"Our cases interpreting and applying the [religious] purpose test [to legislation] have made such a maze of the Establishment Clause that even the most conscientious governmental officials can only guess what motives will be held unconstitutional."

Justice Antonin Scalia, Dissent in Edwards v. Aguillard 107 S. Ct. 2573

Congratulations to all of you on your election to the School Board! I'm the attorney for the school system, and I'd like to welcome you to what I'm sure will be an interesting first meeting. I was delighted to learn that you've all just completed a course of study of Abusing Purpose, and you've been reexamining your views on religion, science and public education. You'll certainly need a clear head on these matters because we have several petitions from parents and employees that concern these matters directly. That's why Superintendent Boinkles, who's away at a three-week conference in Belize, has asked me to attend this meeting.

Before we get down to business, I thought that you might enjoy reading over a couple of court decisions that talk about the definition of religion in our legal system. I'll just pass them out, and you can read them over after the meeting.

[As a courtesy to the reader of these minutes, excerpts from these decisions are appended.]

Let's get started with the business of this meeting. The first petition concerns prayer in the schools. It has verified signatures from 95% of the parents in the district, and asks that each day, each class begin with recitation of a non-demoninational prayer asking the Supreme Being for guidance in the day's activities. I think that we can deal with this quickly. The US Supreme Court has ruled that such an activity is a clear breach of the constitutional doctrine of separation of church and state. So you can say to the parents and voters that, however much you would have liked to comply with their well-intentioned wishes, the inevitable law suit would be very expensive and the district would certainly lose. Is that alright with all of you? Yes? Good.

Is there a question? Could we rewrite the prayer to delete reference to "the Supreme Being" to accommodate the polytheists among us? I suppose so, but then there are the animists, the secular humanists, the atheists, and the Extreme Physicalist Reductionists (some of whom feel very strongly about the dispensability of purpose-directed explanation - I've seen their protest marches). If we dilute the prayer enough to satisfy everyone, we'd be reduced to something like, "We ask guidance (or we don't) from some purposive being or beings (or not)," and I'm not sure that such an invocation would contribute much to the development of our children's moral character. Arguably, it'd be a waste of school time. Can we move on now?

Our second petition is submitted by 5% of the parents and science teachers. They want included in every science course that discusses evolutionary theory a theory they call "Scientific Creationism," according to which the universe was created suddenly out of nothing; there has been no change in the kinds of living things on Earth since creation; there was a Great Flood that ordered the fossil record; and the universe is less than 20,000 years old. This is a pretty easy case, too, since the US Supreme Court has found this is nothing but religion masquerading as science and so violates the constitutional doctrine of separation of church and state. Same story for the voters - though there are far fewer voters to worry about in this instance.

Our third petition presents a novel situation, on which the law and court cases give us far less guidance. About half of the parents and science teachers want the science curriculum, including, of course, biology courses where evolutionary theory is discussed, to cover the similarities and differences between purpose-directed explanation as it is deployed in Satanic Science, in Arguments from Design for the existence of deities and in purpose-directed explanation as it is deployed in biology, psychology and physics. The other half say this is smuggling religion into the science curriculum and that it will confuse students who are already having a tough time with the material they already have to cover. For a short time, there seemed to be a compromise in the making when a rather idealistic parent suggested that what should be avoided throughout education is indoctrination. The courts make it clear that government indoctrination of children in the tenets of a particular religion is against the law. But some teachers and parents pointed out that public schools feel an obligation to indoctrinate young children in the values of American democracy, and, even more obviously, in the truths of arithmetic. (It didn't help to point out that the latter are necessary, as opposed to contingent, truths, since many theists regard their fundamental beliefs, for example, that God exists, as necessary, too.) They've tried talking it out and coming to some other compromise, but with no success, and plenty of residual bad-feeling on both sides. One of the opponents to this expansion of the science curriculum claimed that the view of the Beknighted Half, as he uncharitably called them, has all the marks of pseudoscience. I'll read you his prepared statement, on which he obviously spent a lot of time.

