ABSTRACT: Is the belief in nothing (atheism) actually a belief in something (theism). SCOTUS has made several definitive decisions; unfortunately, many of the lower courts that hear the arguments for/against the teachings of evolution/creationism/Intelligent Design seem to not have read those opinions. So let’s explore the ramifications of these decisions.
In School District of Abington Township v. Schempp, the U.S. Supreme Court recognized that “the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.” Government advancement of nontheistic or atheistic religious viewpoints would thus presumably be subject to the same limitations of the Establishment Clause as the prohibition against endorsing traditional theistic religious viewpoints. Indeed, the Supreme Court has held that non-theistic viewpoints can qualify as religious when they “occupy the same place in [a person’s] life as the belief in a traditional deity holds,” occupy . . . ‘a place parallel to that filled by God’ in traditional religious persons,” or comprise “an aspect of human thought and action which profoundly relates the life of man to the world in which he lives.” In one case, the Court listed “Secular Humanism” as a religious viewpoint.
Importantly, the widely used Lemon test requires that “principal or primary effect” of a government policy “must be one that neither advances nor inhibits religion.”In other words, if the government starts endorsing atheists who are bashing religion, then that could violate the Establishment Clause.
In 2005, the Supreme Court reiterated its view that religion should not be defined narrowly,  and the Seventh Circuit likewise observed that “the Court has adopted a broad definition of ‘religion’ that includes non-theistic and atheistic beliefs, as well as theistic ones.” The Seventh Circuit went on to note that “[t]he Supreme Court has recognized atheism as equivalent to a ‘religion’ for purposes of the First Amendment on numerous occasions[.] . . .”9 Earlier, the Seventh Circuit had observed that “[i]f we think of religion as taking a position on divinity, then atheism is indeed a form of religion.” Thus, atheism can be a religion for the purpose of constitutional analysis.
In analyzing the controversy over teaching origins in a public school it becomes necessary to address a more fundamental question: What is religion? The question is important for the Constitution permits only limited intrusion by the public school into the “religious sphere:”“[T]he Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact.” [Gillette v. U.S., 401 U.S. 437, 450 (1971)].
The meaning of religion becomes critical at this point because it determines the meaning of “secular” by default. “Secular” then simply means “not religious.” Thus, the scope of the “secular” sphere arises by default, based on the scope of the religious sphere. It is critically important for the Government to know the boundaries of the secular sphere. The constitution allows the government to promote ideas and activities without restraint in that sphere, but not in the religious sphere. Indeed, it must have a “secular” purpose to even enter the religious sphere.
So this brings up the important question of how can one know if the purpose being considered is secular if one does not know the meaning of religion?
In the last sixty years the Supreme Court and other courts have recognized that a number of non-theistic belief systems function in the lives of their adherents in the same manner as traditional theism functions in the lives of its adherents. To ensure that the First Amendment satisfies its non-discriminatory purpose the courts have recognized that these functional equivalents are just as religious as the views of traditional theists. Hence the courts have embraced an inclusive definition that is not confined to just belief in God, but rather includes beliefs about God and other “matters of ultimate concern.”
This was explained by the Supreme Court in a 1992 opinion holding that government cannot prefer “theistic over nontheistic religion,” and that the “settled law” is that the “Clause applies ‘to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker’” [Lee v. Weisman, 1992] The Court has also recognized that “Secular” Humanism is a non-theistic religion. (see my posting at: https://larryemarshall.wordpress.com/2014/07/12/7-reasons-why-atheism-is-a-religion/ ). According to the Humanist Manifesto, adherents to the faith include Atheists, Freethinkers, Agnostics, Skeptics, Deists, and other “liberal religions.”
Although the boundary between the religious and secular have not been defined with absolute precision, the cases, taken as a whole, indicate generally that religion is an organized set of beliefs about the cause, nature and purpose of life. It is a belief system that “profoundly relates the life of man to the world in which he lives” [McGowan v. Maryland, 1961]. Traditional theists relate life to the world through a creator of both while non-theists view life as simply arising from the world without the guiding hand of an intervening Deity.
So SCOTUS and various appeals courts HAVE determined what constitutes religion in a variety of cases. So why does certain lower courts tend to ignore the legal definition and use the popular one instead.
Kitzmiller v. Dover Area School District (W.D. Penn 2005) illustrates the importance of the definition of
religion. In that case Judge John Jones used the popular rather than legal definition of religion in assessing the religious effect of a new school policy on teaching origins. The Policy was “to advise students of gaps/problems in Darwin’s theory and of other theories of evolution, including, but not limited to intelligent design.” According to the Court this “ID Policy” caused the state to enter the religious sphere and thereby endorse “religion,” defined as just belief in God or the supernatural.
The Article shows that if Judge Jones had employed the legal definition previously employed by the Supreme Court and his Third Circuit peers, the result would have been different. He and his hypothetical “objective observer” would have immediately recognized that the school had already entered the religious sphere when it chose to discuss with students religious subject matter – the cause of life and how life is related to the world in which it is lived. Furthermore, since the existing curriculum permitted students to be shown only a materialistic natural cause explanation of that relationship, it was not “evenhanded in operation, and neutral in primary impact.” Given these existing circumstances, the court should have found that the ID Policy was not only legal, but also necessary to permit the state to continue to address that religiously charged subject in a manner that was “evenhanded in operation, and neutral in primary impact.”
Why this is a problem:
First, creationism has been firmly deemed a religious viewpoint by multiple courts, but teaching ID in public schools has only been addressed by one federal trial court, and ID proponents consider ID to be scientific and thereby constitutional for both advocacy and critique in public schools. Critics allege that both ID and creationism are religious viewpoints, and they oppose the advocacy of both views in public schools. But evolutionists—who strongly hold ID is religion—ignore the First Amendment’s prohibition on inhibiting, disapproving, or opposing religion by actively supporting attacks on ID and creationism in public schools.
Second, evolutionists purport to oppose advocating religious viewpoints in public schools, but leading lobbyists for evolution education unashamedly advocate that public school teachers endorse and advocate pro-evolution theistic religious viewpoints in science classrooms to help students accept evolution.
Third, many textbooks used in public schools promote evolution along with philosophical materialism, preferring non-theistic or atheistic religious viewpoints over theistic religious viewpoints. This constitutes government preference for various non-theistic or atheistic religious viewpoints that support evolution in opposition to religious viewpoints that do not support evolution.
 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (citations and internal quotation marks omitted) (explaining that a secular education is not per se unconstitutional).
 United States v. Seeger, 380 U.S. 163, 187 (1965).
 Welsh v. United States, 398 U.S. 333, 340 (1970).
 McGowan v. Maryland, 366 U.S. 420, 461 (1961).
 Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961).
 The 3 components of the lemon test: The government’s action must have a secular legislative purpose;The government’s action must not have the primary effect of either advancing or inhibiting religion;The government’s action must not result in an “excessive government entanglement” with religion. “If any of these three prongs are violated, the government’s action is deemed ‘unconstitutional’…” Lemon v. Kurtzman 1971
 Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961).
 Smith v.Bd. of Sch. Comm’rs of Mobile County, 827 F.2d 684, 690, 692 (11th Cir. 1987) (equating “inhibiting religion” with exhibiting “an attitude antagonistic to theistic belief” or attempting to “discredit it”).
 Kaufman v. McCaughtry, 419 F.3d 678, 682 (7th Cir. 2005).
 Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003).