This piece is co-authored by Tom Flynn, Ronald A. Lindsay, and Nicholas J. Little. It will be published as the lead editorial in the February-March 2015 issue of Free Inquiry.

Litigation always carries risk – first of all, the risk of losing one’s case, but also the risk that a court decision will bring unintended consequences. The Freedom From Religion Foundation discovered that in Hein v. Freedom From Religion Foundation (2007), a taxpayer suit challenging the White House Office of Faith-Based and Community Initiatives that resulted in a sweeping decision sharply limiting the ability of taxpayers to bring future cases challenging executive-branch spending decisions under the Establishment Clause of the First Amendment. On October 30, 2014, the American Humanist Association had what may prove to be a similar experience. In American Humanist Association v. United States of America, a federal district court in Oregon ruled that a prisoner had a valid legal claim when he alleged that prison officials refused to authorize a humanist study group. So far, so good. However, in reaching this conclusion the court bizarrely ruled that secular humanism is a religion, when the nature of secular humanism was never even an issue in the case. Of course, the judge may have been persuaded to reach this conclusion because in its arguments to the court the AHA vigorously contended that humanism is a religion, and made no effort to distinguish its brand of humanism from secular humanism.

Background of the Case. Jason Michael Holden has been an inmate at the Federal Correctional Institution at Sheridan, Oregon, since 2010. A self-described Humanist (apparently, his capitalization), Holden repeatedly sought permission to organize a Humanist study group and was repeatedly denied. Prison officials claimed that humanism was not a religion. At various times they characterized humanism as a philosophy, not a religion, or offered to allow Holden to organize an atheist or Unitarian Universalist study group, neither of which reflected Holden’s lifestance. Holden was apparently quite consistent in maintaining that he viewed Humanism as his religion and that he sought to have his Humanism accommodated in the same way the prison accommodated other religions, from Christianity to Adventists, Sikhs, or Odinists. In April, 2014, the AHA joined Holden in filing suit against the United States, the Federal Bureau of Prisoners, and other defendants. The defendants had sought to have the suit dismissed; on October 30, United States District Judge Ancer L. Haggerty refused that request for dismissal. In constitutional cases, a refusal to dismiss usually leads to a motion for summary judgment by the other party and, not infrequently, swift settlement of the case on the terms of the refusal to dismiss. So the October 30 decision is a weighty matter.

There seems little room for doubt that Holden, who viewed his Humanism as a religious commitment, was seeking a reasonable accommodation of the same sort that the prison already offered to members of some twenty-nine other traditions, including several controversial or minority faiths. Likewise, there seems little room for doubt that prison officials treated Holden unfairly when they repeatedly obstructed his efforts to form a Humanist study group. If the end result of this proceeding is that Mr. Holden and other religious-Humanist prisoners at FCI Sheridan can enjoy their meetings without undue harassment, that will be a most laudable outcome.

But from the perspective of the larger humanist movement – and of humanism as part of the larger fabric of the unbelieving community – there is room to ask whether AHA’s decision to conduct the action as it did was strategically wise. That question seems especially urgent in view of the way the October 30 th ruling unexpectedly – and to our way of thinking, unjustifiably – resulted in a statement by a federal judge that secular humanism is a religion.

The Strategic Issue. In order to present the strategic issues clearly, we must first lay some conceptual groundwork.

Used without a modifier, the term humanism is almost unworkably broad. It encompasses literary and artistic traditions (such as Renaissance humanism and literary humanism) as well as philosophical or religious points of view. In the context of the contemporary humanist movement, humanism is usually understood as a set of viewpoints that do not recognize the authority and truth of traditional religions; do not recognize any set of writings as sacred or any person as having the authority to dictate a creed that must be accepted; do not recognize the existence of any transcendent beings, deities or otherwise; view human beings as the primary objects of moral concern; and seek optimal approaches for living rich and moral lives here on earth in what are considered most probably the only lives we have.