"What the members of the Beknighted Half are trying to force on us in the Science Department is a system of statements and practices makes reference to uncontrolled, unobserved things, encourages selective expression of emotion, expresses an attitude of awe and wonder towards Nature, seeks to discover some moral truths, is based partly on faith, explains in terms of purposes and intentions, originated in ancient times, contains vague terms, focuses on phenomena for which there are no fully understood physical mechanisms, and has been misused by many evil people who were also utterly dogmatic in their attitudes towards it."

I'm sure that you realize that given this much information and no more, what's being described could be a respectable psychological theory, a mainline religion or pseudoscientific, pseudoreligious drivel. So even if all this is an apt description of the proposed curricular changes, it doesn't advance the debate.

Until I read Justice Scalia's dissent, I thought that one of the most recent Supreme Court decisions, Edwards v. Aguillard, might also guide us with this third petition. Having studied his dissent, I'm not so sure. The majority opinion was the one I relied on in advising you on the second petition, and our second situation is close enough to the one the court actually considered that I remain confident of my advice. But the third petition seems to present a significantly different situation since the role of religion in it is less prominent, so far as I can tell. One of the questions that Justice Scalia raised in my mind is, Just how deeply do we have to look into the motives of the petitioners? And anyway, why should their motives be relevant? No one - certainly not the courts - objects to teaching our children about, or having the government act on, (for example) religiously inspired Abolitionist objections to slavery. Nor is it always against the rules for the government to help religion out; for example, Justice Scalia writes, "few would contend that Title VII of the Civil Rights Act of 1964, which both forbids religious discrimination by private-sector employers ... and requires them reasonably to accommodate the religious practices of their employees, ... violates the Establishment Clause, even though its 'purpose' is, of course, to advance religion, and even though it is almost certainly not required by the Free Exercise Clause."

So this hot potato lands in the Board's collective lap. I'm really looking forward to your wise counsel on this one. Maybe you shouldn't wait to read those decisions that I passed out at the beginning of our meeting. Then again, maybe we should ignore them.

No, the Board doesn't usually take a break this early in its meetings. Yes, some meetings have run all night.

Appendix: Two Court Decisions on Defining Religion

I. Smith v. Board of School Commissioners of Mobile County 1987 (US District Court for the Southern District of Alabama, Southern Division 655 F.Supp. 939)

Judge Brevard Hand on religion and secular humanism:

For first amendment purposes, the commitment of humanists to a non-supernatural and non-transcendent analysis, even to the point of hostility towards and outright attacks on all theistic religions, prevents them from maintaining the fiction that this is a non-religious discipline. This Court is concerned with the logic and consistency, the rationality, one might say, of Dr. Kurtz's contention that secular humanism is not a religious system, but science. Secular humanism is religious for first amendment purposes because it makes statements based on faith-assumptions. To say that science is only concerned with data collected by the five senses as enhanced by technological devices of man's creation is to define science's limits. These are the parameters within which scientists function. However, to claim that there is nothing real beyond observable data is to make an assumption based not on science, but on faith, faith that observable data is all that is real. A statement that there is no transcendent or supernatural reality is a religious statement. A statement that there is no scientific proof of supernatural or transcendent reality is irrelevant and nonsensical, because inquiry into the fundamental nature of man and reality itself may not be confined solely within the sphere of physical, tangible, observable science. [NOTE: The fact that such inquiry can be, and often is, conducted by systematic and quantifiable methods does not make the inquiry itself one belonging to the physical sciences.]

