The Constitutional Principle: Separation of Church and State
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References to Secular Humanism in Federal Circuit Court Cases

Most of the following cases can be further researched on FindLaw. The appropriate URL is linked where the case is designated "FindLaw"

Researched and edited by Jim Allison

11th Circuit Court of Appeals

Smith V. Bd of Comm. Of Alabama (1987)

The 11th Cir. Court of Appeals in Smith v. Bd. of Comm. of Alabama (1987) held: "The Supreme Court has never established a comprehensive test for determining the "delicate question" of what constitutes a religious belief for purposes of the first amendment, and we need not attempt to do so in this case, for we find that, even assuming that secular humanism is a religion for purposes of the establishment clause, Appellees have failed to prove a violation of the establishment clause through the use in the Alabama public schools of the textbook at issue in this case.

S. Batte, Esq

Peloza v. Capistrano Unified School District 37 F3d. 517, 521 (9th Cir. 1994) [references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

Charitably read, Peloza's complaint at most makes this claim: the school district's actions establish a state-supported religion of evolutionism, or more generally of "secular Humanism." See Complaint at 2-4, 20. According to Peloza's complaint, all persons must adhere to one of two religious belief systems concerning "the origins of life and of universe:" evolutionism, or creationism. Id it 2. Thus, the school district, in teaching evolutionism, is establishing a state-supported "religion."

We reject this claim because neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are"religions" for Establishment Clause purposes. Indeed, both the dictionary definition of religion (4) and the clear weight of the caselaw (5) 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 Aquillard, 482 U.S. 578 107, S. Ct. 2573, 96 L.Ed2d 510 (1987) (holding unconstitutional, under Establishment Clause, Louisiana's "Balanced Treatment foir Creation-Science and Evolution- Science in Public School Instruction Act.")


(4) According to Webster's, religion is the "belief in and reverence for a super natural power accepted as the creator and governor of the universe." Webster's II New Riverside University Dictionary 993 (1988)

(5) See Smith v Board of School Com'rs of Mobile County, 827 F.2d 684, 690-95 (11th Cir.1987) (refusing to adopt district court's holding that "Secular Humanism" is a religion for Establishment Clause purposes, deciding case on other grounds; United States v Allen, 760 F2d 447, 450-51 (2d Cir. 1985) (quoting Tribe American Constitutional Law 827-28 (1978), for the proposition that, while "religion" should be broadly interpreted for the Free Exercise Clause purposes, "anything ‘arguably non-religious' should not be considered religious in applying the establishment clause").


[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

It is, of course, true that the often referenced "wall of separation" (8) between church and state has recently been described as more "metaphor" than reality.(9) However, even if the "wall" is more metaphor than mortar, it is sufficiently unyielding to prevent prayer from being included as a formal part of the graduation ceremony under Version D of Policy IKFD. (10)

Footnote: 8

See Everson v. Board of Educ. , 330 U.S. 1, 16 (1947).

Footnote: 9

See Lynch , 465 U.S. at 673 .

Footnote: 10

The "wall of separation" between church and state was first mentioned in Reynolds v. United States , 98 U.S. 145, 164 (1878), quoting Thomas Jefferson's reply to a committee of the Danbury Baptist Association:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinion, -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion or prohibiting the free exercise thereof," thus building a wall of separation between church and State.

In Reynolds , the Court accepted Jefferson's observations "almost as an authoritative declaration of the scope and effect" of the First Amendment. Id. Similarly, in Everson the Court approvingly cited Jefferson's statement in laying the foundation for its Establishment Clause doctrine. See 330 U.S. at 16 ("In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between Church and State.'") (citation omitted); id. at 18 ("The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.").

