Re: [asa] 7th Circuit Decision

From: PvM <>
Date: Sun Jun 17 2007 - 14:35:21 EDT

Yes, jurisprudence in this area is quite difficult and when reading
decisions one has to make various distinctions lest one runs the risk
of misunderstanding what the court actually said.

As I have shown, the term 'religion' is defined to include religion
and non-religion for the purpose of the first amendment. In other
words, quoting from the actual decision we read

<quote>The Supreme Court has recognized atheism as equivalent to a
"religion" for purposes of the First Amendment on numerous occasions,
most recently in McCreary County, Ky. v. American Civil Liberties
Union of Ky., 125 S.Ct. 2722 (2005). The Establishment Clause itself
says only that
"Congress shall make no law respecting an establishment of religion,"
but the Court understands the reference to religion to include what
it often calls "nonreligion."</quote>

In other words, religion includes for this purpose also nonreligion.
Understanding what the courts are really saying is a non trivial
matter as one has to distinguish between dicta and non-dicta, and
specific definitions for the purpose of the ruling only.

Your original argument was that

I could post the relevant (establishment clause) parts of it here if
you like. It would have to be a series. It actually says that
government agencies don't have the right to ban religious ideas, BTW.
 It reinforces the idea that ideas pertaining to "ultimate" questions
 are protected, (getting that from previous case).

but as I showed,

Your reading of Kaufman seems to be flawed as it did not rule that the
government agencies have no right to ban religious ideas but rather
that because the prison allowed the gatherings of religious people, it
violated the establishment clause when it failed to show that

<quote>... letting an atheistic study group to meet would pose any
greater security risk than would letting members of other religious
organizations to meet.8 The court therefore vacated the summary
judgment in favor of the defendants and remanded back to the trial
court for further proceedings.</quote>

I see little support for David (Clounch's) original thesis in Kaufman.

Perhaps David C can explain to us what he believes this ruling (and
others) mean when it comes for instance to Intelligent Design?

Speaking of Intelligent Design, the Council of the European Union has
released the following working document
 on intelligent design creationism.


The theory of evolution is being attacked by religious fundamentalists
who call for creationist theories to be taught in European schools
alongside or even in place of it. From a scientific view point there
is absolutely no doubt that evolution is a central theory for our
understanding of the Universe and of life on Earth.

Creationism in any of its forms, such as "intelligent design", is not
based on facts, does not use any scientific reasoning and its contents
are pathetically inadequate for science classes.

The Assembly calls on education authorities in member States to
promote scientific knowledge and the teaching of evolution and to
oppose firmly any attempts at teaching creationism as a scientific

On 6/17/07, David Opderbeck <> wrote:
> Establishment clause jurisprudence is notoriously difficult. While cases
> like Kaufman hold that atheism is a "religion" under the first amendment,
> another line of cases suggests that a "religion" must involve at least some
> practices that are traditional indicia of "religion," such as ceremonies and
> prayer. See Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (Adams, J.,
> concurring). Altman v. Bedford Cent. School Dist. , 245 F.3d 49 (2d Cir.
> 2001); Wiggins v. Sargent, 753 F.2d 663 (8th Cir. 2000); Carpenter v.
> Wilkinson, 946 F. Supp. 552 (6th Cir. 1996); Alvarado v. City of San Jose ,
> 94 F.2d 1223 (9th Cir. 1996); U.S. v. Meyers, 847 F.2d 1408 (10th Cir.
> 1991); Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986); Africa v.
> Pennsylvania , 662 F.2d 1025 (3d Cir. 1981); U.S. v. Dykema, 666 F.2d 1096
> (7th Cir. 1981); Udey v. Kastner, 644 F. Supp. 1441 (E.D. Tex. 1986).
> For a brief but thorough paper criticizing the Kaufman holding, see:
> Thus, the issue of whether atheism is a "religion" under the first amendment
> is unsettled. It seems that courts are sometimes willing to consider
> atheism or "non-belief" a sort of "religion" for purposes of "protecting"
> atheists against intrusions into the public square by theists, but are
> usually less willing to consider atheism a "religion" when theists argue
> that removing theistic speech from the public square creates a vacuum that
> gets filled with the "religion" of atheism. (On this, see Richard John
> Neuhaus, The Naked Public Square).

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Received on Sun Jun 17 14:35:47 2007

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