WHOSE FIRST AMENDMENT IS IT, ANYWAY?" CIRCUIT COURT RULES FOR PRISON
INMATE'S GROUP, ATHEISM A RELIGION

Web Posted: August 28, 2005
http://www.atheists.org/flash.line/court36.htm

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Is Atheism a Religion? by Mike Newdow

There is a diagram with the following article which is helpful in
understand his point so to see that

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Sermon #4 on February 20, 2003 - Is Atheism a Religion

Is Atheism a Religion?
by Mike Newdow

One of the issues that arises at times is the question of Atheism as a
religion. Many adamantly oppose that classification, arguing that Atheism
is an explicit denial of religion. Others claim Atheism should be
considered as a religion just like Christianity, Judaism, Islam and the
rest. Upon reflection, it would appear that the difficulty lies not in
what
the various camps believe about Atheism, but in the definitions used when
referring to "religion."

In the dictionary, the most common definition of religion is something
like, "the service and worship of God or the supernatural." By this
definition, Atheism is clearly not a religion. However, the United States
Supreme Court has repeatedly stated that Atheism warrants the same
protection as all other religions, and has spoken of "religions based on a
belief in the existence of God [and] religions founded on different
beliefs." This, obviously, contradicts the main dictionary definition.

Additionally, there is "religion" as a sense of morality, as in "ree has
religion." This is similar to the use of the adjective form of the word:
religious. If someone is described as "religious," one usually thinks of
erm as a person who goes to church to worship some almighty power. But
"religious" also has the definition of "passionate" or "zealous," and
"scrupulous," as well. This variability in definitions is the problem in
the "Is Atheism a religion?" question.

To clarify this issue, these three different definitions must be carefully
kept in mind as the matter is discussed, since any lack of rigor in
maintaining them as separate entities will lead to confusion and
disagreement. Additionally, under the American Constitution, failing to
strictly segregate these definitions may result in the loss of basic legal
protections. Finally, if ending the prejudices that exist against Atheists
is a goal, the sliding between definitions (which occurs quite often) must
be avoided.

As just recognized, Atheism is obviously not a religion under Definition
#1 ("D1"), i.e., where "religion" requires worship of God. Thus, those who
wish to specifically highlight the fact that they place no credence in
unproven notions of supernatural forces are somewhat offended - and
rightfully so - when others classify them as "religious" under this
definition. "Atheism is not a religion, and we are not religious!" they
emphasize. But that sets them up for denigration, as D3 is unwittingly
brought in by those raised to believe that Atheists are "bad." "Look -
they
have no religion." (D1). So they're clearly evil (since "they have no
religion." (D3))." This is a very real problem, often exacerbated by the
"morality comes from God" dogma of many Monotheists. It's bad enough that
those people think that theirs is the only plausible view. When the
Atheists admit they have no religion (D3), it makes it worse.

Of course, Atheists are not admitting they have no D3-religion. On the
contrary, Atheists - like (all) "religious" individuals - believe their
morality is superior. In the Atheist's view, they have the "truth" that
the
D1-religious lack. But by using the same word, "religion," to represent
these two very different ideas - i.e., morality as opposed to belief in
God
- the debate goes nowhere.

The same confusion arises in the legal context. This was readily seen
during the oral argument in Locke v. Davey, the Supreme Court case heard
in
the Court's 2003-2004 term. That case involved the State of Washington's
decision to prohibit disbursement of state scholarship moneys to students
who choose theology majors, while funding everyone else. The Court seemed
to struggle with the fact that it has already decided that the government
is forbidden from treating people differently on the basis of religion .
including religion versus non-religion. The problem is that the "religion
versus non-religion" distinction is prohibited only in D1-religion. In
D2-religion, the exact opposite is the case; government is required to
discriminate between religion and non-religion.

