized set of beliefs about the cause, nature and purpose of life and the universe, and that Secular Humanism fits that definition. It also adduced evidence showing that Secular Humanism is a religion that (a) promotes the core tenets of Atheism, (b) seeks to replace traditional theistic religion in all institutions, (c) is embraced by organized Humanist Churches like the Universal Unitarian Church as well as a vast number of nominal humanists in the United States and the world, and (d) is a dominant, moral and religious point of view among intellectuals and educated classes, though they may not be aware of the fact that they are 7

8 humanist[.] On appeal the 11 th Circuit did not reverse Judge Hand s conclusion that Secular Humanism is a religion, rather it held that the Court failed to make an adequate showing that the text books in question promoted that religion in a manner inconsistent with the Establishment Clause. Atheists have been compelled in a number of cases to acknowledge their beliefs to be religious. To have standing to sue for an injunction against a nativity scene, the Ten Commandments or the reference to God in the Pledge, Atheists have had to argue that the displays offend their religious beliefs. The courts, including the Supreme Court, have agreed. The issue was put squarely before the Supreme Court in 1992 in Lee v. Weisman. Proponents of a high school graduation prayer argued it was constitutional as it did not refer to any particular God and was therefor nonpreferential and neutral as to all religious beliefs. This argument assumed that religion was confined to only beliefs in God. In holding for complaining Atheists, the Supreme Court found the prayer was preferential as it preferred theistic religions over nontheistic religions. Justice O Connor, Souter and Stevens explained in a concurring opinion that [A] nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government's preference for theistic over nontheistic religion is constitutional. The settled law is that the Clause applies to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker Freethinkers are essentially Secular Humanists. Based on the decisions of the Supreme Court, the Seventh Circuit held Atheism to be an Establishment Clause religion in the 2005 case of Kaufmann v. McCaughtry. In 2008 the EEOC embraced the inclusive definition of religion in a compliance manual for use in Title VII cases involving religious discrimination in the work place. In addition to Atheism, the courts have found a variety of other traditional and non-traditional belief systems to qualify as religions, to include Buddhism, Taoism, Wicca and Scientology. The effect of including non-theistic beliefs is an increase in the subject matter and scope of the religious sphere and a reduction in the scope of the secular/governmental sphere. Government intrusion into the religious sphere to achieve non-religious ends is permitted only to achieve a secular purpose and only if the primary effect of the intrusion is religiously neutral. The entire concept of religious neutrality is dramatically changed with the inclusive definition. If religion is limited to belief in God, then removing God from the money achieves a religiously neutral effect. However, when the religions that oppose God are included in the mix, a removal of God from the money is not neutral. Rather that act has the effect of promoting Atheism over Theism. Worldview and Religion. Many use the term world view as a means of placing competing religious views in the same class so that they may fairly compete on a level playing field. The problem is the First Amendment uses the word religion rather than worldview. Accordingly, if the competing worldviews are not both placed within the religious sphere, then a fair competition cannot be expected. The defining character of science is objectivity, not orthodoxy (Section V) Many have tried to demarcate science and religion based on subject matter. Science studies the natural world, while religion seeks to provide answers to the ultimate metaphysical questions of life such as the origin, nature and purpose of life. However, modern science has strayed into all of these areas formerly reserved to religion. Given the overlapping subject matter, the defining characteristic of science that distinguishes it from religion, is objectivity. Science is necessarily objective while religion is necessarily orthodox. Given this profound distinction, the inclusive definition of religion is actually necessary to keep science objective and inherently different from religion. If religion is limited to theistic positions on the cause, nature and purpose of life, then an exclusion of religion from science entails an exclusion of the idea that mind rather than matter may be its cause. Once this exclusion is effected, then science must close its mind to a possible intelligent cause and thereby embrace the core tenet of Atheism that life derives from matter rather than mind. This then renders science orthodox rather than objective as to the ultimate religious questions the cause and nature of life. Since the orthodoxy provides an answer to the ultimate religious question, it functions as a religious orthodoxy that causes science to become religious rather than objective. 8

