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August 23, 2005

Be Careful What You Wish For...

Via John Hawkins, I found this intriguing item:

A federal court of appeals ruled yesterday Wisconsin prison officials violated an inmate's rights because they did not treat atheism as a religion.

"Atheism is [the inmate's] religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being," the 7th Circuit Court of Appeals said.

Now before we get our Hanes Ultra Sheers all into a knot ladies, think about this.

I have long maintained that Atheism has been elevated to the status of a cult or religion in this country. The ACLU certainly seem to pursue it with the single-minded devotion of the newly-converted zealot, throwing up their arms and and hollering, "Come to Madeleine!" with every third step. But consider the implications of this legal reasoning:

The Supreme Court has said a religion need not be based on a belief in the existence of a supreme being. In the 1961 case of Torcaso v. Watkins, the court described "secular humanism" as a religion.

In fact, it would seem in this case that the basis for this "religion" (or "church", if I may be so bold) is disbelief in a Supreme Being.

So where does that leave the ACLU's quest to remove all mention of God from the public square? Since Atheism is, by definition, disbelief in God and our august Court has just ruled that Atheism (like secular humanism, which is really more of a philosophy than a formal movement) is a religion, does this not turn the ACLU's drive into a religious crusade?

Are they not, in effect, seeking to enforce their religious ideology on believers just as much as any Christian, Jew, or Muslim would be by allowing the display of a religious symbol or text?

Update: Caveat lector: commenter wolfwalker stated:

The mention of "secular humanism" in Torcaso is only in a footnote, not in the text of the opinion. That means it has no legal force. In the 1994 case Peloza v. Capistrano Board of Education, the Ninth Circuit Court of Appeals explicitly denied that SCOTUS had called "secular humanism" a religion.

Which, while interesting, still says nothing about the recent 7th Circuit decision, which is still bizarre. Thanks to wolfwalker for the update. It does appear that 'secular humanism' is mentioned in Footnote 11:

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.

This paper references another Texas Court of Appeals decision not mentioned in the footnote above (Strayhorn), along with Washington Ethical Soc. vs. DC:

On March 6, 2003, the Texas Court of Appeals ruled that the use of the “Supreme Being” test denied the Ethical Society of Austin’s First Amendment Rights. The primary issue considered by the Court on appeal was whether the First Amendment afforded protection to unfamiliar religions that do not necessarily believe in a higher power. The Court held that the “Supreme Being” test was unconstitutionally under-inclusive and replaced it with the Malnak test, thereby affirming the lower court’s decision that the Texas Comptroller violated the Society’s First Amendment rights when denying a religious tax-exemption.

You may also find this link of interest if you have no life.

Posted by Cassandra at August 23, 2005 06:30 AM

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Comments

Atheism-as-religion. The ultimate oxymoron.

Another good one, Cass.

Posted by: Cricket at August 23, 2005 08:27 AM

Agreed.

Posted by: Lisa at August 23, 2005 08:33 AM

At least they can't teach atheism in schools then.

Posted by: Rodney Dill at August 23, 2005 08:54 AM

The state religion is nuanced. It is a 'feel good' ethos that says you are in control, not some
fear of an unseen Supreme Being. You can't fear or respect what you can't see.

Ergo, you can see and fear/respect other humans.

Heaven forbid you fighting against someone else's percieved right to hurt you because of their ethos. Between atheism and Islamic fascist thought, we have served God and morals a pretty trick.

But I am sure that is a topic for another post.

Posted by: Cricket at August 23, 2005 09:49 AM

I've long made this same arguement.

If allowing the city mayor to say a prayer at the high school football game constitutes an implicit enforcement of whatever religion the prayer was in because of the threat of force from the gov't guys with guns (police) walking around then when the police actually use force to arrest the mayor for praying at said football game it constitutes an actual explicit enforcement of atheism.

The mayor's prayer does not compell conversion. It can easily be ignored. But when the police come to arrest the mayor we then have an actual enforcement of atheism. Most people wouldn't dream of making a Buddhist act like a Christian or Muslim, but rarely does anyone bat an eye when Christians are made to act like atheists.

Posted by: Masked Menace© at August 23, 2005 10:47 AM

But when the police come to arrest the mayor we then have an actual enforcement of atheism.

...and therefore the Establishment Clause, which was intended to ALLOW the free exercise of religion, is used to PREVENT the free exercise of religion.

And *that* is precisely my point.

Thank you.

Posted by: Cassandra at August 23, 2005 10:53 AM

Yossarian would be proud of this Catch-22. Now it needs to be argued--successfully--in the courts over and over again.