To demand that there be physical proof of the supernatural, and to claim that an apparent lack of proof means the supernatural cannot be accepted, is to create a religious creed. It is not scientific to say that because there is no physical proof of the supernatural, we must base moral theories on disbelief and skepticism. [NOTE: In particular, morals are inevitably based on theories of man's nature and ideas about his purpose and destiny. As science does not inquire whether man has a supernatural nature or not, the foundation for a moral theory cannot be represented as having a scientific basis. Therefore, it is specious and false to represent as a scientific and non-religious statement the claim that "morals must not be based on supernatural beliefs."] If there is no evidence, the theory, one way or the other, has nothing to do with science. Religious persons can and do conduct rational and systematic debate on matters of faith. The physical sciences do not preclude religion and religious faith. They examine other areas of inquiry, and are unconcerned, yet compatible with, religious inquiry. [NOTE: Dr. Charles Rudder, a witness proffered by the State Board of Education testified that it was not rationally possible to "defend the claim that on the basis of what we know about the natural, we know anything about the supernatural or can draw any conclusions one way or another about the supernatural. It would appear to me that if the supernatural exists, we can be informed about the natural from the supernatural, but we can't inform ourselves about the supernatural from the natural....] The Court is holding that the promotion and advancement of a religious system occurs when one faith-theory is taught to the exclusion of others and this is prohibited by the first amendment religion clauses.

Dr. Kurtz's testimony that secular humanism has no religious aspect is not logical. For purposes of the first amendment, secular humanism is a religious belief system, entitled to the protections of, and subject to the prohibitions of, the religion clauses. It is not a mere scientific methodology that may be promoted and advanced in the public schools.

(The US Court of Appeals for the 11th Circuit, 827 F.2d 684, disagrees with Hand's characterization of secular humanism as a religion.)

II. US v. David Meyers (US Court of Appeals for the 10th Circuit 1996 U.S. App. LEXIS 23363 September 6, 1996, Filed)

There is no dispute that Meyers' beliefs are sincerely held and that they are substantially burdened by 21 U.S.C. @@ 841 and 846 and 18 U.S.C. @ 2. The issue is whether his sincerely held beliefs are "religious beliefs," rather than a philosophy or way of life. In analyzing this issue, the district court examined the cases that have delved into the question of "what is religion" and catalogued the many factors used to determine whether a set of beliefs is religious in nature. [NOTE omitted] Meyers, 906 F. Supp. at 1501. The court then used its list of factors to examine Meyers' beliefs to determine if his beliefs fit the factors sufficiently to be included in the realm of "religious beliefs

Keeping in mind that the threshold for establishing the religious nature of his beliefs is low, the court considered the following factors:

1. Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. As one court has put it, "a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters." .... These matters may include existential matters, such as man's sense of being; teleological matters, such as man's purpose in life; and cosmological matters, such as man's place in the universe. [See: Separation by Explanation, Separation by Fact and Value, discussion of Gilkey's criticism of Scientific Creationism]

2. Metaphysical Beliefs: Religious beliefs often are "metaphysical," that is, they address a reality which transcends the physical and immediately apparent world. Adherents to many religions believe that there is another dimension, place, mode, or temporality, and they often believe that these places are inhabited by spirits, souls, forces, deities, and other sorts of inchoate or intangible entities. [See: Separation by Immaterial Causation, Separation by Explanation, discussion of Gilkey's criticism of Scientific Creationism]

3. Moral or Ethical System: Religious beliefs often prescribe a particular manner of acting, or way of life, that is "moral" or "ethical." In other words, these beliefs often describe certain acts in normative terms, such as "right and wrong," "good and evil," or "just and unjust." The beliefs then proscribe those acts that are "wrong," "evil," or "unjust." A moral or ethical belief structure also may create duties -- duties often imposed by some higher power, force, or spirit -- that require the believer to abnegate elemental self-interest. [See: Separation by Fact and Value]

4. Comprehensiveness of Beliefs: Another hallmark of "religious" ideas is that they are comprehensive. More often than not, such beliefs provide a telos, an overreaching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or a single teaching. ... [See Separation by Explanation]

5. Accoutrements of Religion: By analogy to many of the established or recognized religions, the presence of the following external signs may indicate that a particular set of beliefs is "religious":

a. Founder, Prophet, or Teacher: Many religions have been wholly founded or significantly influenced by a deity, teacher, seer, or prophet who is considered to be divine, enlightened, gifted, or blessed.