Since Everson , the Court has referenced the wall as metaphor on numerous occasions. See Lee , 505 U.S. at 600 -01 (Blackmun, J., concurring) (quoting Jefferson); Lynch , 465 U.S. at 673 ("The concept of a `wall' of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it.") (footnote omitted); Larkin v. Grendel's Den, Inc. , 459 U.S. 116, 123 (1982) ("the concept of a `wall' of separation is a useful signpost"); McDaniel v. Patty , 435 U.S. 618, 637 (1978) (Brennan, J., concurring) ("Our decisions interpreting the Establishment Clause have aimed at maintaining erect the wall between church and state."); Committee for Public Ed. and Religious Liberty v. Nyquist , 413 U.S. 756, 761 (1973) ("Neither, however, may it be said that Jefferson's metaphoric `wall of separation' between Church and State has become `as winding as the famous serpentine wall' he designed for the University of Virginia.") (citation omitted).

However, it has also been suggested that the analogy to a "wall" may not be far off the mark. See Schempp , 374 U.S. at 217 ("`The (First) Amendment's purpose . . . was to create a complete and permanent separation of the spheres of religious activity and civil authority . . . .'") (citation omitted); Engel v. Vitale , 370 U.S. 421, 425 (1962) ("[P]etitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention . . . ."); Torcaso v. Watkins , 367 U.S. 488, 491 (1961) (quoting Everson quoting Jefferson); McGowan v. Maryland , 366 U.S. 420, 443 (1961) (same); Zorach , 343 U.S. at 312 ("There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated."); Illinois ex rel. McCollum v. Board of Educ. , 333 U.S. 203, 212 (1948) ("[A]s we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable."); id. at 231 (Frankfurter, J., concurring) ("Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a `wall of separation,' not of a fine line easily overstepped.").


[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

Our primary task is to flesh out the meaning of the new RFRA standard as it applies in the prison context, and in particular as it applies to this case. [2] others nor religious adherents collectively over nonadherents.") (internal citations omitted).

[2] However, because we conclude that Rule 33-3.012 on its face passes even the most restrictive compelling interest test that Congress may have contemplated in drafting RFRA, we need not and do not today resolve the question of RFRA's constitutionality. See Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 VAND.L.REV. 1539 (1995) (questioning whether RFRA is an unconstitutional application of federal power to the states not authorized by § 5 of the Fourteenth Amendment); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U.L.REV. 437 (1994) (questioning whether RFRA violates the separation of powers doctrine, the Establishment Clause, and § 5 of the Fourteenth Amendment, and noting that, "RFRA not only defies [ Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872 , 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) ], it misreads the Supreme Court's jurisprudence prior to Smith; and RFRA not only gives religious believers far more than their constitutional due, it does so in a fashion that is itself constitutionally objectionable precisely in terms of religious freedom."); Scott C. Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power, 73 TEX.L.REV. 247 (1994) (suggesting that RFRA may violate the Establishment Clause of the First Amendment to the Constitution, in part because it expands the bounds of Free Exercise beyond the point which the Court has in the past taken it, by establishing a preference for religiosity over non-religiosity); see also Everson v. Board of Ed. of Ewing Twp., 330 U.S. 1, 15 , 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) ("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 ...") [emphasis added]; Torcaso v. Watkins, 367 U .S. 488, 495 , 81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961) ("We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief of any religion. Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers ...") (internal quotation omitted) [emphasis added]; Lemon v. Kurtzman, 403 U.S. 602 , 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (statute must have secular legislative purpose, and must primarily neither advance nor inhibit religion, nor foster excessive government-religion entanglement, to avoid reach of Establishment Clause); County of Allegheny v. ACLU, 492 U.S. 573 , 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (same); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 , 109 S.Ct. 890, 103 L.Ed.2d 1 (1989) (invalidating, on Establishment grounds, Texas law granting sales tax exemption to religious publications); Board of Ed. of Kiryas Joel v. Grumet, --- U.S. ----, ----, 114 S.Ct. 2481, 2487, 129 L.Ed.2d 546 (1994) ("A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of neutrality toward religion, favoring neither one religion over another)

FindLaw: KERR v FARREY (1996)

[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

In the first group of cases, those dealing with government efforts to "coerce anyone to support or participate in religion or its exercise," the essence of the complaint is that the state is somehow forcing a person who does not subscribe to the religious tenets at issue to support them or to participate in observing them. These cases can be thought of generally as the "outsider" cases, where the state is imposing religion on an unwilling subject. Thus, for example, in Torcaso v. Watkins, 367 U.S. 488 (1961), the Court struck down a Maryland law that required individuals appointed to public office in that state to declare their belief in the existence of God.

