Part 2: Humanism Meets Religion Under the Constitution
Well, if the arguments presented in Part 1 of this essay are valid and Humanism can be considered a religion in terms of the faith in its worldview and related beliefs, then what is it from a legal standpoint?
It’s the first sixteen words of the First Amendment that are usually at issue here: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
One of the primary reasons for the Revolutionary War was to create a nation that would be free of the “Divine Rights of Kings.” Then, too, this was the Age of the Enlightenment where the imperative of the social contract, according the likes of Locke, Hume, Rousseau, and others, was to put the governed in charge of the government, and to let natural law take its course.
But, this was not an easy fight. The religionists of the day were pretty vehement about their faith. Perhaps their concept of religion was similar to the definition found in Webster’s 1828 Dictionary (with my underscores added):
“Religion, in its most comprehensive sense, includes a belief in the being and perfections of God, in the revelation of his will to man, in man’s obligation to obey his commands, in a state of reward and punishment, and in man’s accountableness to God; and also true godliness or piety of life, with the practice of all moral duties. It therefore comprehends theology, as a system of doctrines or principles, as well as practical piety; . . . [the] practice of moral duties without a belief in a divine lawgiver, and without reference to his will or commands, is not religion.“
Talk about your bible thumpers! In any case, with no adherents of the Eastern religions in the nation to protect, and ignoring the Native American religions altogether, I feel sure the framers understood religion more or less as it was defined by Noah Webster in 1828. And that understanding would continue for more than 150 years before the courts began to realize that there were other religions in the country, some of which (surprise, surprise) were not inclined toward belief in the supernatural.
American history is replete with the activities involving religion and its influence on American society. I will demur from trying to summarize that information here. (You’re welcome.) But the reader may benefit from reading about how the founders viewed religion in their day. I would suggest starting with
James Madison’s speech, “Memorial and Remonstrance Against Religious Assessments,” that he made in 1785, to the Virginia legislature. It might also be helpful to become informed about the various “Great Awakenings” that began in 1725.
However, in dealing with the legalities involving religion these days, the courts tend to look first at whether the issue at hand falls under the “Establishment Clause” or the “Free Exercise Clause” of the First Amendment. Legal scholars have noted that the general framework for the analysis of cases involving religion came from 1947’s Everson v. Board of Education, in which Justice Hugo Black, writing for the court, provided this perspective:
“The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
“No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
“Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of [Thomas] Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”
In public schools, for example, reciting the Lord’s Prayer in class was deemed unconstitutional as a violation of the Establishment Clause because it was for the exclusive benefit of Christians, thereby denying, say, Hindu children from reading the eight verses of the Siksastaka. This opinion came from the combined cases of Abington School District v. Schempp and Murray v. Curlett cases, which were argued in the Supreme Court and won by the now infamous atheist Madeline Murray O’Hare. The pertinent part of the decision reads:
“Because of the prohibition of the First Amendment against the enactment by Congress of any law ‘respecting an establishment of religion,’ which is made applicable to the States by the Fourteenth Amendment, no state law or school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in the public schools of a State at the beginning of each school day – even if individual students may be excused from attending or participating in such exercises upon written request of their parents.”
Although it has been criticized, the courts now use the so-called “Lemon test,” which came from a 1971 case, Lemon v. Kurtzman, to evaluate whether and when the Establishment Clause is applicable. The Lemon test consists in three parts:
1.The government’s action must have a legitimate secular purpose;
2.The government’s action must not have the primary effect of either advancing or inhibiting religion; and;
3.The government’s action must not result in an “excessive entanglement” of the government and religion.
Cases involving the Free Exercise Clause require the government to allow accommodation of religious conduct and to not interfere with it except where the state can show a compelling interest. For example, when South Carolina refused to pay unemployment benefits to Adell Sherbert because of her religion, Jehovah’s Witness in this case, the courts ruled that South Carolina violated Ms. Sherbert’s Free Exercise rights and ordered the state to pay up. (See Sherbert v. Verner, 1963.)
The courts have also finally come to accept that “religion,” for the purposes of the First Amendment, is more than the strict theism of Christianity, and that, in fact, many religions exist that are not theistic at all, including Humanism.
That said, here are a few cases specific to non-theistic organizations, including Humanists, where they were treated as a religion under the First Amendment.