9 The opposite occurs when science excludes religion defined inclusively. That exclusion effectively requires science to be objective rather than orthodox when it addresses religious subject matter such as the cause, nature and purpose of life. Not only does it open the mind of science to competing possibilities, it also enables science to acknowledge that it actually does not know the answer to those ultimate questions. Thus the objectivity required by the inclusive definition causes science to be functionally secular rather than functionally religious. It opens rather than closes the mind of science and precludes it from being atheistic or theistic. Science and religion may then cooperate rather than compete, with science being a detective like a Sergeant Friday rather than a Priest of non-theistic religion. Methodological Naturalism functions as a religious orthodoxy in origins science (Section VI) The orthodoxy imported into science by use of an exclusive definition of religion is called "Methodological Naturalism or Scientific Materialism ( MN ). MN is an irrefutable assumption that life has arisen only via natural or material causes and not by any intelligent cause. Thus, it requires a scientist to accept the core tenet of Atheism, even if she doesn t believe it. This renders science functionally religious. As just discussed, the popular exclusive definition of religion effectively locks MN into science. One of the merits of Kitzmiller, is that it makes perfectly clear that as to the ultimate of ultimate questions - Where do we come from? --, science and science education have embraced MN. Thus, there is no longer any quibbling about whether the orthodoxy actually exists. It is there and was used by Judge Jones to prohibit a public school from showing students gaps in the materialistic foundations of the orthodoxy in a science class. The fifteen page discussion focuses primarily on the institutional use of MN in origins science. MN as a presumption has clear utility in many areas of operational science. When seeking the cause of an apple falling from a tree, it is reasonable to assume a natural cause given our intersubjectively accessible knowledge of gravity and wind. However, the assumption is not reasonable if we ask a different question where does the apple and its ancestors come from? Much of the data necessary to answer that historical question has been lost to time and is not intersubjectively accessible. If natural cause is the only permitted answer, then science has closed its mind to other and unknown possibilities and embraced an atheistic orthodoxy. The article explains the many reasons MN is actually counter productive in origins science. Its stated purpose to exclude the supernatural is religious, not secular. The dogma frustrates, rather than advances scientific testing of explanations, it is contrary to the scientific method which seeks to open, rather than close minds, it is used irrefutably only in science that addresses the ultimate religious questions Where do we come from?--, and as a doctrine that must be employed, it is far more problematic than philosophical naturalism, which is merely a belief that one may choose to reject. The article also details many instances showing that MN is promoted with the kind of organized religious zeal typical of all religions. MN is promoted with a false dichotomy that there are only two responses possible to the question of origins natural or supernatural cause. Since science cannot entertain the supernatural, it has no choice but to embrace the natural. This is a false dichotomy because there is a third response cause unknown. Cause unknown is the explanation given by the coroner when the data is insufficient to declare a natural or intelligent cause for a death. In origins science we do not know the cause of the big bang, the cause of life, the cause of the genetic codes that are at the root of the operating systems that run life, or the cause of major increases in the diversity of life. MN precludes the I don t know response and thereby demands that science side with the Atheist in answering the ultimate question of life Where do we come from? The Error Using the Incorrect Definition of Religion (Sections VII and VIII) The question for the Kitzmiller Court was whether a public school may adopt an ID Policy that students will be shown gaps in materialistic evolutionary explanations of the origin of life as well as a reference to a book in the school library that explains an alternative idea that apparent design of life may not be an illusion. In deciding the question Judge Jones applied the exclusive discriminatory definition of religion, which excludes non-theistic religions like Atheism and Secular Humanism. For Judge Jones, religion posits a supernatural cause of life while science posits a natural cause, a secular cause. Since ID leads to a supernatural cause, it is religion, and not science. Since it is religion, it should be excluded from the science classroom. 9

10 If the Court had employed the inclusive definition used by Judge Adams in the Third Circuit and by the Supreme Court (the courts that would have handled any appeal), his analysis would have broken down. Inclusive religion incorporates competing explanations about the cause, nature and purpose of life. A natural cause explanation is just as religious as a supernatural cause as it is a faith based tenet of Atheism, Secular Humanism, Agnosticism, Pantheism and a variety of other non-theistic religions. Furthermore, the inclusive definition defines religion in terms of its subject matter, not in terms of a particular belief. Since the origin of life is the ultimate religious question, the court should have recognized at the outset that the State had already entered the religious sphere when it chose to teach chemical and biological evolution, both of which are covered in all biology textbooks, including the ones then being used by the school. The Court and an objective observer would have also recognized that because the school had been employing MN in the teaching of that subject, the existing curriculum did not have a secular purpose, and was not evenhanded in operation, and neutral in primary impact. Thus, before even looking at the ID policy the court should have recognized that the School s use of MN in origins science was constitutionally problematic. The question then, is whether the ID Policy would simply add a competing dogma or neutralize an existing one. Because the ID Policy, unlike MN, was simply a tentative critique of scientifically accepted explanations it was not a doctrine requiring acceptance. Indeed, the policy simply had the effect of neutralizing the existing doctrine of MN, as that doctrine does not permit the critique that ID provides. The Court would then have recognized that the ID Policy was constitutionally necessary for the school to continue its curriculum regarding the evolution of life. The article devotes the remaining 20 pages to this analysis and its application to the endorsement and Lemon tests which are used to determine whether state entry into the religious sphere satisfies the Establishment Clause. Under either test the activity of the state is a violation if an objective observer (using a correct definition of religion) would have viewed it as secular in purpose and neutral in primary effect. The ID Policy does both as it imports scientific objectivity to a speculative science that cries out for it, and moves the state toward an explanation that is more neutral than the Atheistic bias dictated by MN. Conclusion (Section IX) The article concludes with the observation that the inclusive functional definition of religion should bring coherence to First Amendment practice. It is now incoherent because the vulgar or popular definition of religion is itself discriminatory while the purpose of First Amendment is non-discriminatory. If government is to be actually neutral in the vigorous competition between theists and non-theists, it must use the inclusive definition. Some Theists reject the idea of a religiously neutral government for a variety of reasons. Their concern is justified when government uses a discriminatory definition of religion that excludes only theistic views from the secular sphere. Those concerns should dissolve with the inclusive definition, for it requires the views of Theists to be objectively considered if the competing non-theistic views are to be entertained. Competition of that sort is good, for it should bring us closer to truth. 10