Although it has been clear for many years that the state may not coerce people to participate in religious programs, see Barnette (1943), Torcaso (1961), and Engel (1962), the particular application of this principle to prisons has arisen only recently in the courts.

FindLaw: ALVARADO v CITY OF SAN JOSE No. 9515519 (1996)

[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

The Malnak I court cited a number of Supreme Court cases to support its conclusion that even a small and unknown sect that denies its religious character may be defined as religious for purposes of the First Amendment. See id. at 1313-14 (citing Engel v. Vitale, 370 U.S. 421 (1962) (a school prayer case holding that prayers invoking even a "generic " God violated the Establishment Clause in this context); Torcaso v. Watkins, 367 U.S. 488 (1961) (holding unconstitutional a statute requiring appointees to state office to profess a belief in God, because it discriminated against nonreligious persons and non-theistic religious persons);[2] and Welsh v. United States, 398 U.S. 333 (1970) and United States v. Seeger, 380 U.S. 163 (1965) (conscientious objector cases defining "religion" broadly for purposes of statutory, rather than constitutional, construction)).

[ Footnote 2 ] In Torcaso, in the context of ruling on a state statute requiring notaries to profess belief in God as a condition of office, the Supreme Court assumed without deciding that certain non-theistic beliefs could be deemed "religious" for First Amendment purposes. The Court stated in dictum:

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 [citations].

Id. at 495 n.11. Much has been made of this footnote, which has been explained as follows by Judge Canby, concurring in Grove: "The apparent breadth of the reference to 'Secular Humanism' . . . is entirely dependant upon viewing the term out of context. In context, it is clear that the Court meant `no more than a reference to the group seeking an exemption in Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673 [315 P.2d 394] (1957) which, although non-Theist in belief, also met weekly on Sundays and functioned much like a church . . . . Thus Torcaso does not stand for the proposition that "humanism" is a religion, although an organized group of "Secular Humanists" may be.' " 753 F.2d at 1537 (quoting Malnak II, 592 F.2d at 206 & 212 (Adams, J., concurring)). See also Peloza, 37 F.3d at 521 ("neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are`religions' for Establishment Clause purposes."), cert. denied, 115 S. Ct. 2640 (1995).


[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

The coercive nature of the conduct that Venters has described also renders it possible that Ives interfered with her right to the free exercise of religion. Public employment may not be conditioned on one's willingness to subscribe to particular religious principles or to any religious belief at all. E.g., Torcaso v. Watkins, 367 U.S. 488 , 495- 96, 81 S. Ct. 1680, 1683-84 (1961). When a public employee is discharged based on a religious assessment, her right to free exercise is violated just as surely as if she were refused a governmental job based on her refusal to declare a belief in the existence of a supreme being. Id. at 495-96, 81 S. Ct. at 1684. This is no less true when a public official, wielding the threat of termination, pressures his subordinate to engage in a religious dialogue, to entertain his own religious beliefs, to worship at his church, and to comport herself in accord with the articles of his faith. These actions invade the realm that the First Amendment reserves to one's own conscience and interfere with the individual's ability to believe or not, to practice or not, as she wishes.


