Smith v. Board of School Commissioners of Mobile County (1987)

[EDITORS NOTE:  Excerpts from Smith v. Board of School Commissioners of Mobile County, 655 F.Supp. 939 (S.D. Ala. 1987) (text excerpted, with most notes omitted, and appendices omitted; remaining notes incorporated into text).   Court opinion contained discussion of the definition and characteristics of secular humanism and concluded that secular humanism: (1) is a religion and (2) establishment of secular humanism runs contrary to First Amendment Establishment Clause proscriptions.  The issue is one of fair and balanced treatment of knowledge--educational openness and tolerance, and the free exchange of ideas.

    This district court decision was reversed by the United States Court of Appeals for the Eleventh Circuit in Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684 (11th Cir. 1987).

Read about the roots of secular humanism in:

Don't Hide God in a Closet: Religious Secularism and the Public Acknowledgment of God]

655 F.Supp. 939 (S.D. Ala. 1987)




Civ. A. Nos. 82-0544-BH, 82-0792-BH.


United States District Court,

S.D. Alabama, S.D.


March 4, 1987.

As Corrected March 9 and March 19, 1987.


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HAND, Chief Judge.

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    At the commencement of the evidentiary hearing, plaintiffs counsel stated their position in this fashion:

    At least half of the original trial dealt with textbooks and, though this was not an issue on appeal, it was an issue squarely presented to the Court.  One of the positions the original 624 intervenors, now plaintiffs, took was that humanism is being advanced in the textbooks.  It is a religion and therefore should be excluded as have other religious beliefs.  In this case the plaintiffs draw a distinction between tenets of faith and facts about religion.   Tenets of faith consist of dogma, doctrine and belief and are prohibited from being advanced in the public school classroom.  Facts about religion are not.  The plaintiffs concede that tenets of faith, dogma and doctrine cannot be advanced in the public school room, but they believe that this restriction should be equally applied to all such.  Humanism being such a religion, it should be excluded.

    Another area of contention deals with the inhibition of religion.  The plaintiffs contend that when tenets of only one faith are advanced it inhibits other religions.  When facts about a religion are regularly censored or excluded from textbooks, that equally inhibits that religion.  Inhibition of religion can result by statements contained in textbooks that are contrary to the positions of other religions.  The plaintiffs contend that they can demonstrate that the textbooks leave out all meaningful discussion of the part that Christianity and Judaism have played in the history of the United States, and when you do this you relegate these religions to a position of insignificance.  On the contrary, the textbooks do teach secular humanism, which is a religion, and this emphasizes its importance, all to the detriment of theistic religions.

    The plaintiffs go on to say that they are not asking that their beliefs be imposed upon anyone, just the opposite.  Taxpayers, including themselves, should not be forced to support a system that works against their efforts to pass on their faith to their children.

    The plaintiffs further contend that the state textbook adoption process heavily involves the state in the selection of textbooks to be utilized in the public school system in Alabama.  The state statute that requires the utilization of these books inhibits free speech positions of the teachers.  These books likewise, by content or lack thereof relative to religions, deny to students their right to receive information.  Plaintiffs claim this is the same position advanced by the defendant-intervenors relative to the potential denial of information of a secular nature or a humanistic nature contained in these books.  The plaintiffs likewise liken this state denial of the history of religion in the textbooks in a meaningful way to the state activity in denying black history and its contributions in these texts.

    The plaintiffs also contend that the textbooks employed in the system teach humanism, sometimes referred to as secular humanism, or atheistic humanism, or religious humanism, and that these teachings constitute the teaching of religion within the meaning of the First Amendment to the Constitution and thus should not be advanced as a dogma, tenet or doctrine or belief.  (Tr. 27-40).

Class Procedure

   Because of the nature and number of parties plaintiff and the problem that was occurring in connection with the discovery processes and the logistics involved in the actual trial of this case, the Court, for the reasons expressed in its opinion, made the determination that the matter should proceed as a class action where the plaintiffs were concerned. [***]


   The response of the state defendants to the contention of the plaintiffs is that education in the State of Alabama is not monolithic.   The real driving force of education in this state is the local boards of education and it is they who are in fundamental control of the educational process.  The Textbook Selection Committee reviews approximately 4,000 volumes in the various areas of education, and of these only 45 or so are found to be defective.  In regard to the plaintiffs' claim relative to the free exercise rights of the plaintiffs, the School Board says that the state has adopted no ideological or antagonistic approach to religion of any sort in any of its textbooks.  The School Board further contends that there is a clear secular purpose on the part of the state insofar as the curriculum is concerned.   And lastly, in balancing the interests of the state against the interests of the plaintiffs it is clear that the state has an abiding interest in the education of its peoples in the least obtrusive manner so as not to effect the plaintiffs' constitutional rights and all the state can do is to select a curriculum course and allow the teachers to utilize these materials, along with their own efforts, to fulfill these ends of the state.

    In addition, there is nothing about the curriculum that compels the plaintiffs or their children to believe the material contained in the textbooks to the exclusion of their otherwise Christian beliefs.  As counsel for the state defendants stated it in their post-trial brief and Findings of Fact on page 40, "the task of balancing the legitimate and compelling interest of the state in educating their children against a religious interest of the plaintiffs is not abridged by the actions of the state as reflected by the materials presented in the textbooks because they do not have to believe it and, in any event, exposure to it is not forbidden by their faith."

   The state also contended that it could not accommodate different religious interests, for they would radically restrict the operating latitude of the state in the development of a sound curriculum.  It is argued that the first amendment's free exercise clause does not prohibit a state from using textbooks merely because those textbooks contain ideas that may be contrary to someone else's religious beliefs.

    The state does admit that a lack of reference to the importance of historical contributions and roles of religion in the development of this country represents poor scholarship, and agrees that it is appropriate that the state superintendent take steps to correct this deficiency.  For this reason, these omissions of historical fact in the textbooks cannot be a legitimate basis for the granting of any relief.  Any default by the state simply by omitting certain facts from its books cannot be found to create a burden on the free exercise of the plaintiffs' religion.

    The state defendants further contend that the evidence will not show the establishment of any religion by the actions of the state when you apply the Lemon v. Kurtzman tests.  403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).  Secondarily, they argue that secular humanism is not a religion and, if in fact it is, it is a religion established by the Constitution itself.   (State Board and State Superintendent Proposed Findings of Fact, p. 51 and case cited).  (Tr. 41-43).

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Other Defendants

   The other defendants, the Governor of the State of Alabama and the Mobile County School Board, et. al., all entered into stipulations for consent decrees.  In these stipulations, the parties agreed that secular humanism is a religion for both establishment and free exercise clause purposes, and that the advancement of this religion in public school textbooks would be a violation of the first amendment.  They further agreed that the advancement of humanism does inhibit Christianity in violation of the Lemon v. Kurtzman tests, and that the exclusion of historical contributions of religions from the textbooks constitutes an unconstitutional discrimination against religion in violation of the first amendment as it reflects a governmental disapproval of religion.  The parties further agreed that the systematic exclusion of this history violates the provisions of the Code of Alabama, Sections 16-35-3, 16-3-15 and 16-35-5, which require that the public schools teach established facts of American history, tradition, and patriotism. [***]

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State Defendants' Statements

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    A number of witnesses presented by the state defendants covered subjects dealing with the educational process generally and specifically as it applies in Alabama and to the facts of this case.

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   The Court has spent this time outlining the method of textbook selection, the composition of the committees dealing with selection of instructional material, and the process used to train in the teaching institutions in Alabama, to reflect the philosophic base of those involved in the selection process of the school texts.  The Court finds this plays a very real part in the inquiry dictated by this case.  More as to this.

    According to Dr. Russell Kirk, [***] John Dewey's school of thought may now be adjudged as dominant in educational circles.   Dewey was a humanist and was of the opinion that this humanism which he espoused was the religion of the future.  (Tr. 1354).  Dewey felt that religions existing at that time were outmoded, and that in the future the individual would be classified as little and the society as much.  He believed that his religion was primarily concerned with the social order rather than the ordering of the soul.  (Tr. 1355).