D2-religion is that realm of opinion and knowledge that has to do with
D1-religion, regardless of whether or not there is a belief in some deity.
In other words, anything that has to do with basic questions of human
relations, the meaning of life, the beginning of the universe, etc. - when
related to the concept of some higher power (whether or not that higher
power is believed in) - is D2-religion. And this entire subject is what
the
United States Constitution sets apart in its First Amendment. Thus,
whereas
James Madison successfully blocked Patrick Henry's Bill for Establishing a
Provision for Teachers of the Christian Religion, he wouldn't have blocked
a Bill for Establishing a Provision for Teachers of Mathematics, of Art
History, of Geology or of any other non-"religious" topic.

This may be elucidated best with set theory. There is the big set - all
human opinion and knowledge. Within that, there is a subset of opinion and
knowledge that is related to the supernatural . whether it is believed or
not. This subset (D2-religion) is what the Religion Clauses require the
government to treat differently from all other opinion and knowledge
matters. However, within that subset are sub-subsets, including the one
that accepts the existence of an "Almighty" (D1-religion), and the one
that
denies such an entity. It is the differential treatment (by government) of
those sub-subsets that the Establishment and Free Exercise Clauses forbid.

Thus, Locke v. Davey is really an easy case. Treating theology majors
differently from non-theology majors is precisely what the First Amendment
presupposes, just as Madison treated Teachers of the Christian Religion in
a manner unlike teachers of any non-D2-religion subject. Washington State
may not give money to majors in Atheism while denying money to majors in
Monotheism. That would be a D1-religion problem, where government is
prohibited from making distinctions. But Washington not only can - but
must
(under the Federal Constitution) - discriminate in terms of D2-religion.

In summary, then, if one is asking if Atheists believe in supernatural
powers, the answer is, "No - Atheism is not a D1-religion." If one is
asking if Atheists should be protected by the Constitution, the answer is,
"Yes, Atheism is a D2-religion." And if one is asking whether Atheists can
be moral, the answer will depend upon the participants' D1-religious
views.
If an individual contends that belief in God is a requirement for a person
to have D3-religion, the answer will be "no." If that person accepts that
morality is a human quality, that needs no supernatural approval, the
answer is "yes."
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:| EQUAL TIME FOR NEWDOW
:|
:|

* DR. MICHAEL NEWDOW writes:

"I think that the decision was 100% correct, and I fear that the
response of those who try to assert that Atheism is not a religion can
only backfire.
I don't understand the purpose of taking that view.

"The Constitution treats religious belief different than other types of
belief. By claiming they don't adhere to a religion -- for
constitutional purposes -- they are essentially acknowledging that they
are to be excluded from the protections given to individuals for
their religious (as opposed to all other) opinion.

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Additional food for thought

IDLEMANBOOK 3/18/2005 7:43 PM
THE CONCEALMENT OF RELIGIOUS VALUES
IN JUDICIAL DECISIONMAKING
Scott C. Idleman*


http://www.virginialawreview.org/content/pdfs/91/515.pdf
16 See Bd. of Educ. v. Grumet, 512 U.S. 687, 696 (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 others nor religious adherents collectively over
nonadherents." (quoting Comm. for Pub. Educ. & Religious Liberty v.
Nyquist, 413 U.S. 756, 792-93 (1973))). 17 See id. at 703 (invalidating a
special legislative act in part because "[t]he anomalously case-specific
nature of the legislature's exercise of state authority . . . leaves the
Court without any direct way to review such state action for the purpose
of
safeguarding a principle at the heart of the Establishment Clause, that
government should not prefer one religion to another, or religion to
irreligion").

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THOMAS VAN ORDEN, PETITIONER v. RICK PERRY, in his official capacity as
GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION
BOARD, et al.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-1500
on writ of certiorari to the united states court of appeals for the fifth
circuit

[June 27, 2005]

Justice Stevens, with whom Justice Ginsburg joins, dissenting.