1. Washington Ethical Society v. District of Columbia (1957).
The Washington Ethical Society, representing itself as a non-theistic religious institution that promotes ethical living without mandating a belief in the supernatural, (just like Humanism,) applied for but was denied tax exemption as a religious organization by the Tax Court. The U.S. Court of Appeals subsequently reversed the Tax Court’s ruling, recognized the Society as a religious organization, and granted the tax exemption.
The Appeals Court stated,
“The taxing authority [denied] the tax exemption asserting petitioner (The Washington Ethical Society) is not a religious society or church and that it does not use its buildings for religious worship since ‘religious’ and ‘worship’ require a belief in and teaching of a Supreme Being who controls the universe. The position of the Tax Court . . . was that belief in and teaching of the existence of a Divinity is essential to qualify under the statute.
“To construe exemptions so strictly that unorthodox or minority forms of worship would be denied the exemption benefits granted to those conforming to the majority beliefs might well raise constitutional issues . . . . We hold on this record and under the controlling statutory language [that] petitioner qualifies as “a religious corporation or society“
2. Torcaso v. Watkins (1961).
Roy Torcaso, a practicing atheist and Humanist, was appointed by the governor of Maryland to become a notary public, but refused to declare his belief in Almighty God, as required by State law for him to be commissioned. The Court held that such an oath invades Torcaso’s freedom of belief and religion, ruling as follows:
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, (10) and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs
Of interest in this case is Footnote 11 of the Court’s opinion concerning “religions founded on different beliefs,” which states: “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.”
As a result of that footnote, Torcaso v. Watkins is the most referenced case where non-theistic beliefs are involved.
3. U.S. v. Seeger (1965)
Here, the Supreme Court granted “conscientious objector” status to a Humanist, saying that Humanists who don’t believe in God are religious for conscientious objector purposes; holding that belief in a “Supreme Being” is not a necessary component of religion and that, therefore, Humanists are entitled to the free exercise protection of the First Amendment. (Good news for Humanists of draft age if the draft ever comes back.) The Court wrote:
“The test of religious belief within the meaning of the exemption in 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption.
“The exemption does not cover those who oppose war from a merely personal moral code nor those who decide that war is wrong on the basis of essentially political, sociological or economic considerations rather than religious belief.”
4. Smith v. Board of School Commissioners of Mobile County, Alabama (1987)
Parents brought a lawsuit against the school board, alleging that the school system was using 44 different textbooks that effectively teach the tenets of a religion called “Secular Humanism,” and asked that said textbooks be removed because they were in violation of the Establishment Clause. Federal District Court Chief Judge W. Brevard Hand, in a 167 page opinion, ruled in favor of the parents, saying, in effect, that Humanism was a religion being taught in Mobile’s schools, which is in violation of the Establishment Clause.
Judge Hand’s ruling was subsequently overtured by the 11th Circuit Court, which said he made a false assumption in arguing that all religions, including the religion of Secular Humanism, should be treated equally. The Court opined that:
“The home economics, social studies, and history textbooks at issue in this case do not violate the establishment clause of the first amendment. The district court’s conclusions to the contrary reflect a misconception of the relationship between church and state mandated by the establishment clause. What is required of the states under the establishment clause is not ‘comprehensive identification of state with religion,’ but separation from religion.
“Separation is a requirement to abstain from fusing functions of Government and religious sects, not merely to treat them all equally.
“The public schools in this country are organized on the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion.
“(T)he district court’s opinion in effect turns the establishment clause requirement of ‘lofty neutrality’ on the part of the public schools into an affirmative obligation to speak about religion. Such a result clearly is inconsistent with the requirements of the establishment clause.”
So, the 44 textbooks were put back on the shelves of the Mobile County schools
5. Kalka v. Hawk (1996)
Federal prisoner Ben Kalka attempted to form a Humanism group as part of the Religious Services Department at a federal prison in Jesup, Georgia. He was refused when the prison’s “Religious Issues Committee” determined that Humanism was not a religion because it was “more philosophical and educational in nature,” but that Kalka could still freely practice his humanism and could organize a Humanist group but only within the prison’s Education Department. The federal district court ruled that Humanism is indeed a religion but that denying Kalka access to the prison chapel did not prevent him from practicing his humanist beliefs.
In June, 2000, the U.S. Court of Appeals agreed with the lower court and ruled that Humanism is a religion, but took the prison off the hook, saying,
“A reasonable official would not have believed that excluding Kalka’s humanism from the prison’s Religious Services Program was unlawful. There was neither precedent declaring humanism in general to be a religion nor any prior ruling on the religious nature of Kalka’s beliefs.”