11 IMPORTANT CASES RE DEFINITION OF RELIGION [Government] shall make no [policy] respecting an establishment of religion, or prohibiting the free exercise thereof; 1933 Humanist Manifesto published. It declares a new religion to replace traditional religion. Designed to be taught in public schools. It denies the supernatural, affirms that the universe is self-existing and that life arises from unguided evolutionary change. The purpose of life should be guided by reason and science per the scientific method Religion clauses apply to states; Cantwell v. Conn., 310 U.S State may not take a position on the validity of a religious belief: U.S. v. Ballard, 322 U.S. 78 (The draftsmen fashioned a charter of government which envisaged the widest possible toleration of conflicting views. ) 1947 Separation is to be achieved by neutrality, not exclusion: Everson v. Board, 330 U.S. 1, 8-9 (state subsidies of transportation to parochial schools upheld using separation of church and state dictum. Separation requires the state to be neutral in its relations with groups of religious believers and non-believers; Government cannot exclude individual Catholics.. Mohammedans,.. Non-believers,.. or the members of any other faith, because of their faith, or lack of it Secular Humanism, an atheistic belief system, is a religion: Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673. Fourteen Secular Humanist churches receive tax exemptions permitted only for property used exclusively for religious worship. Judge Peters adopts a functional definition of religion. The test is whether or not the belief occupies the same place in the lives of its holders that the orthodox beliefs occupy in the lives of believing majorities; Religion simply includes: (1) a belief, not necessarily referring to supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organization within the cult designed to observe the tenets of the belief. Judge Peters decision was followed a month later by the DC Circuit in Washington Ethical Society v. District of Columbia (DC Cir 1957) Supreme Court embraces comprehensive definition: By its nature, religion - in the comprehensive sense in which the Constitution uses that word - is an aspect of human thought and action which profoundly relates the life of man to the world in which he lives. Religious beliefs pervade,... virtually all human activity. McGowan v. Maryland, 366 U.S. 420 (1961); But, Sunday closing laws do not invoke religious subject matter as they provide a day of rest for all religious persons, including disbelievers. The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief. See also Torcaso v. Watson, 367 U.S. 488 (1961) 1965 The Supreme Court adopts the Fellowship of Humanity Parallel Position Test: United States v. Seeger, 380 U.S. 163 (1965). Conscientious objectors may qualify for a religious exemption from combat even though they do not believe in a Supreme Being. Within [the phrase religious training and belief ] would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. Over 250 sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace Second & Ninth Circuits find religion includes non-theistic Scientology: Founding Church of Scientology v. U.S., 409 F.2d 1146 (DC Cir 1969); Church of Scientology v.cir, 823 F2d (9 th Cir 1987) 1970 The Supreme Court recognizes confusion over the broad meaning of religion Welsh V. United States, 398 U.S. 333: But very few registrants are fully aware of the broad scope of the word "religious" as used in 6 (j), and accordingly a registrant's statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption The meaning of religion is functional and means the same in the EC and FEC. Non-theistic religions like transcendental meditation may not be taught in public schools in the guise of science. Malnak v. Yogi, 592 F.2d 197 (3 rd Cir 1979) It seems unavoidable, from Seeger, Welsh, and Torcaso, that the theistic formulation presumed to be applicable is no longer sustainable. First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. A diet regime is not a subject matter of religion [ Africa v. Commonwealth of Penn. (3 rd Cir 1981)] Appellants do not consider SCI/TM to be a religion. But the question of the definition of religion for first amendment purposes is one for the courts, and is not controlled by the subjective perceptions of believers. Supporters of new belief systems may not choose to be non-religious, particularly in the establishment clause context. There is some indication that SCI/TM has attempted a transformation from a religion to a secular science in order to gain access to the public schools Second and Tenth Circuits embrace a broad definition of religion: U.S. v. Sun Myung Moon 718 F.2d 1210 (2 nd Cir, 1983); and United States V. Meyers, 95 F.3d 1475, (10 th Cir 1996) 1987 Religion is a set of beliefs about the cause, nature and purpose of life. Analysis showing Secular Humanism a religion not reversed. Smith v. Board, 827 F.2d 684 (11th Cir. 1987); reversed on other grounds, 827 F.2d 684 (11th Cir. 1987) Either belief or disbelief in God is an impermissible religious orthodoxy: Lee v. Weisman, 505 U.S. 577 [A] nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government's preference for theistic over nontheistic religion is constitutional. The settled law is that the Clause applies to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker 2005 Atheism is an Establishment Clause Religion Atheists are entitled to have church in prison. Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir.2005) 2008 EEOC Compliance Manual defines religion as concerned with ultimate ideas about life, purpose, and death, and includes atheism and other religious beliefs that are new, uncommon, citing many of the cases discussed above.

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