    Dewey contended one should not read books written prior to 1900 because wisdom was new and not old.  One should look to the future rather than to the past and hope to work toward an egalitarian society, marked by equality of condition and talent, a universally peaceful society which would guide itself not by old beliefs, but by new ethics derived from modern scientific doctrine in both the biological and physical sciences.  He did not feel that society would have to cease to be religious, for he felt that there was a need for a religion in the sense of a set of central moral beliefs of a permanent character, but this religion would be quite different from any religion of the past.  These would have to be cast off.  (Tr. 1375).   Kirk says Dewey also expressed himself that "We must be militant in our new religion."  (Tr. 1377).

    It was Dewey and his colleagues who issued the first Humanist Manifesto.  (Tr. 1379-80).  Dr. Kirk explained that Dewey's ideas were called instrumentalism and that it looked upon education primarily as an instrument to prepare the way for an egalitarian society in which people will cooperate and in which there will be little challenge or problems.  Thus, education would become a social function as contrasted with other ideas that had prevailed.  (Tr. 1388).  Present day progressive education is an outgrowth of his ideas and is sometimes carried beyond those ideas by its followers.  In short, it is an elaborate system of pedagogy, which established a form of learning through personal experience and by classroom activities that simulate adult life.  Though this was established in the 20's and 30's, it is still often called today the American educationalist empire.   (Tr. 1389).

    An illustration is the social science disciplines which came into being during the 20's and were later enlarged upon and given considerable boost by the former president of Harvard, James Bryant Conant, during the 50's.   Social science is viewed as a kind of "omnium-gatherum" in which improved behavior in society is brought about by imposing upon society a new moral pattern.   This social science supplanted the former teachings of history and geography.   What history and geography is now taught is under this general umbrella of social science.  (Tr. 1389-90).

    [***]  Dr. Baer says that a review of the textbooks leads to the conclusion that they contain sources that clearly are linked with the philosophy of hedonism.  (Tr. 822).  That is, that all motivation is pleasure determined.   It is closely related to the philosophy of existentialism that argues there is no God and we are totally dependent upon ourselves to make our value judgments.  He notes that this is the philosophy of Jean Paul Sartre and is strongly influenced by what is sometimes called humanistic psychology advanced by Maslow and Rogers.  This psychology argues there is no God and we must make our own choices, and if we let others influence us in this, then that is an example of bad faith.  The result is a convergence of thinking about the nature of values on the metaethical level.  This is basically antithetical to traditional Christian thinking, which is that values can be objectively grounded.

    Metaethical value judgments are matters of preference and taste in personal opinions and they cannot be known to be right or wrong or true or false.  They have to do with one's own desires and fulfillments and self-satisfaction.  Knowing this philosophy is absolutely essential to an understanding of what is going on in the specific passages in the various books questioned.  (Tr. 825).  Dr. Baer testified there are many sections in the book that are consistent with Rogerian psychology and Maslow humanistic psychology, thus advancing the teachings of secular humanism.  (Tr. 868).  He also indicates that Sidney Simon and Merrill Harmin, two of the names mentioned by Dr. Halpin, follow the same general philosophy of Maslow and Rogers.  (Tr. 916).

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    Dr. Coulson says that humanistic psychology is the most accessible of the major psychologies and has been seized upon by the writers of many textbooks and especially those used in high schools.  It is the preferred psychological modality revealed to high school students of psychology, as well as other subjects.  In terms of influence, Dr. Coulson says that Carl Rogers is by far the most influential in this field, surpassing Sigmund Freud and B.F. Skinner.  (Tr. 369).  Dr. Coulson testified that others who had influence in humanistic education were Louis Raths, the father of values clarification, and his associates, Howard Kirschenbaum, Merrill Harmin and Sidney Simon.  (Tr. 473).

    Without, at this juncture, cataloguing all that Dr. Coulson had to say relative to the textbooks in question and his statements relative to their advancing the theory of humanistic psychology, he does summarize that the philosophy espoused is "that only you can judge your values, you are the designer of your life, you are the most important person in your life," and this serves to deny all absolute values except that one absolute value.  This, essentially, is a claim that one takes on an absolute kind of authority to one's self.  (Tr. 2558).

    All of this comes from the philosophy advanced by Dewey.  In his paper, "Religion in our Schools," Dewey created a new religion having four basic elements.  First is that right and wrong reside only in consequences.  Secondly, there is no cosmic guarantee of meaning.  "As Dr. Kurtz stated in the Humanist Manifesto II:  'No god will save us.  We must save ourselves ....'  Thirdly: Children, no less than the rest of us, must be liberated from their subjection to the past .... (our parents) ...  And fourthly, because of all of these, the preferred method of getting through life in a wholesome way, is to engage in what is called value processing ...."  (Tr. 2561).

    Dewey's philosophy seeks to exclude older modalities which developed through the centuries in exchange for making each individual supreme so that the educational experiment can continue in a properly scientific way.   This has brought on values clarification.  Louis Raths acknowledges that his efforts in this area are quite dependent upon the works of John Dewey.  As Raths put it: "We have been extraordinarily blessed in this century with a great philosopher.   His name is John Dewey."  (Tr. 2560-63).

    Dewey's influence was also felt by Abraham Maslow, Carl Rogers, and Lawrence Kohlberg.  (Tr. 2569-70).

    Responding to Dr. Rudder's testimony and that of Dr. Kurtz, to the effect that Dewey has relatively no influence today, Dr. Coulson says they feel that way because they, in fact, see through the eyes of Dewey though they do not know it.  He analogizes by referring to his glasses.  As long as you have them on, you are not aware that you do, and thus Dewey is the spectacles through which American educators have been trained to see the world.  He determines that it is not surprising that they no longer see Dewey because they see with Dewey.  (Tr. 2572).   He also noted that when the other educators were interrogated about who the greatest philosopher affecting American education is, they all mentioned John Dewey.

    Dr. Coulson testified that not only is it the American who has observed the effect of Dewey on the educational process, but also his students at the International School have commented that one of the concerns they have is that somehow coming to America would serve to convert them to a kind of a new form of American imperialism, which they call moral relativism.  They expressed themselves as troubled by the thought that they will go back, having become typical Dewey-eyed Americans.  (Tr. 2572).

    Also, he commented on reflections by R.S. Peters, a noted British philosopher of education.  Peters observed that the American system is that we do not teach religion in public schools, yet we teach Dewey's philosophy, and that is a religion.  (Tr. 2570-71).

    Dr. Coulson summarizes by saying that he agrees with Dr. Russell Kirk that there are two sources of Deweyism today.  One is the publishing industry and the other is the college of education.  As to the colleges of education, this is reflected by the high regard that Dr. Halpin and others have for Maslow, Rogers, et. al.  These theorists are direct in the line of descent from John Dewey, particularly in the rejection of the need for the supernatural.  (Tr. 2582).   Children who have been raised and educated in the schools over the last twenty years or so are in special jeopardy because this relativism which has been espoused has become the church of the public school.  (Tr. 2583).  It is a philosophy that is hostile to established religion because in the establishment of this new church, a very comprehensive system had to be erected that left out the cornerstone of most previous ethical systems: the absolute.  (Tr. 2566).

    The foregoing is a truncated version of the testimony dealing with the impact of modern teaching philosophy and ideas on our present educational efforts.  In abbreviating in this fashion, it is not the Court's intention to denigrate or ignore the testimony given by others on these points.   Indeed, this Court is overwhelmed by the volume of such testimony.

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Quality of Education

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    [***] defendant-intervenors' expert, was also asked about various passages in the books that were the subject of plaintiffs' criticism and which dealt with various teaching philosophies.  He stated that he concurred with plaintiffs in some respects in that if the curriculum in these aspects were followed by the students, it would lead to an absolute breakdown in morality in society.  He stated that such teachings deny to the educational process what is known as critical thinking.  (Tr. 1731-40).

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    [***] witnesses referred at some length to the fact that the textbooks now being used in Alabama, and indeed elsewhere, make no meaningful reference to theistic religions, or other ethical premises which they espouse, and that this trend is becoming more and more prevalent with the passage of time.   Some say that this is based on economic desires of the publishers of textbooks and some say that it is the result of the generalized acceptance of the theories initiated by John Dewey which have filtered down through the teaching mechanism to the state institutions that are involved with the textbook selection process.  The evidence reflects that this process commenced in the 20's and has now so permeated the industry that the only time a student can expect the opportunity to critically examine the secular humanist philosophy is when the teacher provides the critical information for such study based on his or her theistic beliefs.

    Thus, it becomes important to understand what the evidence demonstrates is meant by the term secular humanism.