We acknowledge, finally, that there may be some tension between the rights that Venters enjoys under the First Amendment and Title VII and Ives' own First Amendment rights. As the appellees' counsel noted at argument, Ives not only holds strong religious convictions, but he believes that "the Bible requires him to witness those [beliefs] to people who want to hear it." Yet, a key premise of Venters' case is that she had a right to be left alone to exercise her own thoughts on the subject of religion in private, free of interference from her governmental employer. The Eighth Circuit's divided decision in Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995) (en banc), cert. denied, 116 S. Ct. 1042 (1996), touches upon this tension. Compare id. at 658-59 (majority) with id. at 660 (dissent) and 37 F.3d 404, 409-10 (8th Cir. 1994) (panel majority), vacated on grant of reh'g en banc (Nov. 25, 1994); see also E.E.O.C. v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 619-22 (majority), 622-25 (dissent) (9th Cir. 1988), cert. denied, 489 U.S. 1077 , 109 S. Ct. 1527 (1989). We are not called upon to draw lines at this juncture. We merely take the opportunity to reiterate that Venters' case, as we understand it, does not rest on allegations of mere discomfort with religious views that we may assume Ives, even as a public official, was free to express, but upon allegations that Ives used his office to impose his religious views on Venters as his subordinate. Whatever the First Amendment may have entitled Ives to believe, to say, or to do, it did not permit him as a public official to require his subordinate to conform her conduct and her life to his notion of "God's rule book." See Everson v. Board of Educ., supra, 330 U.S. at 15 -16, 67 S. Ct. at 511. It did not allow him to condition her continued employment on the state of her "salvation." Ibid; Torcaso v. Watkins, supra, 367 U.S. at 495 -96, 81 S. Ct. at 1683-84. It did not grant him license to make highly personal remarks about the status of her soul when informed that these remarks were unwelcome. Whether he actually did any of this is, of course, for the jury to decide.


[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

This is not to say that the government can place conditions on the receipt of state-created benefits that have the effect of dissuading people from exercising a constitutional right, even if the government has absolute discretion as to whether it will provide the benefit in the first instance. See generally , Richard Epstein, Unconstitutional Conditions , 102 HARV. L. REV. 4 (1988) (explaining the doctrine of unconstitutional conditions); Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989) (discussing the doctrine of unconstitutional conditions). This is well established in our First Amendment jurisprudence. See, e.g., Torcaso v. Watkins, 367 U.S. 488 (1961) (citizen cannot be refused public office because he refused to declare belief in God); Speiser v. Randall , 357 U.S. 513 (1958) (government cannot condition receipt of tax exemption on people signing declaration that they have never advocated forcible overthrow of the government).

FindLaw: COLSON v GROHMAN, (1999)

[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

As a general rule, the First Amendment prohibits not only direct limitations on speech but also adverse government action against an individual because of her exercise of First Amendment freedoms. For example, the government may not place conditions on public benefits, including jobs, that penalize applicants for their speech, beliefs, or association. See Pickering v. Board of Educ. , 391 U.S. 563, 574-75 (1968) (holding impermissible under the First Amendment the dismissal of a high school teacher for speaking on "issues of public importance"); Sherbert v. Verner , 374 U.S. 398, 409-10 (1963) (holding that unemployment compensation may not be withheld on the condition that a person accept Saturday employment contrary to her religious faith); Torcaso v. Watkins , 367 U.S. 488, 495-96 (1961) (holding that a citizen cannot be refused a public office for failure to declare his belief in God); Speiser v. Randall , 357 U.S. 513, 528-29 (1958) (prohibiting on First Amendment grounds the limiting of state tax exemptions to only those who take a loyalty oath); cf. Cafeteria & Restaurant Workers Union, Local 473 v. McElroy , 367 U.S. 886, 898 (1961) (recognizing that the government cannot deny employment because of previous membership in a particular political party) . This is true even where the person has no contractual or property right in the benefit withheld. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 285 (1977) (holding that an untenured public school teacher may not be discharged if he shows that constitutionally protected conduct was a "substantial" or "motivating" factor in the decision not to rehire him and the employer fails to demonstrate that it would have reached the same decision even in the absence of the protected conduct); Perry v. Sindermann , 408 U.S. 593, 599 (1972) (holding that an untenured teacher's lack of formal contractual or tenure security in his job was irrelevant to his First Amendment claim that his employer, a state college, refused to renew his contract because of his protected speech).