(The prison officials were granted immunity and were not liable for any penalties related to Kalka’s suit.)
As these few cases illustrate, Humanism is a religion for “free exercise clause” purposes, but not a religion for “establishment clause” purposes. Notwithstanding that limitation, and since, as a matter of law, Humanism is a religion that can be freely exercised, then by extension, the adherents of Humanism and the respective Humanist organizations to which they belong constitute a legitimate, constitutionally protected religion.
But the courts, as we are all painfully aware, are not exactly consistent and, indeed, are often hypocritical. For example, in the 1983 case, Marsh v. Chambers, Ernest Chambers, a member of the Nebraska legislature, challenged the practice of offering of a prayer at the beginning of each legislative session by a Chaplain who was chosen by the state and paid out of public funds. The case went to the Supreme Court, which was asked to decide whether the Nebraska legislature violated the Establishment Clause of the First Amendment.
In a 6-to-3 decision, the Court ruled in favor of the Nebraska legislature. Chief Justice Warren Burger, who wrote the majority opinion, noted that the custom “is deeply embedded in the history and tradition of this country from colonial times and the founding of the republic.” Further, the Court held that the use of prayer “has become part of the fabric of our society,” coexisting with “the principles of disestablishment and religious freedom.” Justice Burger noted that in such circumstances an invocation for Divine guidance is not an establishment of religion. “It is,” he wrote, “simply a tolerable acknowledgment of beliefs widely held among the people of this country.”
It should be noted that both the U.S. House of Representatives and the U.S. Senate have Chaplains who start each daily session with a prayer. Of the 115 Chaplains who have served in the House and Senate since 1774, all but three – two Unitarians and one Universalist, have been Christian and those have all been Protestants, save one Catholic.
Clearly, Justice Burger’s opinion turned the Establishment Clause on its head. The employment of Chaplains in state and federal legislatures is a blatant violation of the Establishment Clause and is unconstitutional for the same reason we can’t have Chaplains in public schools to start each day with a prayer and/or conduct bible study. Nowhere in the Constitution does it say that its provisions are to be dismissed or ignored due to tradition. I submit that the “we’ve-always-done-it-that-way” argument is intellectually and judicially dishonest and makes a mockery of the law. Shame on the Supreme Court. Again.
Then there is the issue of taxation, or I should say, tax-exemption, of religious institutions. There are a number of cases moving through the courts that deal with this issue, but I will not dwell on them here. (You’re welcome.) Suffice to say, the American Humanist Association is tax-exempt as an educational institution, not as a religious one. (This taxability question has some very interesting aspects, however, and I may address those in a future essay.)
Notwithstanding the legal issues, my contention here is that for all intents and purposes Humanism as a religion will likely be unwelcome news to many of its adherents, especially now that the New Atheists are tethered to the Humanist Movement. In fact, some Humanist organizations, like the Council for Secular Humanism mentioned above, are adamant about the disestablishment of religion and resent being associated with anything that might remotely qualify as a religion.
So, the Humanist movement may want it both ways. No doubt they would like to enjoy the free exercise advantages of religion, including the related tax benefits and the protection of certain civil rights. But in terms of philosophy, maybe they want to be the Other; setting up the nonreligious “us” to inveigh against the religious “them.”
Such disparate views have thus resulted in what I call the Quantum Theory of Humanism, which says that Humanism is both a religion and not a religion at the same time. And that leaves us with a dilemma wrapped in a paradox.
Fred Edwords, former president of the American Humanist Association, touches on this conflict in his essay, posted on the AHA website, titled What Is Humanism? Edwords actually sees it as one of several paradoxes:
“The fact that humanism can at once be both religious and secular presents a paradox of course, but not the only such paradox. Another is that both Religious and Secular Humanism place reason above faith, usually to the point of eschewing faith altogether. The dichotomy between reason and faith is often given emphasis in humanism, with humanists taking their stand on the side of reason. Because of this, Religious Humanism should not be seen as an alternative faith, but rather as an alternative way of being religious. These paradoxical features not only require a unique treatment of Religious Humanism in the study of world religions but also help explain the continuing disagreement, both inside and outside the humanist movement, over whether humanism is a religion at all.”
Of course, I argue here that Humanists do, in fact, have faith and that that faith is in humanity itself. If this were not true, then Humanism would be no more than a series of politically correct platitudes, and mere wishful thinking for civility, egalitarianism, and speaking truth to power.