Secular Humanism

   As one might surmise, a great deal has been said and written about secular humanism.  The evidence preponderates that the terms humanism, humanities, humanitarianism, and secular humanism mean different things to different people depending upon who is using the terms, what is being considered, and upon the age in which the term was utilized. (22)

[note 22:]    One interested in a comprehensive understanding of the development of these terms might read the article by Vito R. Giustiniani entitled "Homo, Humanis, and the Meanings of 'Humanism,' " Journal of the History of Ideas, Vol. 46, April-June 1985.

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    The general public obviously does not concern itself with any classical or philosophical definition of these terms, thus the problem of understanding their relevance to this litigation is greatly multiplied.  An example:  Dr. Kirk feels that the term secular humanism is a misnomer and thinks the term humanitarianism is better.

    Dr. Kirk states that the term "secular humanism" is a term of the twentieth century and is now widely used in scholarly circles.  (Tr. 1352).  It came into being after the formation of the American Humanist Association in 1933.  (Tr. 1353).  During the late 20's and early 30's, a curious battle for the use of the word humanism arose between those who called themselves ethical humanists, and led by Irving Babbitt and Paul Elmer More, and a group who called themselves religious humanists, led by John Dewey and his disciples.  The ethical humanists emphasized classical disciplines and advanced what might be referred to as a study of the humanities.   Babbitt's theory faded in significance as the Dewey philosophy gained ascendance.   (Tr. 1353).  The term secular humanism arose, states Dr. Kirk, apparently to distinguish the humanism of the school of Dewey from the humanism of the school of Babbitt and More.

    Dr. Kirk says Giustiniani examined at some length the change in the term from classical times down to the present, and discussed the development of the different uses of the word and how it has come to be used in America today.   Giustiniani concluded that the American Humanist Association is the church of secular humanism in this country today and recognizes it as a kind of religion.  (Tr. 1352-53).

    Dr. Kirk defines secular humanism as "... a creed or world view which holds that we have no reason to believe in a creator," that the world is self existing, that there is no transcendent power at work in the world, that we should not turn to traditional religion for wisdom; rather that we should develop a new ethics and a new method of moral order founded upon the teachings of modern naturalism and physical science."  (Tr. 1372).  Secular humanism is to be distinguished from the term humanism, he says, for the latter term properly employed in its historical sense, "means primarily regard for a body of humane literature, belief derived from historical experience and from a body of literary criticism, and especially from the classical, that is, the ancient Greek and Roman experience."  (Tr. 1374).

    The definition of humanism or the humanities, as an expression in the classical sense, is still utilized today in various colleges and universities and has been employed by the National Endowment for the Humanities as well as the United States Department of Education.  (Tr. 1383).  This is not the same view of the term taken by secular humanists or humanitarians, for what they have in mind is largely social objectives rather than objectives which are primarily personal, literary, and philosophical.  (Tr. 1384).  He explains this dichotomy and how it came to be in this fashion:

"... there had been going on ever since the first decade of the twentieth century and down to 1933, when the first Humanist Manifesto was issued, a movement about which there occurred a great deal of discussion in America.

It was generally called the new humanism or American humanism.  There were many eminent writers whom the most well known were Irving Babbitt at Harvard University and Paul Elmer More, the literary editor of The Nation magazine.

These two men and their followers were trying to reinvigorate classical studies in America.  In short, to bring back real attention to great literature, particularly Greek and Roman literature, together with the whole tradition of great literature down to our times.  As contrasted with utilitarian or practical or Benthamite attitudes towards learning, they were literarily conservative and stood for the great tradition of learning and education. 

As they preached their doctrines, they were attacked by various people from various points of view.  This was a famous debate that extended over thirty years.

They went on radio, held public discussions before large forums, and so on, literary journals and popular journals, touched somehow upon this movement called the new humanism or American humanism in one way or another.

By 1933 there had been so many attacks upon this intellectual movement that it was beaten back.

Irving Babbitt in 1933 was dying of colitis.  At this moment while Babbitt lay dying there suddenly was issued the first Humanist Manifesto.  Dewey and his colleagues proclaimed themselves American humanists, using exactly the term already used for an entirely different group of people who were quite opposed to Dewey's view.   Babbitt had publicly criticized Dewey's views.  Suddenly Dewey and his friends seized upon this term already used by others, and converted it to their use as if the Republican Party suddenly should seize the name Democratic Party and apply it to themselves, saying, 'we are the real democrats.'

It was a very odd performance.  I suspect Dewey and his friends wanted to have the advantage of the term humanist.  It's a term that has favorable connotations.  It connotes a humane person, a person who's really human, a person who thinks about humanity.  This is a good connotation.  It's a nice label to have, that of humanist.  At least it has been so in the past, most of the time.

It means one is a scholar, having some connection with the Renaissance and perhaps with antiquity.

And so it was more or less deliberately that the disciples of Dewey took over this term of a beaten body of scholars.  The conflict goes on.

This I write about humanism, describing it as a historical movement.  But I am not speaking ordinarily about Secular Humanism.  I have to make the distinction.   (Tr. 1379-80).

. . . . .

That was a point which Irving Babbitt made strongly.  He said that what various people called humanism was really humanitarianism.  The term humanitarianism is used in the popular press and in many serious quarters as synonymous with 'charitable', which is a term of religion, of course.  Caritas is one of the theological virtues.

The word charitable and the word charity have diminished in the popular usage and the words humanitarian and humanitarianism have been substituted.

Why so?  Forgetfulness about the accurate meaning of the words as they are used in serious dictionaries.

Humanitarianism is defined in the larger dictionaries as the belief that the individual and society may be perfected without the operation of divine grace.

That's the root meaning of 'humanitarian'; one who believes we need to use humanistic means for social and perhaps spiritual reform.

Humanitarianism means that there is no need of divine intervention to perfect the person or society.  Humanitarian is one who casts aside belief in a religious system and instead works practically through social and impersonal means for improvement.

As Babbitt said, people like Dewey are not really humanists; they are humanitarians.

That is still true if we turn to the sciences of philology and etymology, that the word humanitarian means a person who doesn't believe in divine grace and says that we can perfect ourselves without that grace; while the word humanism, which originally meant attachment to the classics in literature, is now converted into a term describing a philosophical, religious and social movement.  There is great confusion about words.   As Alice says to Humpty Dumpty, 'Can you make words mean what you want them to mean?'  And Humpty Dumpty says, 'It's a question of who's to be master, that's all.' "

(Tr. 1381-82).

    When asked what he found to criticize in secular humanism as he defined it, Dr. Kirk said:  "Why, sir?  Because it omits what Plato said was the real important thing in all his writings; the doctrine of the soul.  We find in secular humanism no recognition of the soul.  There is only the human animal--the naked ape, if you will.  What really distinguishes us human beings from the brutes is possession of a soul.  Thus the development of the spiritual is the highest aim of a good education.  That is not taken into account at all by the Secular Humanists.   They think of man was a mechanism, a fleshly computer.  That is my primary objection."  (Tr. 1397-98).

    Dr. James Hitchcock also discussed the definitions of the terms involved. [***]  Dr. Hitchcock is a professor of history at St. Louis University, having received his doctor of philosophy from Princeton in 1965.  (Tr. 719-20).  He traces, as a historian, the development of modern day humanism.   (Tr. 734 et seq.).  He states that most renaissance humanists were believers in God and wrote on theological questions.  (Tr. 737).  In the early part of the eighteenth century the first frontal assault occurred on traditional Judaism and Christianity by intellectuals, mainly associated with the movement referred to as the Enlightenment.  This is the first time that the term humanist came to have a connotation that is capable, at least, of excluding God.  (Tr. 738). (24)  He goes on to say that most humanists probably had a belief in God, but God was not a working reality in their lives or their thoughts.

[note 24:]    Dr. Russell Kirk says a lot of this came from the influence of Voltaire.  (Tr. 1368).

    In the nineteenth century atheism began to be seen.  Here the question of whether there was or was not a God came to the forefront because people began to question what proof there was of the existence of a God.  It was during this period that the most powerful form of atheism came into being and this form denied the existence of God or said that if there was a God or one believed in God then the human race would be kept in a position of dependency and therefore childishness.   (Tr. 738).  This was the position of the philosophers Feuerbach, Karl Marx and Nietzsche.  It was a radically new kind of humanism.  The more traditional form of humanism would have seen the two as harmonious and complimentary.

