...Charitably read, Peloza's complaint at most makes this claim: the school district's actions establish a state-supported religion of evolutionism, or more generally of "secular humanism." See complaint at 2-4, 20. According to Peloza's complaint, all persons must adhere to one of two religious belief systems concerning "the origins of life and of the universe:" evolutionism, or creationism. Id. at 2. Thus, the school district, in teaching evolutionism, is establishing a state-supported "religion."

We reject this claim because neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are "religions" for Establishment Clause purposes. Indeed, both the dictionary definition * of religion* and the clear weight of the caselaw* are to the contrary. The Supreme Court has held unequivically that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not. Edwards v. Aguillard, 482 U.S. 578, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987) (holding unconstitutional, under Establishment Clause, Louisiana's "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act").

Peloza would have us accept his definition of "evolution" and "evolutionism" and impose his definition on the school district as its own, a definition that cannot be found in the dictionary, in the Supreme Court cases, or anywhere in the common understanding of the words. Only if we define "evolution" and "evolutionism" as does Peloza as a concept that embraces the belief that the universe came into existence without Creator might he make out a claim. This we need not do. To say red is green or black is white does not make it so. Nor need we for the purposes of a 12(b)(6) motion accept a made-up definition of "evolution." Nowhere does Peloza point to anything that conceivably suggests that the school district accepts anything other than the common definition of "evolution" and "evolutionism." It simply required him as a biology teacher in the public schools of California to teach "evolution>" Peloza nowhere says it required more.

The district court dismissed his claim, stating:

Since the evolutionist theory is not a religion, to require an instructor to teach this theory is not a violation of the Establishment Clause.... Evolution is a scientific theory based on the gathering* andstudying of data, and modification of new data. It is an established scientific theory which is used as the basis for many areas of science. As scientific methods advance and become more accurate, the scientific community will revise the accepted theory to a more accurate explanation of life's origins. Plaintiff's assertions that the teaching of evolution would be a violation of the Establishment Clause is [sic] unfounded.

Id. at 12-13. We agree....

John E. Peloza v. Capistrano Unified School District, 37 F. 3d 517

*Footnotes in original are omitted here

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