Posted by: joated at August 23, 2005 12:23 PM

"In the 1961 case of Torcaso v. Watkins, the court described "secular humanism" as a religion."

Sorry, but this is false. The mention of "secular humanism" in Torcaso is only in a footnote, not in the text of the opinion. That means it has no legal force. In the 1994 case Peloza v. Capistrano Board of Education, the Ninth Circuit Court of Appeals explicitly denied that SCOTUS had called "secular humanism" a religion.

The mis-cite of Torcaso is a common one among the religious right, and you need to be pretty sharp on the subject of con-law to understand why it's a mistake. But that doesn't change the fact it's a mistake.

Posted by: wolfwalker at August 23, 2005 09:35 PM

That's way over my head, wolfwalker. I'm just quoting an article. That's why I took the trouble to link to the case, rather than just mentioning it. I'd have read the whole thing if I'd had time before work, but quite frankly, as you pointed out, not being a constitutional lawyer (or any kind of lawyer) I doubt whether I'd have understood the distinction myself :)

I did email it to one of the big law blawgs, but I didn't really expect an answer back. They almost never bother to answer mail from the peanut gallery.

And I don't know whether or not you thought I might be on "the religious right" or not (you never can tell :) but that's a real stretch!

Regardless of the Torcaso point, my original point remains, doesn't it? Until someone overturns this ruling, it still raises and interesting question?

Posted by: Cassandra at August 23, 2005 10:00 PM

Well, I didn't get the distinction either until someone explained it to me, Cassandra. :-)

Regarding this case, I want to see a better description of the facts before I form any opinion on it. WorldNetDaily isn't what I consider a reliable source to start with, and the fact that the article repeats the false claim about Torcaso makes me further doubt its accuracy. I don't even see the case name, which I'd need in order to do any kind of search about it. Until then, I'm not even willing to admit the decision says what the article claims it says.

If the description is accurate, I'd say this is a decision that needs to be overturned. In my view, atheism isn't a religion; it's a theological position that can be part of a religion. At least two major religions include atheistic variants: Taoism and Zen Buddhism. Animism recognizes numerous supernatural beings, but doesn't make any of them "supreme." If the plaintiff was really making a religious-freedom argument, he should have been required to produce more than a simple statement that he doesn't believe in God.

"So where does that leave the ACLU's quest to remove all mention of God from the public square?" In big trouble, I'd say. But then, it always was in trouble, it just took a while to realize it. This confrontation was set up fifty years ago, when Congress starting inserting overt mentions of God into things like the currency and the Pledge of Allegiance. Ben Franklin's creed of "moderation in all things" applies here as much as anywhere else. The ACLU would have done better to limit itself to challenging aggressive displays of religion, not all displays of religion. And Christians would have done better to accept that the government should not be in the business of supporting religion.

Posted by: wolfwalker at August 23, 2005 11:00 PM

Caveat lector, indeed. The court didn't rule that "atheism is a religion." You left off two vital qualifications: it ruled that atheism is a religion "for First Amendment purposes" and "for this inmate."

That means that it wasn't declared a religion for any other context (like the ACLU, which often defends Christians who claim that their religious liberty was infringed upon) or for any other inmate (for whom atheism may not be a religion).

Atheism is being treated as a religion is a "legal fiction," like corporations being treated like a person for the purposes of property. It isn't really a religion, but it has to be treated like a religion in order to keep the government from privileging religion - like when non-religious beliefs are treated like a "religion" for the purposes of getting a "religious exemption" from the draft.

Surely you don't think that only religious pacifists should have a chance to be exempt from a draft? If not, then you agree with treating a non-religious belief "like a religion" for narrow legal purposes. So why not here as well?

It's very unfortunate, but the courts don't seem to have hit upon any other solution to keep the government from giving religion special privileges unavailable to everyone else. If you have a better solution, write it up and submit it to a law journal. I'm sure that lots of judges and lawyers would be relieved to be able to avoid treating non-religious beliefs as if they were religions.

Posted by: Joe at August 26, 2005 07:16 AM

Even to lawyers (whom I agree are an odd bunch, Joe) must be able to see that the worship of, and belief in, a Supreme Being is perhaps a distinct and special case, unlike all other cases, such as forming a club to bake brownies, or have sex with little boys, or race motorcycles.

I am still unsure that simply deciding *not* to worship puts you in that special case, because first of all it didn't meet the Malnak test IMO, and second it just doesn't occasion all the steps and commitments that a decision TO worship does.

And no, I am not especially religious. I can just see the distinction between two essentially unlike things.

Posted by: Cassandra at August 26, 2005 07:28 AM

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