    The new humanism of our century has drifted to the point where it usually denotes a godless kind of philosophy.  Though there have been efforts to try to reclaim the term humanism to its original meaning, in most parts, the term today denotes a sort of godlessness.  (Tr. 739).

    A Christian humanist is one who places high value on man and says the reason for this high value is because man is made in the image and likeness of God and though his human nature is badly flawed, he is redeemable.   Christian humanists are virtually the same as renaissance humanists.   Contrasted to this is modern day humanism, which would encompass both atheistic and non-theistic humanism, sometimes referred to a[s] secular humanism.  This form of humanism excludes the divine, the supernatural, and the transcendent.  It concentrates on the here and now.  The word secular comes from the Latin word seculum which means age or time.  It therefore translates to someone who is time bound to a particular period of history and doesn't feel as though he can get beyond it.  (Tr. 740-42).

    Other witnesses discussed the definitions and each emphasized a different aspect as it applied to various areas in the case.  It would take a reading of their entire testimony, or good parts of it, to come to an understanding of the point that they make.  For example, see the testimony of Dr. Rousas John Rushdoony, (Orig. Tr. 294) and Dr. James Kennedy.  (Orig. Tr. 606).

    Dr. Delos McKown testified at the original trial that there are three characteristics of a secular humanist.  The first is that a humanist takes a naturalistic view of the cosmos and feels no reason to make affirmations about the supernatural.  They may be atheistic or they may retain some vague deistic outlook, but secular deism is a naturalistic philosophy.  Secondly, a humanist looks to science and the techniques developed as the best and safest avenue to knowledge.  He does not claim infallibility.  Thirdly, the secular humanist believes that morals take their origin in humanity, are centered about humanity and have man as their end.  Morality has to do with living the good life.  One cannot live a good life except by accident, and unless others treat you morally.  (Orig. Tr. 371-83).

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Religion Defined

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    The first was the testimony of Delos McKown.   He says that it would be easy to assemble 100 substantial definitions of this term, but gave this one:  "A religion is a series or set of beliefs and practices relative to say, great things, belief in which unites the believer to a moral community called the church, or you could call it the synagogue or temple, it doesn't have to be a church.  But, into a believing community, a community set apart in some sense."   (Orig. Tr. 375).

   Fred Wolfe, minister of the Cottage Baptist Church in Mobile, Alabama, having a congregation of 7,600 members, and who holds a Masters of Divinity from Southwestern Baptist Theological Seminary in Fort Worth, Texas, was asked to define religion.  He stated:  "My definition of religion, it is a man's or woman's worship and expression of their faith in God."  He went on to say that religion does not have to be belief in a god as such under the rulings of the Supreme Court.  A religion is a set of values and views to which a person adheres.   (Orig. Tr. 212).

    Dr. James Kennedy testified on this subject also.  Dr. Kennedy is a minister of the Coral Ridge Presbyterian Church in Fort Lauderdale, Florida.  He holds an AB Degree from the University of Tampa, where he majored in english and education, and received his Masters in Divinity from Columbia.   He holds a Masters of Theology from Chicago Graduate School and his Ph.D. from New York University through the Department of Religion in the School of Education.  He also holds a DD Degree.  Dr. Kennedy has authored several books and a number of articles and presides over a church of some 6,000 members.  (Orig. Tr. 607-08).

    Dr. Kennedy was asked to give a definition of religion and in response he says that that is a difficult subject to define.  He stated that the first approach that normally is made is that religion involves a belief in God and, yet, we know that there are a number of religions which are included in the world's great religions, such as Buddhism, Confucianism, et al., that do not hold any belief in any personal god or any god at all.  One reason that it eludes attempts to define it is because almost any criterion that you select will result in the discovery of a religion that is accepted as such by virtually everyone that does not hold to that particular criterion.  (Orig. Tr. 609).  He goes on to say: "Probably that definition which is broadest and, therefore, has probably received the most widespread acceptance is the idea that religion involves one's ultimate concerns in life."   (Orig. Tr. 610).

    Dr. Kennedy says that in his belief, which is the Presbyterian concept, everything is sacred; thus they hold no distinction between the secular and the sacred.  All life is sacred.

    Dr. Gordon John Spykman, a teacher of theology at Calvin College from which he obtained his AB Degree with a major in Greek and Roman culture, and whose doctoral work was done at the Free University of Amsterdam in systematic theology with minors in ethics and elenctics, described religion in this fashion: "Religion is our on-going series of responses to the claim of God upon the human race to start with."

    "Number one.  One can approach religion from the point of view of cultic activities: what kinds of rituals, what kinds of meditational practices, prayers, scripture readings, holy day observances, etc. ...."

    "The second is religion regarded as a cultural pattern.  That is to say the historical cultural realities of any given community--for example, what we would call religious art, religious music, religious artifacts, historic stands on life and death or war and peace, issues on the part of different communities--cultural patterns that are developed, let's say, either by Islam, Judaism, Christianity or some other Christian tradition."

    ... "The third is religion regarded as ultimate commitment which then gets worked out in terms of life orientation.  These are concepts taken from Phillip Phenix.  To put it in my own words, this third approach to religion would come down to calling it a religious world view.  That is to say, it has the depth dimension of ultimate commitment but it has the scope of a world view."   (Tr. 1159-60).

    Dr. James Davison Hunter, a sociologist connected with the Department of Sociology of the University of Virginia and the holder of a Masters and Ph.D. in sociology from Rutgers University, who presently teaches classes in classical social theory, was asked to give a definition of religion from the sociological standpoint.  (Tr. 208-09, 249).  In response to this inquiry Dr. Hunter stated that there were two main traditions in the theoretical approach to the definition of religion.  These are analytically distinct approaches to the phenomenon.  One has been called the substantive approach and the other has been called the functional approach.  (Tr. 249-50).

    The substantive approach defines religion at the very core by a variety of attributes.  One of the most important is its definition of the sacred.  It defines the sacred according to what is.

    In the functional approach, one generally defines religion according to what it does.  By this he means the meaning and/or content of the phenomenon.

    The analytical distinctions are based upon different theoretical traditions.  For example, the substantive approach basically comes out of the German idealist tradition or German phenomenology.  The functionalist approach comes out of the French and English structuralism, as well as the German sociological materialism, or mainly the approach of critical theory or Marxist scholarship.

    The substantive definition differs not in its use of the category of the sacred, but in the way it defines the sacred.  The sacred is the realm of the supramundane or the transcendent.  It evokes feelings of ineffable wonder and awe.

    Phenomenologists are concerned with the meaning that human beings intend or impute to their own experience, thus many phenomenologists argue that religion or a particular belief system must impute religious meaning upon the sacred or upon this phenomenon.  (Tr. 250-51).

    As stated, the functional approach defines religion according to what it does.  For the individual, religion provides a sense of order, a sense of place in life and in the cosmos, a sense of direction and meaning in life.  It also provides moral coordinates by which individuals can live everyday life, a means by which they can know right from wrong, correct from incorrect, appropriate from inappropriate and so on.  It also provides an explanation for such things as death.

    Religion has functions at the institutional level or the societal level of the community.  These involve priestly and prophetic functions.

    Religion is a meaning system which emanates from the sacred and yet the sacred in this case could be any ultimate value or concern or any orientating principle adhered to by a social group.  (Tr. 254).  The main difference is how do you define sacred.  In the substantive approach, emphasis is on the transcendent.  Most social sciences adopt the functionalistic approach, but he, Dr. Hunter, follows the German phenomenology and adopts the more substantive approach.

    Most social scientists would agree that filing past the body of Mao Tse-tung or Vladimir Lenin is a religious ritual in communist societies whether you consider it from the substantive or the functionalist perspective.

    From the functionalist perspective, religion has become, in the literature, largely synonymous with such terms as cultural system, belief system, meaning system, moral order, moral vision ideology, and world view cosmology.   (Tr. 258).

    Traditional religion would be the major theisms.   The functional definition, however, recognizes nontheistic religions as religion.   Some of these, of course, are Confucianism, Buddhism, and the like.  (Tr. 258-59).  Some refer to these as functional equivalents, and even those who are of the substantive approach would recognize the religious nature of these functional equivalents.  Another such functional equivalent is humanism.  (Tr. 260).