This humanist community, itself quite broad, can be divided further into at least three principal strands:

Religious Humanism (often capitalized), which views Humanism as a religious commitment and may include assent to objectively unprovable propositions, such as the perfectibility of human beings;

Congregational humanism, a more recent term that describes a growing group of humanist who eschew any form of religious faith, but desire to take part in ceremonies and rituals drawn from the life of church or synagogue congregations.*

Secular humanism (properly, never capitalized), an explicitly non-religious life stance that rejects all form of supernaturalism or spirituality and is often uninterested in practices borrowed from congregational life.

In this case, it seems uncontroversial that plaintiff Holden can be understood as a religious Humanist – that is, one who views his humanism as a religious identity and a token of religious commitment. It seems clear from the case materials that Holden sought to organize his Humanist study group as a religious exercise, and viewed obstructive efforts by prison officials as religious discrimination against him. The more significant question is whether the AHA was wise to accept the case on Holden’s terms, or whether a higher objective could have been pursued – with reduced risk of unintended consequences, in this case a gratuitous finding that a certain strand of humanism was a religion for Establishment Clause purposes.

Several court decisions have recognized that even though atheism and humanism are not “religions” in the traditional sense of that term, they are secular analogues to religion when they hold a similar place in adherents’ lives. The series of cases so holding goes back to the Supreme Court’s decision in Welsh v. United States, 398 U.S. 333 (1970), which held that the exemption for conscientious objectors to the military draft applied to nonreligious individuals who had serious, deeply held moral beliefs analogous to religious beliefs. Turning to the prison context, the U.S. Court of Appeals for the Seventh Circuit held in Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005) that when making accommodations to prisoners, atheism must be treated as favorably as religious beliefs.

More recently in Center for Inquiry v. Marion Circuit Court Clerk (2014), the Seventh Circuit held that secular celebrants have the same right to solemnize marriages as religious celebrants. The court reached this conclusion even though the Center for Inquiry, a humanist organization, insisted it is not a religious organization, and Reba Wooden, the secular celebrant wh

o was a co-plaintiff in the case, similarly maintained she was not religious. The court pointed out that under the First Amendment’s neutrality principle, the government cannot favor religion vis-à-vis comparable secular belief systems. Accordingly, for purposes of solemnizing marriages, humanism is entitled to be treated as though it were a religion— even though it is not.

It may seem like a subtle difference to say that humanism can be treated as though it were a religion for certain legal purposes as opposed to saying that humanism is a religion, but the subtle difference is very significant. The former approach is consistent with the long-standing principle embraced by most humanists that religion and religious organizations are not entitled to any special privileges. This is a principle for which many humanists have shed blood, sweat, tears, and money. The latter approach essentially says, “If you can’t beat them, join them.” It doesn’t maintain that religion and religious organizations are not entitled to any special privileges; instead it tries to portray humanism as a religion so it can partake of these privileges as well.

For all that Mr. Holden probably sincerely understood his grievance as religious in nature, and for all that a superficially simpler “humanism is a religion” argument might have struck the AHA’s litigators as easier to pursue, there would have been much to gain by recasting Holden’s complaint as an argument that humanism is a secular belief system entitled to be treated as a religion for certain legal purposes. The case might have contributed to the larger expansion of freedom-of-conscience litigation and its gradual replacement of principles rooted solely in religion, an outcome any secularist might be expected to find desirable. Also, by avoiding the misleading argument that any type of “humanism is a religion” it would have provided some protection against a perverse consequence: Judge Haggerty’s finding that not only humanism generally, but secular humanism, is a religion.

This finding may do great damage to the humanist movement, partly by the precedent it sets and partly by its impact on public rhetoric. It is doubly perverse because:

Secular humanism played no particular role in this case, which concerned a religious Humanist’s pursuit of his right to conduct a religious exercise; and

Of all the strands of humanism, secular humanism is the one that most consistently and explicitly describes itself as separate from – indeed, wholly other than – religion.

Secular Humanism and Religion. To understand the inappropriateness of this verdict more clearly, some further background is in order. In particular we should review the circumstances that gave rise to the founding of the Council for Secular Humanism, the nation’s only explicitly secular-humanist advocacy organization, in 1980.