("The simultaneous endorsement of Judaism and Christianity is no less
constitutionally infirm than the endorsement of Christianity alone"). And,
at the very least, the text of the Ten Commandments impermissibly commands
a preference for religion over irreligion. See, e.g., id., at 590 (The
Establishment Clause "guarantee[s] religious liberty and equality to the
'infidel, the atheist, or the adherent of a non-Christian faith such as
Islam or Judaism' " (quoting Wallace, 472 U. S., at 52)). Any of those
bases, in my judgment, would be sufficient to conclude that the message
should not be proclaimed by the State of Texas on a permanent monument at
the seat of its government.

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http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=98-1648

GUY MITCHELL, et al., PETITIONERS v. MARY L. HELMS et al.

on writ of certiorari to the united states court of
appeals for the fifth circuit

[June 28, 2000]

Justice Souter, with whom Justice Stevens and Justice Ginsburg join,
dissenting.

The First Amendment's Establishment Clause prohibits Congress (and, by
incorporation, the States) from making any law respecting an establishment
of religion. It has been held to prohibit not only the institution of an
official church, but any government act favoring religion, a particular
religion, or for that matter irreligion. Thus it bars the use of public
funds for religious aid.

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http://www.firstamendmentcenter.org/analysis.aspx?id=15012

Clement replied that states already accommodate mainstream religions.
RLUIPA, he said, merely extends that accommodation to minority religions.
"If there is any incentive, it is for religion over irreligion."

Chief Justice William Rehnquist, on the bench for the first time in five
months, asked Clement, "Haven't we said you can't favor religion over
irreligion?"

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http://www.ffrf.org/news/2005/10comm.php

Scalia (Kentucky dissent):

"And of course the First Amendment itself accords religion (and no other
manner of belief) special constitutional protection."

"[It is a] demonstrably false principle that the government cannot favor
religion over irreligion."

"With respect to public acknowledgment of religious belief, it is entirely
clear from our Nation's historical practices that the Establishment Clause
permits this disregard of polytheists and believers in unconcerned
deities,
just as it permits the disregard of devout atheists."

"[The majority opinion] rachets up the Court's hostility to religion."

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http://members.tripod.com/~candst/freefrom.htm

The day that this country ceases to be free for irreligion, it will
cease to be free for religion-- except for the sect that can win political
power. The same epithetical jurisprudence used by the Court today to beat
down those who oppose pressuring children into some religion can devise as
good epithets tomorrow against those who object to pressuring them into a
favored religion. And, after all, if we concede to the State power and
wisdom to single out "duly constituted religious" bodies as exclusive
alternatives for compulsory secular instruction, it would be logical to
also uphold the power and wisdom to choose the true faith among those
"duly
constituted." We start down a rough road when we begin to mix compulsory
public education with compulsory godliness.

Jackson, J., Dissenting Opinion Zorach v. Clauson, 343 U.S. 306 (1952)
---------------------------------------------------------------------
Some have challenged this precedent by reading the Establishment
Clause to permit "nonpreferential" state promotion of religion. The
challengers argue that, as originally understood by the Framers, "[t]he
Establishment Clause did not require government neutrality between
religion
and irreligion, nor did it prohibit the Federal Government from providing
nondiscriminatory aid to religion." Wallace, supra, at 106 (Rehnquist, J.,
dissenting); see also R. Cord, Separation of Church and State: Historical
Fact and Current Fiction (1988). While a case has been made for this
position, it is not so convincing as to warrant reconsideration of our
settled law; indeed, I find in the history of the Clause's textual
development a more powerful argument supporting the Court's jurisprudence
following Everson.

Justice Blackmun, with whom Justice Stevens and Justice O'Connor join,
concurring.
Lee v. Weisman, 505 U.S. 577 (1992)
------------------------------------------------
The First Amendment's Establishment Clause prohibits Congress (and, by
incorporation, the States) from making any law respecting an establishment
of religion. It has been held to prohibit not only the institution of an
official church, but any government act favoring religion, a particular
religion, or for that matter irreligion. Thus it bars the use of public
funds for religious aid.