    Dr. Richard A. Baer was asked to define religion, and in so doing he says that it is a difficult subject to define in a short order.  (Tr. 804).  He stated that what troubled him in trying to define the term is that it is such a big concept, so very fundamental in human existence that it becomes very difficult to define in general.  (Tr. 806).  Dr. Baer goes on to discuss what he considers to be various concepts of religion that prevailed at the time of the adoption of the first amendment and how that broad concept applied to most philosophies existing at the time.  So when asked how the Court should define the word religion in light of historical development, he responded: "I believe that we have to focus on these elements of religion that have to do with what was at stake in the first amendment.  And I believe, as I understand, that historically and philosophically and theologically and to some extent legally, what was at stake was the strong conviction which grew out of the historical experience which grew out of a sense of what was right and also a pragmatic sense.   That it is not the business of the state to tell us what to believe at the deepest levels of our human existence.  And that ought to apply, if we are consistent, to the state whether it is propagating traditional Christian or Jewish ideas or to the state whether it is propagating humanistic ideas as in these books that I have reviewed when they are functioning as religion."  (Tr. 811-12).

    Floyd C. Enfinger, Sr., pastor of the First United Methodist Church in Prattville, Alabama, a church of 1,400 members, is an Alabama native who obtained his theological training at the Candler School of Theology at Emory University.  When asked to define religion he, too, responded that it was a very difficult term to define, but felt the simplest definition was one that he came across while studying comparative religions.  It was from Cicero who said that religion is the worship of God.  He went on to say that in our complex society today he tries to keep what he calls the simple traditional concept of religion, but being called upon to put it in words in this testimony he would say that it would be the sum total of a person's thoughts, feelings, convictions, will and action in his solitude as he apprehends them to be in a relationship to a god or a divinity.  (Tr. 2465).

    Dr. Russell Kirk defines religion as a body of belief and practice which has some view of the cosmos, the place of human kind in the cosmos; which posits a moral system; which has a body of doctrine or dogma; which proselytizes with zeal; and which strongly criticizes or denounces rival creeds.   Most religions are theocentric, related to a belief in a deity or deities, but not all.  Modern definitions of religion encompass those traditions which do not believe in a transcendent order or in a divine power, but which are primarily ethical in content rather than transcendent or supernatural.  (Tr. 1358-59).

    The foregoing references in the transcript to definitions of religion are not intended to imply that other witnesses did not address this issue.  Indeed, most witnesses who testified had some conception of the term and what it meant, but their comments were so intertwined with other aspects of their testimony that to try to extract it at this point would call for this Court's interpretation of what they may have meant.  It should be read by any who are interested.

Does Secular Humanism Fit the Description of Religion?

   Dr. Russell Kirk testified that in the sense of the extended definition of religion, secular humanism falls within the limits of the definition.  This is so insofar as it is organized as a body of belief, as a body of doctrine, preaches an ethical creed and proselytizes.  (Tr. 1359).   According to Dr. Kirk, Humanist Manifesto I, Humanist Manifesto II and the Declaration of Secular Humanism are three documents which form a creed or body of doctrine for secular humanism.  (Tr. 1372).  Dr. Kirk says that Christians immanentize symbols of transcendence by claiming that one enters upon immortality through perfection in grace in death.  Secularists immanentize this by bringing the issue down to this world, and he says instead of salvation through grace in death, the secularists achieve the perfection of society here in this world.  The equivalent of death to the secularists is passing through a form of revolution to a new order of a perfect kind.  The role model for this secularist thinking, Dr. Kirk says, is the Marxist theory: revolution and then eternal changelessness here on earth, in a condition of perfect equality.  This is an example of immanentizing of the eschaton--the eschaton being the essential belief, the representation of enduring reality.  (Tr. 1376-77).

    Dr. Kirk said he tended to call anyone religious who calls himself religious and he realizes that in the realm of the secular humanist there are those who would debate with vigor whether it constituted a religion.  While he recognizes that there are both types of secular humanists, he would generally look to Dewey as the great authority in the field and the prophet of it.  Dewey repeatedly declared that he was trying to found a new religion, a religion to supplant earlier religions.  (Tr. 1399).  These views of Dewey were succinctly stated in Humanist Manifesto I.  (Tr. 1400).  He goes on to say that as to proselytizing, he will observe that in most religious bodies there is a kind of an elite who vigorously proselytize while most members are relatively inactive.  In the case of secular humanism, one may look at the vigorous zealous proselytizing of the magazine The Humanist, which repeatedly carries articles of a militant sort demanding that the schools be converted into instruments of humanism, their cause.  (Tr. 1401).

[* * * * *]

         Dr. Gordon Spykman stated this on the issue of whether humanism is a religion: "I believe humanism constitutes a religion as an alternative to, say, the Protestant, Catholic, and Jewish traditions."  The term secular humanism, naturalistic humanism, atheistic humanism, scientific humanism, says Spykman, are all of the same reality called humanism, but come from different sides or different points of view constituting different qualifiers.  The term religious humanism points to the depth and dimension of its commitment.  It is what, he says, Corliss Lamont would call the supreme commitment.   Secular humanism is talking about humanism in terms of its world view, the cosmos.   It is a cosmological approach, that is, man's place in the world.  If one talks about humanism as naturalistic, it is an attempt to react against the visions of supernaturalists.  If one talks about humanism as scientific, one is talking about methodology.  So there are different qualifiers for the same reality.  (Tr. 1160-61).

    Dr. James Hitchcock testified that there are many forms of religion that have existed throughout the history of time with varying results and beliefs.  For example, historians of various times have designated movements like nationalism, communism, or fascism as religions in the sense that these movements call forth total and complete dedication from their adherents and claim to teach the ultimate truth about existence.  They have well developed codes of conduct or discipline, rituals, cults, and sacred books.  In this sense humanists have insisted very vigorously that they are a religion and that the movement they represent is religious.  (Tr. 747).

    He goes on to say humanism, as a self-conscious movement, is creedal.  That is, it involves a set of beliefs.  It has various books written intending to be expositions of humanistic teachings.  These are formulated rather precisely and carefully, a claim that if you are humanist you would adhere to these positions.  In addition there are organized groups which function like churches, one example being the Ethical Culture Society.  There have also been attempts made to incorporate ritual into the humanist movement, and indeed, Corliss Lamont has written in one of his books that he has created a humanist burial service and it is appropriate for humanists to have such things.  (Tr. 749).  Also, there are certain figures in history that are revered and emulated, such as Socrates, Thomas Payne, Ralph Waldo Emerson and others.  (Tr. 749).  They list in various catalogues under the heading of ministers and clergy their counselors and the like.  (Tr. 750).

    [***] Dr. Smith also stated that the general scholarly opinion is that secular humanism, or nontheistic humanism, functions as a religion.   Sociologists and anthropologists and various commentators on modern American culture make exactly this point.  As Alfred North Whitehead taught at Harvard, a thing is as it operates.  (Tr. 158).  Dr. Smith said that atheism is not a religion because it is without a system of morals and cosmology, but nontheistic humanism is because it has a system of morals and a cosmology.  (Tr. 155).

[* * * * *]

    There are other references in the testimony on this issue as with other issues that the Court has heretofore catalogued, and in cataloguing these issues, the Court does not intend to imply that it has covered all of them.

The Textbooks

[* * * * *]

   There were a large number of textbooks introduced at the first hearing and an additional forty-five introduced at this just concluded hearing. [***]  Against the contention by the defendants and defendant-intervenors that the objectionable material contained in the textbooks was selective, out of context, and de minimis, the plaintiffs offered the testimony of many experts to demonstrate that the various books do, in fact, contain a religious philosophy or dogma, a belief system, or advance a tenet of faith that is of a religious bias, and that nothing therein presents any contrary view.  These witnesses agreed, generally, that this leads to the anomaly that the state could somehow establish atheism as its official dogma, but not theism.  (Dr. Baer, Tr. 836). [***]

[* * * * *]

    There are many, many other instances contained in the testimony that more graphically point out the complaint of the plaintiffs, but this opinion has already been burdened and the Court will not further indulge in this effort. [***]  The defendants and defendant-intervenors, in their briefs, point out wherein they think that the efforts of the plaintiffs fail because of the context in which the objectionable language is found.  Any study of these positions should be looked at in the total scheme of things, keeping in mind that these specific references may advance a religion the same as if the Decalogue itself was posted on the school corridor wall.

