I’ve been writing (here and here) about a newly published law review article by Casey Luskin, “Darwin’s Poisoned Tree: Atheistic Advocacy and the Constitutionality of Teaching Evolution in Public Schools.” Luskin examines the way courts have struck down the teaching of alternatives to evolution due to historical associations with religion, even as they ignore anti-religious historical associations with Darwinism. He argues that religious associations of scientific views on origins should not be constitutionally fatal, but rather should be considered an “incidental effect.”

Luskin proposes a sound method for evaluating the constitutionality of teaching origins science. Let’s consider that method now. He notes:

Unfortunately, courts often apply a double standard when assessing the constitutionality of teaching non-evolutionary viewpoints of biological origins by taking criteria considered only applicable to secondary effects and treating those criteria as if they indicate primary effects. In such cases, courts ignore the scientific content of the non-evolutionary viewpoint and convert the (a) religious motives of proponents; (b) religious views of proponents; (c) religious implications of the concept; or (d) other religious associations (whether via people or groups, like fundamentalist Christians) connected to advocacy of that viewpoint, into primary effects. Thus, when non-evolutionary viewpoints are found to have a close historical relationship to religious advocacy, courts claim that there is a primary effect that advances religion, and the teaching of the viewpoint is ruled unconstitutional. But given that evolution is commonly found in close association with anti-religious advocacy, courts that will apply the law fairly and eschew double standards have two choices:

(1) Declare the teaching of evolution unconstitutional.

(2) Recognize that (a)-(d) represent “secondary” or “incidental” effects and thus are irrelevant to determining if a concept is constitutional for teaching in science classrooms. This applies whether the concept is the scientific theory evolution, or some non-evolutionary scientific viewpoint.

Under a fair analysis, associations between evolution and anti-religious advocacy could create a public perception of government preference for non-religion, and cause some religious people to feel like political outsiders. Hence, the double standard: evolution is not subjected to a critical analysis of historical religious or anti-religious associations, while non-evolutionary theories are removed from classrooms on that basis.

What is the solution? Luskin is very clear: It is not choice 1, i.e., removing evolution from schools. Luskin (like Discovery Institute) vigorously opposes having evolution declared unconstitutional or removing it from the classroom. Shall we say this a third time? Fine, lest anyone misunderstand:

[T]he solution is not to declare evolution unconstitutional, as that would overturn decades of legal precedent holding that teaching evolution is legal and harm student learning. … [T]eaching evolution is good pedagogy because neo-Darwinism has been tremendously influential in modern biology. Excluding a scientific viewpoint from classrooms simply because of the religious (or anti-religious) advocacy of its proponents is not only bad law, it would harm science education.

Luskin anticipates that some critics might try to misrepresent his viewpoint. However, the goal of the article is simply to encourage reform in legal tests used to analyze the constitutionality of teaching viewpoints on origins. In fact, Luskin argues that the legal tests he is advocating are the best way to save evolution from being declared unconstitutional under current misguided law. Because critics habitually distort, he emphasizes the need for clarity:

Preemptive Clarification

Many have tried to equate the teaching of evolution with advocating atheism or secular humanism in attempts to bar evolution from the classroom … Having evolution declared unconstitutional to teach in public schools is neither my desire nor the necessary result of my argument. Though I am a scientific skeptic of neo-Darwinian evolution, I firmly believe that it can be formulated as a scientific theory and that teaching evolution in public school science classrooms should remain constitutional. Unlike some critics of evolution, I do not believe evolution is a religion.

Additionally, from the outset I must recognize that many religious persons, indeed many devout Christians who are scientists, claim to find no conflict between evolution and their religious views. Though a huge proportion of Darwinians are atheists or secular humanists, many are not.

Therefore, I am not arguing that all evolutionary scientists are atheists who preach an anti-religious message, nor am I arguing that acceptance of neo-Darwinian theory mandates belief in atheism or abandonment of traditional theism. My purpose in this present article is not to enter the debate about the correct relationship between neo-Darwinian evolution and religion. Rather, this article aims to review how leading advocates of evolution have promoted their views alongside anti-religious activism in a way which, under current legal tests, could be perceived as inhibiting, denigrating, or actively opposing religion, and endorsing anti-religious viewpoints. Any fair analysis must conclude that under current law, the anti-religious activities and rhetoric associated with the advocacy of evolution threatens the teaching of evolution in public schools.

The [ultimate] problem, however, is not with the scientific theory of evolution or the activities and activism of its advocates, but rather with the current legal tests that are used to assess whether a concept is constitutional to teach in public schools. My aim is to expose a deficiency in some current legal tests that could disbar the teaching of evolution and propose new tests whereby the teaching of evolution in public schools can be safely justified.