[omission]

And if this were not enough to prove that no aid in religious school
aid is dead under the plurality's First Amendment, the point is nailed
down
in the plurality's attack on the legitimacy of considering a school's
pervasively sectarian character when judging whether aid to the school is
likely to aid its religious mission. Ante, at 27-31. The relevance of this
consideration is simply a matter of common sense: where religious
indoctrination pervades school activities of children and adolescents, it
takes great care to be able to aid the school without supporting the
doctrinal effort. This is obvious. The plurality nonetheless condemns any
enquiry into the pervasiveness of doctrinal content as a remnant of
anti-Catholic bigotry (as if evangelical Protestant schools and Orthodox
Jewish yeshivas were never pervasively sectarian [29] ), and it equates a
refusal to aid religious schools with hostility to religion (as if aid to
religious teaching were not opposed in this very case by at least one
religious respondent [30] and numerous religious amici curiae [31] in a
tradition claiming descent from Roger Williams). My concern with these
arguments goes not so much to their details [32] as it does to the fact
that the plurality's choice to employ imputations of bigotry and
irreligion
as terms in the Court's debate makes one point clear: that in rejecting
the
principle of no aid to a school's religious mission the plurality is
attacking the most fundamental assumption underlying the Establishment
Clause, that government can in fact operate with neutrality in its
relation
to religion. I believe that it can, and so respectfully dissent.

Footnote 29

Indeed, one group of amici curiae, which consists of "religious and
educational leaders from a broad range of both Eastern and Western
religious traditions, and Methodist, Jewish and Seventh-day Adventist
individuals" including "church administrators, administrators of religious
elementary and secondary school systems; elementary and secondary school
teachers at religious schools; and pastors and laity who serve on church
school boards," identifies its members as having "broad experience
teaching
in and administering pervasively sectarian schools." Brief for Interfaith
Religious Liberty Foundation et al. as Amici Curiae 1.

Footnote 30

One of the respondents describes herself as a "life-long, committed
member of the Roman Catholic Church" who "objects to the government
providing benefits to her parish school" because "[s]he has seen the
chilling effect such entangling government aid has on the religious
mission
of schools run by her church." Brief for Respondents 1. She has been a
member of the church for about 36 years, and six of her children attended
different Jefferson Parish Catholic run schools. Id., at 1, n. 1.

Footnote 31

E.g., Brief for Baptist Joint Committee on Public Affairs as Amicus
Curiae; Brief for Interfaith Religious Liberty Foundation et al. as Amici
Curiae; Brief for National Committee for Public Education et al. as Amici
Curiae.

Footnote 32

I do not think it worthwhile to comment at length, for example, on the
plurality's clear misunderstanding of our access-to-public-forum cases,
such as Lamb's Chapel and Widmar v. Vincent, 454 U. S. 263 (1981), as
"decisions that have prohibited governments from discriminating in the
distribution of public benefits based on religious status or sincerity,"
ante, at 30, when they were decided on completely different and narrowly
limited free-speech grounds. Nor would it be worthwhile here to engage in
extended discussion of why the goal of preventing courts from having to
"trol[l] through a person's or institution's religious beliefs," ante, at
30, calls for less aid and commingling of government with religion, not
for
tolerance of their effects.

Justice Souter, with whom Justice Stevens and Justice Ginsburg join,
dissenting.
Mitchell, v. Helms [June 28, 2000]

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http://en.wikipedia.org/wiki/Establishment_Clause_of_the_First_Amendment

(For example, in the Board of Education of Kiryas Joel Village School
District v. Grumet, Justice David Souter concluded that "government should
not prefer one religion to another, or religion to irreligion."). Critics
of this interpretation argue that it effectively changes the Constitution
in a way never contemplated by the founders. However, this is a
controversial and evolving area of