A Conclusion

   Dr. Coulson summarized the present curriculum in this fashion, and I paraphrase:

    Everything is commandment.  (Martin Buber)   The only commandment offered by the state textbooks is, "don't forget value processing."  Teachers should not have to cover for deficiencies in them.   If these books would stop trying to teach morality (which is preemptive and one-sided) they would have nothing to worry about.

    "If we had textbooks that were either more representative of the diversity of views that are true in this country or stayed out of the realm of value education altogether, let the value education in the school go on around the learning activities of the school, then I don't think any of these parents would have anything to complain of.  But twenty years ago we got the idea that education ought to be somehow morally more relevant.  And the only thing available that wasn't founded on theism was John Dewey."  (Tr. 2569)

Conclusions of Law

   The plaintiff classes claim a violation of the first amendment free exercise and establishment clauses, as applied to the states through the fourteenth amendment.

    The State of Alabama is responsible, through its State Board of Education, for the selection of textbooks for use in the public schools in this state.  The selection of textbooks is therefore state action, subject to the prohibitions of the first and fourteenth amendments.  Such federal constitutional claims constitute a case or controversy within this Court's original jurisdiction.   28 U.S.C. [section] 1331.

[* * * * *]

    It must first be noted that this case is not about returning prayer to the schools.  That was not the issue in this Court's opinion in Jaffree v. Board of School Commissioners 554 F.Supp. 1104 (S.D. Ala. 1983), and is not the issue here.  Neither does this case represent an attempt of narrow-minded or fanatical proreligionists to force a public school system to teach only those opinions and facts they find digestible.  Finally, this case is not an attempt by anyone to censor materials deemed undesirable, improper or immoral.  What this case is about is the allegedly improper promotion of certain religious beliefs, thus violating the constitutional prohibitions against the establishment of religion, applicable to the states through the Fourteenth Amendment.  Wallace v. Jaffree, supra.

    [***]  The Court finds that the plaintiffs herein seek objective education, not partisan indoctrination.  The plaintiff-witnesses did not complain of simple exposure to improper ideas, but of systematic indoctrination.  All contended that a man-centered belief-system, which they know by the appellation "secular humanism," is promoted in the public schools to the detriment of their children's first amendment right of free exercise, all in violation of the establishment clause. (31)

[note 31:]    The state defendants and the individual defendant-intervenors have argued that plaintiffs could not point to a specific instance of infringement on their, or their children's, free exercise.  This misses the point.   Any establishment clause violation per se infringes the rights of every adherent to a belief other than that established, and, arguably, the rights of the "favored" adherents as well.  See, e.g., Merel, The Protection of Individual Choice: A Consistent Understanding of Religion Under the First Amendment, 45 U. Chi. L. Rev. 805, 829 (1978) (two clauses protect one fundamental right).

A First Amendment Definition of Religion

   The Supreme Court has never stated an absolute definition of religion under the first amendment.  Rather, the high court's approach has been one of deciding whether conduct in a particular case falls within the protection of the free exercise clause or the prohibitions of the establishment clause.

[* * * * *]

    Perhaps the safest way to reconcile these varying opinions is to note that overt sponsorship that, as much for appearances as in reality, seems to place the state's imprimatur on specific religious acts, contravenes the establishment clause.  Laws of general application that incidentally agree with or assist a particular religion are a legitimate acknowledgment of the central importance of religious free exercise to our history and present society. [***]  Any state action generally designed to encourage free exercise or allow religious expression in an open, public forum does not equal an establishment of religion. [***]  Finally, the government should not accept or deny the validity of religious beliefs, regardless of the nature of them. [***]  This has been expressed a number of times by stating that the government may not "establish" irreligion or a secular belief system hostile to religion.  See Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984); Schempp, supra, 374 U.S. at 225, 83 S.Ct. at 1573; Zorach, supra, 343 U.S. at 314-15, 72 S.Ct. at 684-85; McCollum, supra 333 U.S. at 211-12, 68 S.Ct. at 465-66 and Barnette, supra, 319 U.S. at 642, 63 S.Ct. at 1187.

    The application of these principles to the question of what constitutes a religion under the first amendment indicates that the state may not decide the question by reference to the validity of the beliefs or practices involved.  Any content-based decision must inevitably result in showing favoritism to some religions and disapproval of others.  The purpose of the first amendment, particularly as expressed by the free exercise clause, would be thwarted. [***]  The state must instead look to factors common to all religious movements to decide how to distinguish those ideologies worthy of the protection of the religion clauses from those which must seek refuge under other constitutional provisions. [***]

[* * * * *]

[***] The Constitution exists to establish a government to effectively preserve the rights of people.  The first amendment religion clauses further one aspect of that goal: the people's religious freedom.  Religion must therefore be defined, for first amendment purposes, in a way that protects the people's right to define their religious beliefs, yet leaves the people's government leeway to regulate activities to protect other rights and privileges that are unrelated to religion. (39)

[note 39:]    Or, perhaps, these other rights precede and are a condition to religious freedom: life, an orderly civilization, peace, protection of the material means for preserving life.

[* * * * *]

[***] But all religious beliefs may be classified by the questions they raise and issues they address.  Some of these matters overlap with non-religious governmental concerns.  A religion, however, approaches them on the basis of certain fundamental assumptions with which governments are unconcerned.  These assumptions may be grouped as about:

    1) the existence of supernatural and/or transcendent reality;

    2) the nature of man;

    3) the ultimate end, or goal or purpose of man's existence, both individually  and collectively;

    4) the purpose and nature of the universe.

    In some systems these assumptions can be implied from less fundamental beliefs; in others they are stated outright.  Whenever a belief system deals with fundamental questions of the nature of reality and man's relationship to reality, it deals with essentially religious questions. [***]  A religion need not posit a belief in a deity, or a belief in supernatural existence.   A religious person adheres to some position on whether supernatural and/or transcendent reality exists at all, and if so, how, and if not, why.  A mere "comprehensive world-view" or "way of life" is not by itself enough to identify a belief system as religious.  A world-view may be merely economic, or sociological, and a person might choose to follow a "way of life" that ignores ultimate issues addressed by religions.  Describing a belief as comprehensive is too vague to be an effective definition under the religion clauses; some religious persons may consider some issues as peripheral that others find central to their beliefs.  Diet is one example of this. [***]  Another is the devotion of some religions to a non-technological life-style, such as the Amish.  A person can be religious for first amendment purposes without having rules and regulations governing every aspect of everyday conduct. [***]  Equating comprehensiveness with religion results in an overinclusive definition.  A religious system should thus be comprehensive, but only in that the potential exists to resolve as yet unasked moral questions.

[* * * * *]

Humanism A Religion?

   In the present case, the plaintiffs contend that a particular belief system fits within the first amendment definition of religion.   The plaintiffs' experts used several different labels in referring to this belief system.  Dr. Timothy Smith used the phrase "atheistic humanism."   Trans. at 113.  Dr. James Davison Hunter used "naturalistic humanism."  Dr. William R. Coulson accepted these terms, as well as "religious humanism," a term John Dewey used.  Trans. at 498, 507.   Dr. James Hitchcock used nontheistic humanism as a synonym for humanism, Trans. at 741-42, and secular humanism as encompassing atheistic and nontheistic humanism.   Trans. at 742.  Dr. Richard A. Baer, Jr. used "humanism" to refer to secular humanism and atheistic humanism.  Trans. at 812. [***]  All of the experts, and the class representatives, [***] agreed that this belief system is a religion which:

makes a statement about supernatural existence a central pillar of its logic; defines the nature of man;

sets forth a goal or purpose for individual and collective human existence; and defines the nature of the universe, and thereby delimits its purpose.

    It purports to establish a closed definition of reality; not closed in that adherents know everything, but in that everything is knowable: can be recognized by the human intellect aided only by the devices of that intellect's own creation or discovery.  The most important belief of this religion is its denial of the transcendent and/or supernatural: there is no God, no creator, no divinity.  By force of logic the universe is thus self-existing, completely physical and hence, essentially knowable.  Man is the product of evolutionary, physical, forces.  He is purely biological and has no supernatural or transcendent spiritual component or quality.  Man's individual purpose is to seek and obtain personal fulfillment by freely developing every talent and ability, especially his rational intellect, to the highest level. (49)  Man's collective purpose is to seek the good life by the increase of every person's freedom and potential for personal development. (50)

[note 49:]    Testimony of Dr. Paul Kurtz, Trans. at 1687-88, 1697-98.  The tenets of this belief system are succinctly expressed in Humanist Manifesto I and Humanist Manifesto II.

