02 January 2006

Why it matters:

In today's Baltimore Sun, there is an op-ed by New Hampshire Union Leader editorial page editor Andrew Cline. Cline makes an argument that I've heard a lot from religious conservatives lately, that the courts go to far when they rule that government "endorsement" of religion is unconstitutional:
I disagree with the wording of that statement. But it defies logic to say it establishes a state religion. And in fact, Judge Jones does not conclude that. Under Establishment Clause jurisprudence, he doesn't have to.

In the 1984 case Lynch v. Donnelly, Supreme Court Justice Sandra Day O'Connor created a new standard that redefined the Establishment Clause. Government policies don't have to "establish" a state religion - as the Constitution requires - to be unconstitutional. They simply have to "endorse" a religious point of view. Justice O'Connor succeeded in rewriting the First Amendment, and Judge Jones used that rewrite to strike down the intelligent design statement.

As the Establishment Clause morphs into a general anti-religion clause and judges continue to strike down not the establishment of religion, or even the teaching of it, but the mere practice of pointing it out to students, it is easy to imagine a day when no reference to God, religion or spirituality will be allowed in school.
I think Cline manages to misunderstand a couple of different things here. He obviously doesn't have a clue about why O'Connor defined the "endorsement" test, or how the circumstances of this case illustrate the value of that standard. He also doesn't seem to grasp exactly what the Dover School Board was attempting to do.

Cline writes:
After all, the Dover school board did not replace evolution with intelligent design. The board made students aware of its existence and instructed them to make up their own minds. If that is unconstitutional, then surely it is conceivable that some ambitious parent could sue successfully under the Establishment Clause because a civics teacher quotes George Washington - "The fate of unborn Millions will now depend, under God, on the courage and conduct of this army" - or Abraham Lincoln - "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in."
This makes it appear that the Board was merely mentioning religion in the statement, and that the policy was struck down on those grounds alone. If that were the case, I might actually agree that the decision was problematic. There are a lot of people out there that have religious concerns regarding evolution, and I think that it is reasonable to mention that at the start of a biology course. I think that it's important to make the difference between science and religion clear to the students, and explain which one you are talking about and which one you should speak to your parents and/or pastor about.

That's not what the Dover School Board did in their statement. The Dover Board crafted a statement that did not simply mention Intelligent Design; it was clearly written in such a way as to favor Intelligent Design at the expense of evolution. Judge Jones discusses this in one of the sections of his decision:
In summary, the second paragraph of the disclaimer undermines students' education in evolutionary theory and sets the groundwork for presenting students with the District's favored religious alternative.

Paragraph three of the disclaimer proceeds to present this alternative and reads as follows:
Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.
P-124. Students are therefore provided information that contrasts ID with "Darwin's view" and are directed to consult Pandas as though it were a scientific text that provided a scientific account of, and empirical scientific evidence for, ID. The theory or "view" of evolution, which has been discredited by the District in the student's eyes, is contrasted with an alternative "explanation," as opposed to a "theory," that can be offered without qualification or cautionary note. The alternative "explanation" thus receives markedly different treatment from evolutionary "theory."
It's one thing to mention that people have religious objections to evolution, and that there are religious alternatives available. It's another to denigrate the scientific theory and push a religious one in its place. (It's yet a third to put together a movement dedicated to falsely claiming to do science just to dilute the teaching of evolution, but that's another topic.)

The policy that Judge Jones declared unconstitutional is a true endorsement of a specific religious viewpoint at the expense of all others, not "the mere practice of pointing it out to students." Cline is definitely tilting at a strawman, not the judge's actual decision. Still, I think it's worth pointing out exactly why the endorsement test is so important, and why this case is such a good example of that importance.

Cline attributes the "endorsement" test to a concurring opinion written by Sandara Day O'Connor in the 1984 case Lynch v. Connoly. Cline managed to avoid mentioning why O'Connor thought that it is inappropriate for government to endorse religion. Personally, I think she provided a very clear and compelling explanation:
Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.
O'Connor's explanation is quite similar to one that was provided by Justice Black in an earlier case (I suspect that O'Connor's endorsement criteria were not created ex nihlo, as Cline would have us believe, but were instead a natural evolution of existing precedent.):
The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.
The testimony of the plaintiffs in the Dover case, unfortunately, illustrates just how right Black was.

To begin with, it is important to remember that while it is possible that evolution is inconsistent with some people's religion, it is not inconsistent with everyone's religion. Some people may be completely happy with evolution being the mechanism used by God to create life, and pushing the "God the inept tinkerer" view of Intelligent Design may be incompatible with their religion. Mr. Stough testified that this was certainly true in his case:
Q. Tell us how you believe you've been harmed.

A. I believe that the actions of the school board in adopting this policy including intelligent design have usurped my authority to be the one in charge of my daughter's religious education.

Intelligent design posits an intelligent designer, which for me they're talking about God. It is a more literal translation of the Bible than I would accept and I plan on teaching my daughter, that type of non-literal interpretation.
This same concern was voiced by other plaintiffs, including Barrie Callahan and Christie Rehm. Personally, I think it is entirely reasonable for parents to want the government, at all levels, to stay the hell away from the religious education of their children. When the government gets involved in endorsing religious beliefs, you run the risk of having things like this happen:
Q. And can you tell us what harm you believe that it has caused you?