The 1970s had seen a precipitous rise in influence and prestige by evangelical and fundamentalist Christian groups with ambitious social agendas. Figures including Jerry Falwell, Pat Robertson, Francis Schaeffer, James Dobson, Tim LaHaye, and others argued vigorously that humanism was an alien religion that needed to be purged from American culture, and especially from public schools. The tenets of this “religion of humanism” were alleged to include most of the fruits of twentieth-century secular culture, from contraception to the theory of evolution. At the time it was widely feared that groups like the Moral Majority might use this mischaracterization of humanism as a religion to damage education, reproductive freedom, and many other areas of life. Sometimes religious Right figures argued that humanism was a religion; at others they argued that secular humanism was a religion, a difficult claim to refute since at that time no organization spoke specifically for secular humanists and their interests.

Unfortunately, certain facts offered support for accusations that humanism was a religion:

The Humanist Manifesto (1931), widely viewed as the founding document of American humanism, explicitly described humanism as a new religion.

The only national humanist organization existing at that time, the AHA, held a religious tax exemption.**

Religious Humanists existed, if anything, in greater numbers than they do today. There was no shortage of writings demonstrating that some humanists viewed their Humanism as a religious commitment.

Philosopher Paul Kurtz viewed these matters with understandable dismay. In the 1970s, as editor of the AHA’s magazine The Humanist, he had campaigned successfully to move American humanism in a more secular direction. In 1973 he and Edwin H. Wilson drafted Humanist Manifesto II, which explicitly repudiated its predecessor’s description of humanism as a religion and sought to portray humanism as a secular movement, more philosophy than religion.

By the late 1970s Kurtz was no longer active with the AHA. Joining with others, in 1980 he formed the Council for Democratic and Secular Humanism (now the Council for Secular Humanism), in large part to embody secular humanism and to assert its non-religious nature. On more than one occasion Paul confided to one of us (Flynn) that in the event that some future court defined religious Humanism, or humanism generally, as religious, the Council would strive to show that at least one strand of humanism was explicitly non-religious, and that humanism generally could never be accurately described as monolithically religious.

From then until now, the Council has remained true to this view of secular humanism. In 2002, Paul Kurtz wrote: “We need to reiterate that the Council for Secular Humanism and the Center for Inquiry are postreligious. We … wish to disassociate ourselves with any and all attempts to ape religion.”*** ”On our website, on a page titled “What Is Secular Humanism?” it is currently described as “a comprehensive, nonreligious lifestance incorporating a naturalistic philosophy, a cosmic outlook rooted in science, and a consequentialist ethical system” (emphasis added).****

If secular humanism is the most explicitly nonreligious form of humanism, how did it alone come to be labeled as a religion by Judge Haggerty?

The story goes back to Torcaso v. Watkins, a landmark 1961 case that largely ended religious tests for state offices such as notary public. In a footnote to that case, Justice Hugo L. Black wrote: “Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism, and others.” This observation was startling for multiple reasons. Not only were there no organized secular humanists in 1961, the term appears to have been used only once before, by the prominent church-state attorney Leo Pfeffer, who apparently coined the phrase in his 1958 book, Creeds in Competition. (Pfeffer was Torcaso’s attorney.) Certainly there were in 1961 no Secular Humanists who capitalized the phrase as though it were the name of their church! Justice Black probably composed this list of non-theistic religions using no reference source other than his memory. Unfortunately, it is simply incorrect. Fortunately, it is contained in a footnote to a Supreme Court decision. Footnotes in Supreme Court decisions are generally held not to carry the weight of precedent (as courts do not typically express their holdings in footnotes), though lower courts are sometimes inconsistent in observing that principle.

In AHA vs.

United States, Judge Haggerty took Justice Black’s footnote in Torcaso v. Watkins all too seriously. Indeed, it appears to be the entire basis for his conclusion that secular humanism deserves to be considered a religion. Finding that plaintiff Holden had a valid complaint under the Establishment Clause, Judge Haggerty concluded a brief examination of relevant law as follows:

In Torcaso v. Watkins, the Supreme Court said that the government must not “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” Among these latter religions, in a footnote the Court included Secular Humanism. Therefore, the court finds that Secular Humanism is a religion for Establishment Clause purposes … [citations omitted]