[note 50:]    See, e.g., Kurtz, Preface to Humanist Manifestos I and II at 3 (1978) ("If the starting point of humanism is the preservation and enhancement of all things human, then what more worthwhile goal than the realization of the human potentiality of each individual and of humanity as a whole?")  See also Humanist Manifesto I, Id. at 10 ("[T]he quest for the good life is still the central task for mankind.")

    In addition, humanism, as a belief system, erects a moral code and identifies the source of morality.  This source is claimed to exist in humans and the social relationships of humans.  Again, there is no spiritual or supernatural origin for morals: man is merely physical, and morals, the rules governing his private and social conduct, are founded only on man's actions, situation and environment.  In addition to a moral code, certain attitudes and conduct are proscribed since they interfere with personal freedom and fulfillment.  In particular any belief in a deity or adherence to a religious system that is theistic in any way is discouraged.

    Secular humanism, or humanism in the sense of a religious belief system, (as opposed to humanism as just an interest in the humanities), has organizational characteristics.  [***]  These organizations proselytize and preach their theories with the avowed purpose of persuading non-adherents to believe as they do.  They conduct seminars and retreats, with various organizations cooperating in such activities.

    [***] The entire body of thought has three key documents that furnish the text upon which the belief system rests as on a platform: Humanist Manifesto I, Humanist Manifesto II, and the Secular Humanist Declaration.

    These factors noted in the two preceding paragraphs demonstrate the institutional character of secular humanism.  They are evidence that this belief system is similar to groups traditionally afforded protection by the first amendment religion clauses.

    [***]  There is a diversity of views and philosophies within the humanist community very similar to the schisms and debates existing within the Christian, Jewish and Muslim communities. [***]

[* * * * *]

[***]  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. (56)

    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. (57)  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. [***]  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.

[note 56:]    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.

[note 57:]    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."

    [* * *]  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.

Religious Promotion in Textbooks?

   The Court now considers whether this religious belief system of Humanism (in whatever particular strain it occurs) is involved in a constitutional controversy before this Court.  As already noted, [***] the Supreme Court has declared that teaching religious tenets in such a way as to promote or encourage a religion violates the religion clauses.  This prohibition is not implicated by mere coincidence of ideas with religious tenets. (60)  Rather, there must be systematic, whether explicit or implicit, promotion of a belief system as a whole.  The facts showed that the State of Alabama has on its state textbook list certain volumes that are being used by school systems in this state, which engage in such promotion.

[* * * * *]

    The virtually unanimous conclusion of the numerous witnesses, both expert and lay, party and non-party, was that textbooks in the fields examined were poor from an educational perspective.  Mere rotten and inadequate textbooks, however, have not yet been determined to violate any constitutional provision, much less the religion clauses.  The Court points this out to demonstrate the predicament confronting the people who must select textbooks.  As to the history books, Dr. Smith and Dr. Vitz testified that all of them omitted numerous significant facts about religion and religious contributions to American history.  Their expert opinion was that religion was so deliberately underemphasized and ignored that theistic religions were effectively discriminated against and made to seem irrelevant and unimportant within the context of American history. (62)  Some of the books were worse than others, according to Dr. Smith, but none were good. [***]  His opinion was that, except for one text, each of the books reviewed conveyed an historical picture biased against theistic religions. [***]

[footnote 60:]    [***]  As previously observed, plaintiffs do not contend that mere exposure to ideas and concepts of humanism violates their rights.

[* * * * *]

[footnote 62:]    In the course of American history, Judeo-Christianity occupies the major role within the theistic religious tradition.   Thus discrimination against theistic religion within American history texts occurs if this tradition is ignored or neglected.

    The pattern in these books is the omission of religious aspects to significant American events.  The religious significance of much of the history of the Puritans is ignored.  The Great Awakenings are generally not mentioned.   Colonial missionaries are either not mentioned or represented as oppressors of native Americans.  The religious influence on the abolitionist, women's suffrage, temperance, modern civil rights and peace movements is ignored or diminished to insignificance.  The role of religion in the lives of immigrants and minorities, especially southern blacks, is rarely mentioned.  After the Civil War, religion is given almost no play.  Dr. Smith repeatedly noted that these omissions were not questions of adding material that would result in unwieldy and overlong texts.   Rather, they were a matter of writing the facts with a tone and attitude ignoring or denigrating religion.  The books need only, in his opinion, be rewritten to reflect these religious factors, (65) not lengthened to add superfluous material.

    Dr. Paul Vitz testified that he systematically analyzed the history books by the quantity and quality of references to religion.  His testimony was based on the lack of appropriate references and agreed generally with Dr. Smith that the books underemphasized or neglected the Judeo-Christian tradition in American society.

    The Court's conclusion about these history books must take several factors into account.  Dr. Smith, Dr. Hunter, Dr. Baer and Dr. Coulson all testified that omission of references to religion in school curriculum is detrimental to the free exercise of the excluded religion.  To what extent can omissions constitute a violation of the first amendment religion clauses?

    First, the Supreme Court has recognized a right to not be prevented from learning material if it was excluded for religious reasons and there is a legitimate secular or non-religious (as opposed to anti-religious or irreligious) reason for teaching the material. (66)  See Epperson v. Arkansas, supra.  Thus an omission can constitute a first amendment violation.  Second, a number of commentators contend that sufficient omissions violate religious freedom.  See, e.g., McGarry, The Unconstitutionality of Exclusive Governmental Support of Entirely Secularist Education, 28 Cath. Law 1 (1983); Nielsen, The Advancement of Religion versus Teaching About Religion in the Public Schools, 26 J. Ch. & St. 105 (1984); Note, The Myth of Religious Neutrality by Separation In Education, 71 Va. L. Rev. 127 (1985).  On the role of government in preferring one ideology over others, see generally Horn, Secularism and Pluralism in Public Education, 7 Harv. J. L. & Pub. 177 (1984); Louisell, Does The Constitution Require a Purely Secular Society, 26 Cath. U. L. Rev. 20 (1976); Toscano, A Dubious Neutrality: The Establishment of Secularism in the Public Schools, 1979 B. Y. U. L. Rev. 177, Whitehead and Conlan, The Establishment of the Religion of Secular Humanism and its First Amendment Implications, 10 Tex. Tech. L. Rev. 1 (1978); Comment, Secularism in the Law: The Religion of Secular Humanism, 8 Ohio N. U. L. Rev. 329 (1981).   Furthermore, there is no doubt that adherents to the religion of the Humanist Manifestos affirmatively seek the exclusion of influence by theistic religions in the public schools. (67)  Finally, Dr. Smith testified that he has observed students who have received an education that excluded discussion of the historical facts of religion, and that as a definite result thereof, those students think differently about their belief system and its relationship to their lives than students educated in a fairer and more objective environment. (68)  (Tr. at 99-100, 146-40).  Omissions, if sufficient, do affect a person's ability to develop religious beliefs and exercise that religious freedom guaranteed by the Constitution.  Do the omissions in these history books cross that threshold?  For some of them, yes.  In addition to omitting particular historical events with religious significance, these books uniformly ignore the religious aspect of most American culture.  The vast majority of Americans, for most of our history, have lived in a society in which religion was a part of daily life.   This aspect was not something that most people even thought about, or had to; it was a given, it was axiomatic, just as telephones, automobiles and fast food are a given of current culture.  For many people, religion is still this important.  One would never know it by reading these books.  Religion, where treated at all, is generally represented as a private matter, only influencing American public life at some extraordinary moments. (69)  This view of religion is one humanists have been seeking to instill for fifty years.  These books assist that effort by perpetuating an inaccurate historical picture.  This Court cannot define with absolute precision the way in which a history book should be written to cure these problems, nor would that be desirable.  What this Court can and does say is that its independent perusal of these books forces it to agree in general with the conclusions of Dr. Smith and Dr. Vitz: These history books discriminate against the very concept of religion, and theistic religions in particular, by omissions so serious that a student learning history from them would not be apprised of relevant facts about America's history.  Even where the factor of religion is included, as in statements that some colonies were founded to obtain religious freedom, there is rarely an explanation of Christianity's involvement.  The student would reasonably assume, absent other information, that theistic religion is, at best, extraneous to an intelligent understanding of this country's history.  The texts reviewed are not merely bad history, but lack so many facts as to equal ideological promotion.  [***]

[note  65:]    Tr. 76.