Many might wish to dismiss the anti-religious activism associated with the advocacy of evolution as constitutionally irrelevant. However, pro-religious activism associated with opposition to evolution has long been cited to prevent public schools from teaching non-evolutionary views. If evolution is associated with anti-religious activism, this must factor into constitutional analyses. Jurists who appreciate that justice is blind and that the law must be applied fairly will agree that current legal tests striking down such non-evolutionary views could similarly jeopardize the teaching of evolution.

He summarizes his argument:

If the public is aware of the close historical association between the advocacy of evolution and anti-religious activism, then the teaching of evolution may make many religious Americans feel like political outsiders. Despite the fact that many scientific organizations and some influential religious organizations officially support compatibility between evolution and religion, widely known anti-religious activism associated with evolution could also “poison the tree” from which evolution-education falls. The past ten years have seen the rise of a vocal group of “new atheists” who vehemently maintain that evolution refutes religious belief. But the arguments of “new atheists” are hardly new — such arguments have been widespread and widely known throughout society since the time of Darwin. Given such an historical association between evolution and anti-religious activism, current tests for assessing the constitutionality of teaching theories of biological origins, when applied fairly, could conceivably render the teaching of evolution unconstitutional.

There are good reasons to expect that such an unwanted outcome can be avoided. Science stands or falls on the evidence. Evolution is a legitimate scientific theory that public schools should be able to teach. The personal religious (or anti-religious) beliefs, motives, affiliations, and even activism of evolutionary scientists do not determine whether their views about evolution are scientific, or scientifically correct. In keeping with this principle, some legal tests for interpreting the Establishment Clause avoid committing the genetic fallacy, and appreciate that historical connections between a particular viewpoint and religious (or anti-religious) advocacy are secondary to determining whether that viewpoint actually is scientific.

Legitimate scientific theories like evolution should not be disbarred from science classrooms simply because of the religious (or anti-religious) views and activism of their proponents. Therefore, in order to preserve the teaching of evolution, it may be necessary to revise legal tests that are applied to assess the constitutionality of teaching biological origins. To put it bluntly, if evolution is to continue to be taught in public schools, courts must abandon inquiries which look at the historical associations between a viewpoint on origins and religion (or non-religion).

Thankfully, there are good legal bases for abandoning such tests. Legal tests that scrutinize the historical associations of scientific theories with religion or non-religion are flawed because they don’t ask whether the primary effect of teaching a viewpoint on origins is to advance scientific knowledge. Rather, historical associations with religion should be considered an incidental effect of teaching a scientific theory. An incidental effect is a byproduct of the statute, but does not affect constitutionality. Luskin further describes what’s meant by an “incidental effect”:

State action that results in an indirect or secondary benefit (or harm) to religion is thus not unconstitutional. In Agostini v. Felton, the Court added that it is not the magnitude of the benefit that matters; the question is whether the effects/benefits of a policy provided are direct or merely a consequence of implementing a religiously neutral or secular principle. Such reasoning has been used to uphold many programs which may have resulted in incidental benefits to religion but were implemented “generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited” under criteria that are “in no way skewed towards religion.” [Luskin quotes Witters v. Washington Dep’t of Servs. for the Blind.]

Indeed, some courts have already applied such reasoning in contexts relating to origins science. In Crowley v. Smithsonian Institution, a federal district court found thatthat evolutionary exhibits at the Smithsonian had not “established ‘secular humanism’ because the ‘impact [on religion] is at most incidental to the primary effect of presenting a body of scientific knowledge.'”

Luskin concludes by asking, if his preferred approach for testing constitutionality were to be more widely adopted, what would the implications be for teaching intelligent design? Like Discovery Institute, Mr. Luskin opposes mandating ID in public school curricula. But he is here addressing a different question. Instead of discounting intelligent design simply because of its supposed historical associations with religion, Luskin argues, jurists would be forced to examine the constitutionality of teaching ID. He concludes:

As discussed, courts must not strike down the teaching of evolution, and thus option (2) is the only viable solution for preserving the integrity of science education. Yet this option implies that courts can no longer objectively consider historical associations of non-evolutionary viewpoints with religious activism when assessing the constitutionality of teaching non-evolutionary scientific viewpoints. Indeed, such an approach would defeat common arguments against the constitutionality of teaching intelligent design in public schools.

Luskin seeks to restore consistency to the law while saving evolution from a little-recognized trap. Since historical associations with religion have been a primary legal argument against teaching intelligent design, his approach, if accepted, would seem to clear the way for recognizing the constitutionality of teaching ID in public schools.

Before critics rush in to claim Luskin is saying something he’s not, let us recapitulate. His article is not arguing that evolution should be unconstitutional to teach in public schools or that it should not be taught. Quite the contrary, he’s arguing that current legal tests are flawed precisely because, if they were applied fairly, they would prevent schools from teaching scientific theories like evolution.

Moreover, the argument of his article says nothing about the wisdom or advisability of teaching ID, but simply about its constitutionality. In education as in many other areas of life, something can be legal without necessarily being a good idea (see our Science Education Policy). Indeed, many bad ideas are perfectly legal. Those are different things, let’s not forget.

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