Is the AHA Not Cognizant of the Distinction between Secular and Religious Humanism? In its briefs in AHA v. the United States, AHA litigators insist repeatedly and unconditionally that “Humanism is a religion.” A charitable view might be that AHA’s leadership, or perhaps its legal counsel, were unaware of the existence of humanists who view their lifestance as anything but religious – or that they were unaware of the negative consequences that might follow a judicial finding that humanism is a religion. A 2007 essay ***** by Roy Speckhardt, then and now the executive director of the American Humanist Association, demonstrates that neither is true:

While some humanists are comfortable explaining their worldview in religious terms, and may even feel that other vocabulary falls short of describing their vibrant intermingling of emotive and rational thought, more and more humanists prefer to describe their convictions in a more clearly secular manner. Indeed, many humanists bristle at the idea of being a dues-paying member of a religious organization.

As to the dangers posed by the idea that humanism, or secular humanism, is a religion, Speckhardt commented:

It was during this time [the 1970s] that the religious right began to gain strength and started to blame secular humanists for society’s ills and accuse the public educational system of teaching the “religion” of secular humanism. Debates continue to this day with fundamentalists who claim that secular humanism is a “religion” taught in schools and secular humanists who argue that it isn’t a religion at all.

An unsigned editor’s note following Speckhardt’s essay goes so far as to note, “Some humanists think humanism is religious, and other humanists disagree. In fact some humanists think this question is so important that they call themselves either ‘religious humanists’ or ‘secular humanists’ on the basis of their position on this issue.”

It seems clear, then, that AHA leadership must have been cognizant that the claim that humanism is a religion is controversial, freighted with potential dangers, and applicable only to some who claim the label humanist. How unfortunate that all of this was set aside in order to score a simplistic legal victory. As a religious Humanist, Jason Holden deserved to have his rights respected. AHA v. United States achieved that, but it did so in a needlessly retrograde and destructive way.

What Will Follow from This? Fortunately, AHA v. United States is a case whose issues are deeply interwoven with the facts of the controversy. For that reason the likelihood that its defective conclusion that secular humanism is a religion will contribute damaging precedent is probably modest. But in the larger domain of social rhetoric, it will likely resonate like a cannon-shot. In recent years Christian Right activists have been more muted in their arguments that humanism or secular humanism are religions – though there have been exceptions. In the 1990s a California school teacher who was an evangelical Christian sued, seeking to be exempted from a requirement to teach about the theory of evolution because that was part of the “religion of secular humanism.” The Ninth Circuit U.S. Court of Appeals rejected that argument, stating: “Neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are ‘religions’ for Establishment Clause purposes” (Peloza v. Capistrano Unified School Dist., 37 F. 3d 517 – Court of Appeals, 9th Circuit 1994). (Judge Haggerty’s decision acknowledged this decision but argued that its authority had been weakened by later decisions.) In 2000 evangelist David A. Noebel and high-profile Christian leader Tim LaHaye issued Mind Siege, an integrated series of books, videos, and instructional materials making the specific case that humanism is an alien religion. Noebel, in particular, continues to put forward similar arguments today.

As the October 30 decision in AHA v. United States becomes better known – and as it, inevitably, becomes separated in the public mind from such nuance as the case’s complexities provided – it seems likely to provoke an entirely unnecessary revival of those old tropes about the “religion of humanism.”

Conclusion. Whatever its final outcome may be, AHA v. United States is a vivid demonstration that advocacy organizations must strategize carefully before they embark on litigation. Had this case been pursued with just a slightly more complex argument, namely that certain secular beliefs should be treated as though they were religious beliefs for certain legal purposes, instead of a simple “humanism is a religion” argument, it might have obtained relief for its prisoner plaintiff while simultaneously achieving a higher social purpose. It could have further advanced the great secular project of replacing, where possible, freedom-of-religion law with freedom-of-conscience law. And it would have avoided the unintended consequence of causing a life stance and an organization that were not even involved in this controversy – ironically, the strand of humanism that most vigorously holds itself apart from religion – to be inaccurately and unwelcomely declared “a religion.”

Tom Flynn is executive director of the Council for Secular Humanism and editor of Free Inquiry. Ronald A. Lindsay is the President and CEO of the Council for Secular Humanism and the Center for Inquiry. Nicholas Little is the legal director of the Center for Inquiry.