Free Inquiry
Appeared in Secular Humanist Bulletin, vol 19 issue 4

The Law and Secular Humanism

by David KoepsellJ

The following article is from the Secular Humanist Bulletin, Volume 19, Number 4.

If you follow the opinion pages of your local newspaper, chances are you have, or will, run across a letter or two in which the following argument is made: “The Supreme Court has held that Secular Humanism is a religion, and since evolutionary theory is a tenet of Secular Humanism, teaching it in schools violates the First Amendment.”

This is an argument being propounded by David Noebel, author of Mind Siege and critic of secular humanism in public schools. His agenda is not so much to get the teaching of evolution out of schools, but rather to get creationism, repackaged as “Intelligent Design,” into public-school curricula. There are a number of reasons that this agenda is flawed, but one might well ask: “If secular humanism is a religion, then ought not its precepts be kept out of public schools?” No court has ever held that secular humanism is a religion, but no one seems to be challenging Noebel and the letter writers he inspires on this basic, flawed premise.

To understand the roots of this perverted view of the law, we must start with the source, the most oft-quoted case in support of their stance. In Torcaso v. Watkins (1961), the Supreme Court first mentioned secular humanism in a footnote, lumping it with other “religions” that do not necessarily teach a belief in God, stating  

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 [further citations omitted]. Torcaso, fn. 11.

Attorneys know full well that a mention in a footnote amounts to “dicta,” but not to a “holding.” This footnote does not establish any law whatsoever. Moreover, the use of this quote by those who try to prove secular humanism is a religion takes it entirely out of its context and forty years of subsequent interpretation. Among the cases cited as precedent for the dicta in this footnote is Washington Ethical Society v. District of Columbia (D.C. Cir. 1957). That case regarded the classification of an organization as a tax-exempt not-for-profit. In holding that the Ethical Society deserves such classification (the court reversed and remanded to the district court) the Supreme Court held that the legislative purpose of the tax-exemption statute was “to grant support to elements in the community regarded as good for the community,” and thus, although the Ethical Society did not demand a belief in a god, it should be accorded the status of a “religious” organization to promote the broad public purposes of the statute.

In 1994, the Ninth Circuit soundly denounced both the classification of secular humanism as a religion and evolution as a religious tenet. In Peloza v. Capistrano Unified School District, the Ninth Circuit held: 

. . . neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are “religious” for Establishment Clause purposes. Indeed, both the dictionary definition of religion and the clear weight of the caselaw are to the contrary. The Supreme Court has held unequivocally that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not. [Edwards v. Aguillard (1987). Peloza, p. 521.]

The Ninth Circuit in Peloza cited in a footnote of its own the dictionary definition of religion as necessitating a belief in a supernatural power and cited a few cases and authorities that also supported its holding, including an Eleventh Circuit case from 1987 and a Second Circuit case from 1985 (United States v. Allen), which itself cited a book by constitutional scholar Lawrence Tribe. Each of these cases rejected the definition of secular humanism as a religion. 

In 2000, the D.C. Circuit court considered a line of cases regarding the definition of religion, and specifically whether secular humanism was one. It noted the narrow context of Torcaso and its predecessors, which grew out of consideration of tax-exempt status, as well as the fact that Torcaso was not a holding, but only dicta. In Kalka v. Hawk, the D.C. Circuit stated:

The Court’s statement in Torcaso does not stand for the proposition that humanism, no matter in what form and no matter how practiced, amounts to a religion under the First Amendment. The most one may read into the Torcaso footnote is the idea that a particular non-theistic group calling itself the “Fellowship of Humanity” qualified as a religious organization under California law. [It cited, among others, Peloza’s holding that secular humanism has never been held to be a religion.]

Yet, despite the clear state of the law on secular humanism failing to amount to a religion, David Noebel, in his alarmist screed Clergy in the Classroom, which urges people to write letters to the editor on just this topic, cites Torcaso and two other cases from 1892 and 1943 to support his argument that secular humanism is a religion and that the courts have held it to be so.

There are a number of other shortcomings to Noebel’s argument, including the leap from claiming that secular humanism is a religion to evolutionary theory being a religious tenet rather than an empirical fact. Ironically, this rather lengthy antiscientific argument depends on a form of radical skepticism, popularized by philosophical postmodernism, which at one time was considered to be an intellectual enemy of the Christian Right. Essentially, they are now embracing the notion that all inquiry, and therefore all history, is a narrative, and no one version has more truth than any other. Thus, they argue, the facts of the fossil records, DNA studies, and other bases for evolutionary theory amount to nothing more than stories made up to describe speciation, not unlike the story in the Bible, which explains it another way. That argument is easy to counter with even a basic knowledge of the scientific method and the role of theory, observation, and experiment.

Armed as you are now with some case law, however, you might well respond in kind when you see this spurious argument crop up, as you can bet it will, in your local papers, and at your school-board meetings. 

David Koepsell is executive director of the Council for Secular Humanism.

Secular Humanism Online Library

Council for Secular Humanism Web Site

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