A. Late in '04 my daughter came home from school, and I was discussing kind of what was going on in the district with her. And she looked at me and she said, Well, Mom, evolution is a lie, what kind of Christian are you, anyway, which I found to be very upsetting.
Upsetting is probably putting it mildly.

Outside of the issues involving the right of the parents to determine the child's religious upbringing, there are other issues as well, involving what Justice Black referred to as, "the hatred, disrespect and even contempt of those who held contrary beliefs." Early in the trial, Bryan Rehm testified about what he found he had to deal with as a result of standing up for his constitutional rights:
Now people stare. They know you're a Plaintiff or they know in this particular case that I'm a candidate opposing the school board, and you can't sit there and not worry about who's looking at you or what's going to happen, you know. You'll go out and regularly be called inappropriate things centering around the concept of atheist.

They don't know me. They don't know that I'm the co-director of the children's choir at church or that I run the music halfway at the second service, or that, you know, my wife and I run Vacation Bible School. Yet they have no problem going around calling me an atheist because my particular religious viewpoint doesn't agree with that of the school board, which is a public entity not a religious one.
That is why we have an establishment clause in the first place. We have an establishment clause to keep people from having to be singled out because of their religious beliefs.

Unfortunately, Bryan Rehm was hardly the only person involved in the dispute to have their religious views attacked. Casey Brown was called an atheist by a member of the school board after resigning in protest over the decision. Another member of the board told her that she would be going to hell. The teachers had to deal with having people believe that they must be atheists if they did not agree with the board. Never mind that "atheist" should not be an insult in America; never mind that it is entirely inappropriate to question people on their religious views when the topic is public education; we have an establishment clause because people who have no religious beliefs should be able to fully participate in their government's actions.

Perhaps better than anyone else, Frederick Callahan summed up what is at stake in cases like this:
You know, I've read the polls. I think, you know, a lot of people feel that this should be, that this should be in, that it doesn't cross the line. There are a lot of people that don't care. But I do care. It crosses my line.

And, you know, I've been -- there have been letters written about the Plaintiffs. We've been called atheists, which we're not. I don't think that matters to the Court, but we're not. We're said to be intolerant of other views.

Well, what am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to. I think this is clear what these people have done. And it outrages me.
By endorsing a religious view, the Dover School Board overstepped their permitted bounds, and in so doing harmed their community. I don't know how much more clearly I can say that: endorsing a religious view at the expense of others divides people along religious lines. Our founding fathers made sure that we had an establishment clause because they were tired of just that sort of foolishness. Unfortunately, more than 200 years later small minded idiots continue to try to force their views on others. Fortunately, we have (at least for the moment) an independent federal judiciary that can help us protect our rights.

5 Comments:

Anonymous Anonymous said...

"For the moment", is the operative phrase here.

10:58 PM  
Anonymous Jerry Schwarz said...

For a history of the various tests the Supreme court has applied to determine whether government action is constitutional I recommend "Divided by God" by Noah Feldman

According to Feldman the "endorsement test" first promulgated by O'Connor in Donnelly is a relaxation of an earlier requirement known as the "Lemmon test". The latter required actions to have a "secular purpose". O'Connor applied the relaxed test in Donnelly to reach the conclusion that a particular creche was constitutional. Five years later she applied the same test to reach the opposite conclusion for a different creche.

11:17 PM  
Anonymous Anonymous said...

The endorsement test is a natural and straightforward result of a famous summary of the establishment clause's meaning, as stated by Justice Hugo Black in his majority opinion in Everson v. Board of Education of Ewing Township, N.J., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, rehearing denied, 330 U.S. 855, 67 S.Ct. 962, 91 L.Ed. 1297 (1947). One element in Justice Black's summary in "Everson" is that "[n]either [a state nor the federal government] can pass laws which aid one religion, aid all religions, or prefer one religion over another."

I am a lawyer and I describe my lack of relgious affilation and belief as F.I.S.H.M.A.N. (Freethinking Independent Secular Humanis Moderate Agnostic Nontheist).

9:04 AM  
Anonymous Nacho said...

Wonderful post. Thanks. I've also been carrying out extensive conversations on my site regarding evolution and ID.

Part of the difficulty we face is that we, as in Science and opponents of ID, are always in reaction mode. We keep having to defend, defend, and trot out the same arguments. We need to take the lead in producing positively crafted arguments that take the initiative from advocates of ID. We must work at having them have to defend constantly the why and wherefore of their position. It might seem to some that that is precisely what is happening, but not the case. Right now the scientific establishment has to keep making the case for what is science and why ID does not count as science, etc. The attacks from the other side keep varying, so that we constantly have to be defending. In other words, advocates of ID have a basic rhetorical strategy of constantly trying to reconfigure the ground.

Thanks again!

12:29 PM  
Blogger monado said...

Wonderfully put and very clear!

11:02 AM  

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