[note 66:]    One commentator argues that, since government must remain neutral as to religious matters, there is a distinction between irreligious and non-religious.  The former is a possible choice under the free exercise clause, the latter is the Government's proper domain.  See Merel, The Protection of Individual Choice, 45 U. Chi. L. Rev. 805 (1978).

[note 67:]    See, e.g., Potter, C.F., Humanism: A New Religion, 127 (1930); Blanchard, Three Cheers For Our Secular State, The Humanist 17, April 1976.  John Dewey was the principle proponent of using the schools as vehicles for altering people's perceptions of religion.

[note 68:]    Dr. Smith was not testifying about Alabama students, but about the effects omissions can and do have on persons.

[note 69:]    See A. Reichley, Religion in American Public Life at 165 (1986), noting that exclusion of religion from public, civic life is not neutrality but an establishment of secularism.

   This Court is not in the business of writing, or re-writing, history texts.  But it is this Court's solemn duty and obligation under the first and fourteenth amendments as interpreted by the Supreme Court in Jaffree, supra, to protect the rights of these plaintiffs and defendants to the free exercise of their various religions, unimpaired by an officially sponsored version of history that ignores the facts that give the first amendment its importance and significance.  The Court will consider below what specific relief is appropriate.

   The fifth grade social studies books are all elementary grade American history texts.  They suffer defects worse tha[n] those of the high school books.  References to religion are isolated and the integration of religion in the history of American society is ignored.

   Dr. Hunter's review of the remaining social studies texts shows that they generally ignore the presence and factual importance of theistic religion as undeniable influences in American society.  The attitude and approach of the books simply overlooks such a possible aspect of a student's existence.  Although the role and significance of religion in American life has altered over the years, the picture portrayed by these series of books relegates religion to other cultures, other times and other places.  These books teach that this is how people are: that people's actions, behaviors, jobs, schooling, their very lives are based on anything but religion.  The factual inaccuracies are so grave as to rise to a constitutional violation.  The Court's independent review of the books confirm Dr. Hunter's testimony in this regard. [***]  Religion, especially theistic religion, is never placed in context by these books.

   [***]  According to the plaintiffs' experts, the five home economics books espouse humanistic psychology or education.  Humanistic education is an application of humanism.  Not all adherents to the latter agree with every aspect of the former, and Dr. Kurtz spent considerable time on the stand denying that he personally adheres to certain teachings of humanistic psychology.  This, however, does not show that humanistic psychology as present in these books is not a variety of humanism or a religion in its own right under the first amendment.

   Humanistic psychology was originated by Carl Rogers and Abraham Maslow, and put into practice most effectively by Sidney Simon, Howard Kirschenbaum and Merrill Harmin.  This Court is unconcerned with whether it is a valid field of the science of psychology.  In these books, it is presented in such a way as to require the student to accept as true certain assumptions.  These assumptions are about human nature, the origin and nature of the rules governing human relationships, the non-existence of supernatural or transcendent reality, and the purpose of human existence individually and collectively.

   According to humanistic psychology, as with humanism generally, man is the center of the universe and all existence.  Morals are a matter of taste, dependent upon whether the consequences of actions satisfy human "needs."  These needs are always defined as purely temporal and non-supernatural.  Moreover, the books imply strongly that a person uses the same process in deciding a moral issue that he uses in choosing one pair of shoes over another. [***]  The books do not state that this is a theory of the way humans make choices, they teach the student that things are this way.  This claim, according to Dr. Coulson, Dr. Baer, Dr. Strike and even Dr. Kurtz, is not a legitimate scientific claim, but a faith-statement: an assumption based on a particular vision of human nature unrelated to science.

   The books teach that the student must determine right and wrong based only on his own experience, feelings and "values."  These "values" are described as originating from within.  A description of the origin of morals must be based on a faith assumption: a religious dogma.  The books are not simply claiming that a moral rule must be internally accepted before it becomes meaningful, because this is true of all facts and beliefs. [***]   The books require the student to accept that the validity of a moral choice is only to be decided by the student.  The requirement is not stated explicitly.   Instead, the books repeat, over and over, that the decision is "yours alone," or is "purely personal" or that "only you can decide." [***]  The emphasis and overall approach implies, and would cause any reasonable, thinking student to infer, that the book is teaching that moral choices are just a matter of preference, because, as the books say, "you are the most important person in your life."  This highly relativistic and individualistic approach constitutes the promotion of a fundamental faith claim opposed to other religious faiths.  Such a relativistic claim can only be made on the basis of a faith assumption.  This faith assumes that self-actualization is the goal of every human being, that man has no supernatural attributes or component, that there are only temporal and physical consequences for man's actions, and that these results, alone, determine the morality of an action.  This belief strikes at the heart of many theistic religions' beliefs that certain actions are in and of themselves immoral, whatever the consequences, and that, in addition, actions will have extra-temporal consequences.

    Humanistic psychology is a manifestation of humanism. (75)  Both deny the supernatural, both make man the center of all existence, including morals formulation, both view man's sole collective and individual purpose as fulfillment of his physical, temporal potential. (76)  Both view man as a completely physical being, leaving no supernatural dimension.  Such characteristics constitute a religious faith under the first amendment.  It was argued at trial that only small portions of the home economics books were devoted to "values."   However, each book was imbued with these religious assumptions in their discussions of human relationships.  Moreover, a religion may not be promoted through one chapter any more than through a whole book.  If a psychology chapter in one of these books were devoted solely to an explanation and discussion of the Amish attitude on maturity, with its theological background, as the approach, disregarding other systems, it would obviously be found wanting.  The facts that: 1) the psychology presented is not theistically based and, 2) only a portion of the book is devoted to it, do not justify the violation. (77)

    The Court is not holding that high school home economics books must not discuss various theories of human psychology.  But it must not present faith based systems to the exclusion of other faith based systems, it must not present one as true and the other as false, and it must use a comparative approach to withstand constitutional scrutiny. [***]

    The Court therefore proceeds to consider what relief is appropriate in light of its findings that use of these texts violates the religion clauses of the first amendment.

    The question arises how public schools can deal with topics that overlap with areas covered by religious belief.  Mere coincidence between a statement in a textbook and a religious belief is not an establishment of religion.  However, some religious beliefs are so fundamental that the act of denying them will completely undermine that religion.  In addition, denial of that belief will result in the affirmance of a contrary belief and result in the establishment of an opposing religion.

    The state may teach that lying is wrong, as a social and civil regulation, but if, in so doing it advances a reason for the rule, the possible different reasons must be explained evenhandedly.  As otherwise stated, the state may not promote one particular reason over another in the public schools. (79)

    Teaching that moral choices are purely personal and can only be based on some autonomous, as yet undiscovered and unfulfilled, inner self is a sweeping fundamental belief that must not be promoted by the public schools.   The state can, of course, teach the law of the land, which is that each person is responsible for, and will be held to account for, his actions.  There is a distinct practical consequence between this fact, and the religious belief promoted, whether explicitly or implicitly, by saying "only you can decide what is right and wrong."  With these books, the State of Alabama has overstepped its mark, and must withdraw to perform its proper non-religious function.


   The Court, having concluded that the challenged textbooks violate the establishment clause of the First Amendment to the United States Constitution, is thus compelled to grant plaintiffs' their requested relief barring the further advancement of the tenets of the religion of secular humanism. [***]

[* * * * *]

[note 75:]    Dr. Coulson, Tr. at 580.

[note 76:]    Humanistic psychology is somewhat more relativistic in this respect, as it concentrates on "needs," personal satisfaction, and feelings, while humanism concentrates on intelligence, talents and rationality.  However, the difference is purely one of degree and not substance.

[note 77:]    Obviously, if one chapter alone of a biology book were given over to the Genesis account, without any further explanation, as the account of the world's existence, there would be no de minimis exception.

[* * * * *]

[note 79:]    Similarly, as a matter of history, teaching that there are religions that believe that God does or does not exist is constitutional.   Teaching that, as a matter of fact, God does or does not exist is unconstitutional.

[Appendices are omitted.]

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