FindLaw: KALKSA v HAWK (2000)

[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

U.S. DC Circuit Court of Appeals, June 23, 2000, No. 98-5485, Kalka, v. Hawk, et al., Appeal from the United States District Court for the District of Columbia (97cv02259)

Randolph, Circuit Judge: Ben Kalka was a federal prisoner. After his conviction in 1991, he was incarcerated in seven different Federal Correctional Institutions ("FCIs"). Kalka claims to be a long-time member of the American Humanism Association ("AHA"). He alleges that at six of the prisons, he attempted to form "humanist groups within the chapels of the prisons they maintain," Complaint at 12, but with one exception, the wardens refused to recognize humanism as a religion and therefore turned him down.(1) Acting pro se, Kalka brought this action for an injunction and damages against officials of the Bureau of Prisons, claiming that they had violated and were still violating the religion clauses of the First Amendment. We affirm the district court's grant of summary judgment in favor of the defendants.


And so we must ask whether the type of humanism to which Kalka allegedly subscribes, if a religion, was a clearly established "religion" within the First Amendment's meaning.

We may start by observing that traditional notions of religion surely would not include humanism. " [T]he term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will." Davis v. Beason, 133 U.S. 333, 342 (1890); see Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056, 1065 n.60 (1978).

But in a draft-exemption case during the Vietnam war, the Supreme Court interpreted the statutory language "in a relation to a Supreme Being" to include a belief "which occupies in the life of its possessor a place parallel to that filled by the God" of other traditional religions, but to exclude "essentially political, sociological, or philosophical views." United States v. Seeger, 380 U.S. 163, 165, 176 (1965).

Justice Harlan joined the Seeger opinion with the "gravest misgivings," and later concluded that the Court's statutory construction had not been legitimate. Welsh v. United States, 398 U.S. 333, 345 (1970).

Whether Seeger meant to define "religion" as used in the First Amendment is doubtful. Instead of discussing the history of the First Amendment, the Court there discussed the history of the draft. Furthermore, the Court did not even cite the constitutional interpretation of religion expressed in Torcaso v. Watkins, 367 U.S. 488, 489-90 (1961); and it did not explain in what respect an individual's beliefs must be parallel to the beliefs of conventional religious faiths (in fervency of beliefs? in an overarching world vision? in explaining the meaning of life or our place in the universe? in believing in powers beyond the ken of science or pure reason?).

In Torcaso, the Court struck down a Maryland law requiring notaries to declare their belief in God as a condition to holding office. States may not, the Court said, "aid all religions against non-believers," or "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Id. at 495. To this last statement, which signified that "religion" did not necessarily entail a belief in God, the Court attached a 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. See Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47. Id. at 495 n.11.

Buddhism and Taoism are well established Eastern religions. "The other two examples given by the Court refer to explicitly non-Theist organized groups, discussed in cases cited in the footnote, that were found to be religious for tax exemption purposes primarily because of their organizational similarity to traditional American church groups." Malnak v. Yogi, 592 F.2d 197, 206 (3d Cir. 1978) (Adams, J., concurring).

"Ethical Culture" referred to the beliefs of the Washington Ethical Society, an organization that held regular Sunday services with Bible reading, sermons, singing and meditation, and had "leaders" who preached and ministered to the group's members. See Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127, 128 (D.C. Cir. 1957).

The Society was held entitled to a tax exemption as a religious corporation even though its members were not required to believe in a Supreme Being or a supernatural power. See id. at 129.

In Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 674 (1957), the second case cited in Torcaso, an organization of Secular Humanists sought a tax exemption on the ground that they used their property "solely and exclusively for religious worship." Despite the group's non-theistic beliefs, the court determined that the activities of the Fellowship of Humanity, which included weekly Sunday meetings, were analogous to the activities of theistic churches and thus entitled to an exemption. See id. at 697.

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 Court offered no test for determining what system of beliefs qualified as 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. See Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1537 (9th Cir. 1985) (Canby, J., concurring) (quoting Malnak, 592 F.2d at 206, 212).

