New Law Review Article: Zeal for Darwin's House Consumes Them: How Supporters of Evolution Encourage Violations of the Establishment Clause
A few months back, Liberty University Law Review released an article, "Zeal for Darwin's House Consumes Them: How Supporters of Evolution Encourage Violations of the Establishment Clause," I published in their journal last year. The article came after a legal symposium they hosted last year that included speakers such as Ed Sisson, Jay Wexler, Arnold Loewy, John Calvert, and myself. Wexler and Loewy are, of course, ID-critics so it made for an interesting dialogue. My experience at the symposium was that all were highly civil and thoughtful in the exchange. Below I reproduce the introduction to my article, and in a subsequent post will reprint my analysis of the decision in C.F. v. Capistrano Unified School District from last year.
The common stereotype in the controversy over teaching evolution holds that it is the opponents of evolution who are constantly trying to "sneak religious dogma back into science education."1 While perhaps in some instances this caricature is not entirely undeserved,2 the mainstream media and legal community pay scant attention to incidents where proponents of Darwinian evolution transgress the boundary between church and state erected by the Establishment Clause. By documenting ways that evolution advocates encourage violations of the Establishment Clause--in some instances, explicitly advocating state endorsement of pro-evolution religious viewpoints in the science classroom--this Article will show the impropriety of the common "Inherit the Wind stereotype."3
To be sure, one area where proponents of evolution do not violate the Establishment Clause is in the mere fact that public schools teach the scientific evidence supporting neo-Darwinian evolution (evolution).4 In the foundational 1968 case Epperson v. Arkansas, not only did the U.S. Supreme Court plainly rule under the presumption that teaching evolution is constitutional, but it effectively ruled that the failure to teach evolution would likely be unconstitutional because any such prohibitions would be viewed with suspicions of having been animated by unconstitutional religious motivations.5
The guiding principle behind the Court's ruling in Epperson was the neutrality doctrine, which requires that the government may not prefer one religious sect over another, or religion over non-religion:
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. . . . Neither [a State nor the Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . [T]he State may not adopt programs or practices in its public schools or colleges which aid or oppose any religion. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma.6While Establishment Clause jurisprudence has long been marked by a lack of judicial consensus, the neutrality doctrine and its prohibition against sectarian preference by the state, as emphasized in Epperson, has a strong rooting in the case law. In one instance, the prohibition on "denominational preference" was called by the U.S. Supreme Court the "clearest command" in Establishment Clause legal doctrine.7 Another Supreme Court decision described the rule that "government should not prefer one religion to another" as "a principle at the heart of the Establishment Clause."8 Yet it is this very principle that some latter-day defenders of Darwin would disregard in their zealous advocacy for evolution education.
Although this Article will not critique the neutrality doctrine, it should be recognized that some legal scholars have called religious neutrality a goal that is "illusory," "elusive,"9 or perhaps even leading to an inappropriate "equation of neutrality with secularism."10 Steven D. Smith explains that Epperson's mandate for religious neutrality, if applied evenhandedly, could lead to absurd results where "[t]he theory of evolution contradicts, and thus opposes some (fundamentalist) religious beliefs" and "[t]herefore, the constitutional requirement of religious neutrality absolutely prohibits the state from teaching evolution in public schools."11 Likewise, University of California (UC) Berkeley law professor Phillip Johnson observes:
Whether schools that avoid the topic of religion altogether are thereby "neutral" towards religion is debatable. For one thing, the schools have to teach subjects--biology in particular--which touch directly upon matters of religious controversy. A textbook that teaches that the human species evolved gradually over millions of years from simple life forms is anything but neutral from the viewpoint of Biblical literalists.12
Smith further criticizes the neutrality doctrine as necessarily inviting a "discourse of demonization," because it makes "'motive' or 'purpose' dispositive of constitutionality [and thus] inevitably encourages opponents of a particular law to try to show the law was animated by religious hostility or bigotry."13 According to Smith, the "neutrality doctrine sponsors a constitutional discourse in which adversaries try to demonize each other or to portray each other in the worst plausible light."14
The present author agrees with Smith's contention. The intense and widespread use of ad hominem attacks against Intelligent Design (ID) proponents, and the obsession many ID critics display regarding the religious motives, beliefs, and affiliations of ID proponents, seem to be related to the judicial scrutiny of religious motives of Darwin-skeptics in cases like Epperson, McLean v. Arkansas, Edwards v. Aguillard, Kitzmiller v. Dover Area School District, and others. Legal rules scrutinizing religious motives have spurred the evolution lobby to devote entire scholarly articles and books15 to investigating and harping upon the alleged religious motives, beliefs, and affiliations of ID proponents. Their argument basically holds that the religious beliefs, motives, and affiliations of ID proponents somehow invalidate or disqualify ID from being considered scientific and constitutional to teach in public school science classrooms.
Investigations by ID critics of the religious activities of ID proponents are not mere abstract exercises: in the Kitzmiller ruling, Judge Jones praised philosopher Barbara Forrest for having "thoroughly and exhaustively chronicled . . . [the] history of ID" and for "provid[ing] a wealth of statements by ID leaders that reveal ID's religious, philosophical, and cultural content."16 Given that over ninety percent of our country believes in God,17 and given that many leading ID critics exhibit anti-theistic motives, beliefs, and affiliations,18 it is astounding that Judge Jones found it relevant to his constitutional analysis in Kitzmiller that "many leading advocates of ID . . . believe the designer to be God."19 It is hard to imagine a more egregious offense to the principles underlying the First Amendment than a federal judge arguing that the private religious orientations of scientists backing an idea somehow contribute to making that idea constitutionally unfit for teaching in public schools.