b. Important Writings: Most religions embrace seminal, elemental, fundamental, or sacred writings. These writing often include creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms, chants, rites, or mantras.

c. Gathering Places: Many religions designate particular structures or places as sacred, holy, or significant. These sites often serve as gathering places for believers. They include physical structures, such as churches, mosques, temples, pyramids, synagogues, or shrines; and natural places, such as springs, rivers, forests, plains, or mountains.

d. Keepers of Knowledge: Most religions have clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge.

e. Ceremonies and Rituals: Most religions include some form of ceremony, ritual, liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed by the religion and are imbued with transcendent significance.

f. Structure or Organization: Many religions have a congregation or group of believers who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages, priests, etc.

g. Holidays: As is etymologically evident, many religions celebrate, observe, or mark "holy," sacred, or important days, weeks, or months.

h. Diet or Fasting: Religions often prescribe or prohibit the eating of certain foods and the drinking of certain liquids on particular days or during particular times.

i. Appearance and Clothing: Some religions prescribe the manner in which believers should maintain their physical appearance, and other religions prescribe the type of clothing that believers should wear.

j. Propagation: Most religious groups, thinking that they have something worthwhile or essential to offer non-believers, attempt to propagate their views and persuade others of their correctness. This is sometimes called "mission work," "witnessing," "converting," or proselytizing. ... [See Separation by Personal Improvement]

The district court emphasized that "it cannot rely solely on established or recognized religions to guide it in determining whether a new and unique set of beliefs warrants inclusion" and that "no one of these factors is dispositive, and that the factors should be seen as criteria that, if minimally satisfied, counsel the inclusion of beliefs within the term 'religion.'" ... However, in accord with Yoder, the court noted that "purely personal, political, ideological, or secular beliefs probably would not satisfy enough criteria for inclusion." Id. at 1504. See Yoder, 406 U.S. at 216 (philosophical and personal beliefs are secular beliefs); Africa, 662 F.2d at 1036 (finding beliefs are secular not religious); Berman, 156 F.2d 377 at 380-81 (beliefs which are moral and social are not religious); Church of the Chosen People, 548 F. Supp. at 1253 (beliefs which are sexual and secular are not religious).

After carefully examining Meyers' beliefs derived from his testimony, the district court concluded that his beliefs were secular and, thus, did not constitute a "religion" for ... [Religious Freedom Restoration Act] purposes. ... The court concluded that:

Marijuana's medical, therapeutic, and social effects are secular, not religious. . . . Here, the Court cannot give Meyers' "religious" beliefs much weight because those beliefs appear to be derived entirely from his secular beliefs. In other words, Meyers' secular and religious beliefs overlap only in the sense that Meyers holds secular beliefs which he believes so deeply that he has transformed them into a "religion."

While Meyers may sincerely believe that his beliefs are religious, this Court cannot rely on his sincerity to conclude that his beliefs rise to the level of a "religion" and therefore trigger ... [the Religious Freedom Restoration Act's] protections. Meyers is, of course, absolutely free to think or believe what he wants. If he thinks that his beliefs are a religion, then so be it. No one can restrict his beliefs, and no one should begrudge him those beliefs. None of this, however, changes the fact that his beliefs do not constitute a "religion" as that term is uneasily defined by law. Were the Court to recognize Meyers' beliefs as religious, it might soon find itself on a slippery slope where anyone who was cured of an ailment by a "medicine" that had pleasant side-effects could claim that they had founded a constitutionally or statutorily protected religion based on the beneficial "medicine." ... Finally, the court noted that "Meyers' professed beliefs have an ad hoc quality that neatly justify his desire to smoke marijuana." ...

We agree with the district court. Under the district court's thorough analysis of the indicia of religion, which we adopt, we hold that Meyers' beliefs more accurately espouse a philosophy and/or way of life rather than a "religion." The district court did not err in prohibiting Meyers' religious freedom defense.