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Kitzmiller's Error: Defining "Religion" Exclusively Rather Than Inclusively

John H. Calvert

Liberty University School of Law, softback, 115 pp., 2009

Item# B148
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Volume 3, Number 2, Spring 2009

The Liberty University Law Review (Vol 3, No 2) was produced as a result of a symposium on Intelligent Design and the Law hosted at Liberty University in February 2009. Kitzmiller's Error is the lead article in the volume by attorney John H. Calvert. You can order the entire volume with this article and four others here.

In the Kitzmiller v. Dover Area School District, the court held that it was a violation of the Establishment Clause for a public school "to advise students of gaps/problems in Darwin's theory and of other theories of evolution, including but not limited to intelligent design," because the policy caused the state to endorse "religion." In reaching this conclusion Calvert argues that the court did not define "religion" functionally and inclusively as has the Supreme Court "[as] an aspect of human thought and action which profoundly relates the life of man to the world in which he live." Instead, the Kitzmiller court implicitly used a narrow discriminatory or exclusive definition of religion that limits the scope of "religion" to only beliefs in God. The discriminatory definition excludes from "religion" and the burdens of the Establishment Clause non-theistic beliefs that relate life to the world materialistically through matter, rather than mind. Calvert concludes that if the Kitzmiller court had used the inclusive functional definition rather than the exclusive discriminatory definition, its result would have been different.

About the Author:

John Calvert, J.D. received a B.A. in geology from the University of Missouri at Columbia in 1962 and a law degree in 1968 following two years of service in the U.S. Army. He practiced law with Lathrop & Gage LC, a large regional Midwestern law firm for 32 years until 2001. As a former Chairman of the Lathrop & Gage Corporate Department, he focused on corporate finance, business litigation, and corporate governance. During that practice he managed a number of legal engagements involving geology with respect to investments in mining and oil and gas ventures. In 2001 he departed Lathrop & Gage to co-manage, Intelligent Design Network, Inc., a non-profit organization that seeks institutional objectivity in origins science. He then switched his area of practice to constitutionally appropriate ways to teach origins science in public schools. Since then he has discussed his views with school teachers, school administrators, state and local boards of education, state legislative bodies and public officials. In May, 2005 he presented 23 expert witnesses during hearings before the Kansas State Board of Education regarding proposed changes to the Kansas Science Standards. He is the author of a number of articles about teaching origins that have been furnished to a variety of public school entities. He has also spoken at a number of public events and in a number of venues about the matter. He is a graduate of the Litigation Academy of the Alliance Defense Fund and is a member of the Honor Guard of that organization. He is a co-author of Teaching Origins Science in Public Schools (IDnet 2001); Intelligent Design, the Scientific Alternative to Evolution (National Catholic Bioethics Quarterly, Vol 3, No. 3, Autumn 2003); and The Rule: A one-act play about the trial of a biology teacher (IDnet 2003) and author of Are We Designs or Occurrences? Should Science and Government Prejudge the Question? (WorldNetDaily, Whistle Blower, Vol 14, No. 8. pp. 24-33, August 2005).
Table of Contents:

  1. Introduction
  2. Definitions Key to the Meaning of Religion
    1. Material or Natural and Intelligent Causes
    2. Materialism/Naturalism
    3. Evolution and Intelligent Design (ID)
      1. The historical character of origins science
      2. The Explanatory Filter
      3. Cosmological Evolution and ID
      4. Chemical Evolution and ID
      5. ID and Biological Evolution
  3. The Meaning of the word "religion"
    1. The Roots of Religion
    2. The meaning of "Religion" in the First Amendment
      1. Importance of the definition of religion in the First Amendment
      2. The word "religion" has one meaning in the First Amendment
      3. The meaning of "religion" must accommodate the growth of new kinds of religion
    3. A summary of the cases
      1. Religion includes disbelief
      2. Religions address ultimate questions, with the origin of life being the ultimate question
      3. The purpose of life is inseparable from the question of its origin
      4. A functional definition is necessary to avoid discrimination
      5. Because government may not take sides in the religious competition, it may not pass on the validity of religious claims
  4. The meaning of "secular" depends on the meaning of "religion"
  5. The defining characteristic of science is objectivity, not orthodoxy
    1. Science and religion address the same subject matter
    2. Science is objective while religion is orthodox
  6. Methodological Naturalism (MN) functions as a religious orthodoxy in origins science education
    1. MN is an orthodoxy, not a truth about the natural world
    2. MN is a religious orthodoxy
    3. MN in origins science lacks a scientific or secular purpose
      1. The stated purpose is religious, not secular
      2. The orthodoxy frustrates scientific testing of explanations
      3. MN is contrary to rather than equivalent to the scientific method
      4. MN is used irrefutably only in the area of science that impacts religion
      5. MN is a doctrine while Philosophical Naturalism if a belief
      6. MN is a religious orthodoxy promoted with religious zeal
  7. The Kitzmiller Court employed a discriminatory, exclusive definition of religion rather than a functional inclusive definition of religion, in assessing the religious effect of the ID Policy
    1. The Court incorrectly assessed the "religious" and scientific effect of the ID Policy using an incorrect definition of "religion"
    2. Government may not "gerrymander" the definition of religion to effect religious discrimination or deny the equal protection of the law
  8. The Court's use of an incorrect discriminatory definition of religion, resulted in a flawed Establishment Clause Analysis
    1. The ID Policy
    2. The Endorsement Test: The ID Policy neutralized a religious orthodoxy rather than endorsing one
    3. The Lemon Test: The ID Policy has a secular purpose that produces a neutral effect that eliminates an excessive entanglement
      1. The Entanglement Prong
      2. The Effect Prong
      3. The Secular Purpose Prong
    4. The use of MN in origins science education appears inconsistent with the Free Exercise Rights of the students and parents
  9. Conclusion

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