This Article's intent, however, is not to demonize anyone, nor will this Article critique the neutrality doctrine. Rather, it will explore instances where evolutionists zealously encourage the government to prefer pro-evolution religious viewpoints (theistic, non-theistic, or atheistic) over viewpoints that oppose evolution. Some of these viewpoints opposing evolution are patently religious. Others are considered scientific by their proponents, but are stridently labeled as religious by their critics. Despite the public image that the defenders of evolution are the ones upholding the separation of church and state, this Article will show that the core of this very principle--the First Amendment's prohibition of "denominational preference"--is what many evolution lobbyists are encouraging the state to offend.
Part II will review case law showing that evolutionists do not encourage violations of the Establishment Clause simply by advocating the teaching of evolution or opposing the teaching of creationism in public schools. Part III will discuss how zeal for Darwin encourages certain violations of the Establishment Clause. Three themes will emerge during Part III's analysis.
First, creationism has been firmly deemed a religious viewpoint by multiple courts, but teaching ID in public schools has only been addressed by one federal trial court, and ID proponents consider ID to be scientific and thereby constitutional for both advocacy and critique in public schools. Critics allege that both ID and creationism are religious viewpoints, and they oppose the advocacy of both views in public schools. (On this point, the present author agrees with evolutionists with respect to teaching creationism, but disagrees with them with respect to teaching ID.) But evolutionists--who strongly hold ID is religion--ignore the First Amendment's prohibition on inhibiting, disapproving, or opposing religion by actively supporting attacks on ID and creationism in public schools.
Second, evolutionists purport to oppose advocating religious viewpoints in public schools, but leading lobbyists for evolution education unashamedly advocate that public school teachers endorse and advocate pro-evolution theistic religious viewpoints in science classrooms to help students accept evolution.
Third, many textbooks used in public schools promote evolution along with philosophical materialism, preferring non-theistic or atheistic religious viewpoints over theistic religious viewpoints. This constitutes government preference for various non-theistic or atheistic religious viewpoints that support evolution in opposition to religious viewpoints that do not support evolution.
The hope is that this discussion can help prevent future offenses to the separation of church and state that result from overzealous advocacy on behalf of Darwin.
References Cited in Introduction:
[1.] Stephen Pinker, endorsement on back cover of BARBARA FORREST AND PAUL GROSS, CREATIONISM'S TROJAN HORSE: CREATIONISM AND THE WEDGE OF INTELLIGENT DESIGN (2004).
[2.] For example, in the Kitzmiller case, it became apparent that some Dover School Board Members "had utterly no grasp of ID [intelligent design]" and "chose to change Dover's biology curriculum to advance religion." Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 759, 747 (M.D. Pa. 2005).
[3.] See PHILLIP JOHNSON, DEFEATING DARWINISM BY OPENING MINDS 24-36 (1998).
[4.] Neo-Darwinism is "[t]he modern belief that natural selection, acting on randomly generated genetic variation, is a major, but not the sole, cause of evolution." DOUGLAS J. FUTUYMA, EVOLUTION 550 (2005).
[5.] Epperson v. Arkansas, 393 U.S. 97 (1968).
[6.] Id. at 104-07 (citations and internal quotation marks omitted).
[7.] Larson v. Valente, 456 U.S. 228, 244 (1982).
[8.] Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994).
[9.] STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM 16, 78 (1995).
[10.] Id. at 82.
[11.] Id. at 83.
[12.] Phillip E. Johnson, Concepts and Compromise in First Amendment Religious Doctrine, 72 CAL. L. REV. 817, 823 (1984). Johnson clarified that he does not thereby oppose the teaching of evolution:
The point here is not that the public schools are doing something wrong in teaching evolutionary biology. . . . The schools ought to teach their students what they need to know, whether or not the teaching touches on controversial subjects. But what do the students need to know, and what do they need to be warned against? . . . Although it is possible to be more or less fair minded about such matters, there is no such thing as dead-center neutrality in comparison to which all other positions are partisan.Id. at 824.
[13.] STEVEN D. SMITH, GETTING OVER EQUALITY: A CRITICAL DIAGNOSIS OF RELIGIOUS FREEDOM IN AMERICA 116 (2001).
[15.] See BARBARA FORREST & PAUL GROSS, CREATIONISM'S TROJAN HORSE: THE WEDGE OF INTELLIGENT DESIGN (2004). Steven G. Gey, Matthew J. Brauer, Barbara Forrest, Is It Science Yet? Intelligent Design Creationism and the Constitution, 83 WASH. U. L.Q. 1, 19- 47, 58-75 (2005); Peter Irons, Disaster in Dover: The Trials (and Tribulations) of Intelligent Design, 68 MONT. L. REV. 59 (2007); Frank S. Ravitch, Intelligent Design in Public University Science Departments: Academic Freedom or Establishment of Religion, 16 WM. & MARY BILL RTS. J. 1061 (2008); Barbara Forrest, The Non-Epistemology of Intelligent Design: Its Implications for Public Policy, SYNTHESE, Apr. 15, 2009, http://www.springerlink.com/content/w76403r4w2226v34/.
[16.] Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 719 (M.D. Pa. 2005).
[17.] Brian Braiker, NEWSWEEK Poll: 90% Believe in God, NEWSWEEK, Mar. 31, 2007, http://www.msnbc.msn.com/id/17879317/site/newsweek/print/1/displaymode/ 1098/.
[18.] See Casey Luskin, Any Larger Philosophical Implications of Intelligent Design, or Any Religious Motives, Beliefs, and Affiliations of ID Proponents, Do Not Disqualify ID from Having Scientific Merit (Sept. 8, 2008), http://www.discovery.org/a/7081.
[19.] Kitzmiller, 400 F. Supp. 2d at 718.