See also Alvarado v. City of San Jose, 94 F.3d 1223, 1228 & n.2 (9th Cir. 1996) (citing cases supporting the limited scope of the Torcaso footnote); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994) ("[N]either the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are 'religions' for Establishment Clause purposes.").

A reasonable prison official would not have believed that excluding Kalka's humanism from the prison's Religious Services Program was unlawful. See Kimberlin v. Quinlan, 199 F.3d 496, 503 (D.C. Cir. 1999). There was neither precedent declaring humanism in general to be a religion nor any prior ruling on the religious nature of Kalka's beliefs. Information considered by the Religious Issues Committee suggested that the American Humanism Association's precepts were rooted in philosophy not religion. See supra pp. 4-5. Given the judiciary's exceedingly vague guidance, in the face of a complex and novel question, the actions of the defendants therefore did not violate "clearly established" law.


FindLaw: DEHART v. HORN, PRICE (2000)

[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

A case from the Supreme Court may help to illustrate the distinction that we here posit. In Cruz v. Beto , 405 U.S. 319 (1972) (per curiam), the plaintiff inmate was Buddhist. He complained that adherents of other religions were permitted to exercise their religious faiths in ways that he was not. Allegedly, the prison encouraged participation in other religious programs but discouraged the practice of Buddhism. The plaintiff's complaint was dismissed for failure to state a claim. The Supreme Court reversed, observing:

If Cruz was a Buddhist and if he was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the State against the Buddhist religion. . . .

The First Amendment, applicable to the States by reason of the Fourteenth Amendment, Torcaso v. Watkins, 367 U.S. 488, 492-493 [(1961)], prohibits government from making a law "prohibiting the free exercise" of religion. If the allegations of this complaint are assumed to be true, as they must be on the motion to dismiss, Texas has violated the First and Fourteenth Amendments. Id. at 322.

The Court then added the following footnote:

We do not suggest, of course, that every religious sect or group within a prison — however few in number--must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regarded to the extent of the demand. But reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty. Id. at 322 n.2.

FindLaw: LINNEMEIR, DAN v. BIRCK, MICHAEL J. (August, 2001)

[references to secular humanism, Torcaso v Watkins, Religion of Humanism, etc, in the dicta/reasoning/rationale of the opinion]

The contention that the First Amendment forbids a state university to provide a venue for the expression of views antagonistic to conventional Christian beliefs is absurd. It would imply that teachers in state universities could not teach important works by Voltaire, Hobbes, Hume, Darwin, Mill, Marx, Nietzsche, Freud, Yeats, Heidegger, Sartre, Camus, John Dewey, and countless other staples of Western culture. It is true that a public university that had a policy of promoting atheism, or Satanism, or secular humanism, or for that matter Unitarianism or Buddhism, would be violating the religion clauses of the First Amendment. County of Allegheny v. ACLU, 492 U.S. 573, 610-11 (1989); School District of Abington Township v. Schempp, 374 U.S. 203, 225 (1963); Torcaso v. Watkins, 367 U.S. 488, 495 n. 11 (1961); Brooks v. City of Oak Ridge, 222 F.3d 259, 266 (6th Cir. 2000); Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1279 (10th Cir. 1996); Edwards v. Aguillard, 482 U.S. 578, 635 n. 6 (1981) (dissenting opinion). But that is not charged; and so the controlling principle is that the amendment "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma . . . . '[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them.'" Epperson v. Arkansas, 393 U.S. 97, 106-07 (1968), quoting Burstyn, Inc. v. Wilson, 343 U.S. 495, 505 (1952). "It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine." Id. The student whose project it is to produce Corpus Christi to satisfy the requirements of his major is of course not an employee of the university, let alone a part of its management; he was not told to put on this offensive play-- it was his own idea; and there is no evidence that if the play attacked some other religion, the university authorities would have forbidden it. In short, there is no evide nce that the university is hostile to Christianity.

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