I think what we're bumping up against here is the limitations of the
establishment clause. The short answer is no, I don't think
most courts would not bar the teaching of evolution under the establishment
clause even if it could be shown that a school board's motivations were
primarily to promote atheism. This isn't because atheism or materialism are
"scientific." It's because they don't possess the traditional indicia of a
"religion." Here, for example, is how the Third Circuit has defined a
"religion" for first amendment purposes, in Judge Adams' influential
concurring opinion in Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979) (a case,
incidentally, that was argued by one of my former partners). Religions:
1) ponder such issues as the meaning of life, the afterlife, or man's place
in the universe;
2) are extensive in scope and far-reaching in nature; and
3) are accompanied by the existence of certain formal and outside signs.
Other courts have expanded on these factors. For example, in *United States
v. Meyers*, 95 F.3d 1475 (10th Cir. 1996), the Tenth Circuit determined that
the defendant, self-described "Reverend of the Curch of Marijuana," could
not escape conviction on drug charges under the Religious Freedom
Restoration Act. The court mentioned the following factors concerning
whether something is a "religion" for first amendment purposes (this is a
long section to be quoting, but worth it for our present discussion):
"1. Ultimate Ideas: Religious beliefs often address fundamental questions
about life, purpose, and death. As one court has put it, "a religion
addresses fundamental and ultimate questions having to do with deep and
imponderable matters." Africa, 662 F.2d at 1032. These matters may include
existential matters, such as man's sense of being; teleological matters,
such as man's purpose in life; and cosmological matters, such as man's place
in the universe.
2. Metaphysical Beliefs: Religious beliefs often are "metaphysical," that
is, they address a reality which transcends the physical and immediately
apparent world. Adherents to many religions believe that there is another
dimension, place, mode, or temporality, and they often believe that these
places are inhabited by spirits, souls, forces, deities, and other sorts of
inchoate or intangible entities.
3. Moral or Ethical System: Religious beliefs often prescribe a particular
manner of acting, or way of life, that is "moral" or "ethical." In other
words, these beliefs often describe certain acts in normative terms, such as
"right and wrong," "good and evil," or "just and unjust." The beliefs then
proscribe those acts that are "wrong," "evil," or "unjust." A moral or
ethical belief structure also may create duties-duties often imposed by some
higher power, force, or spirit-that require the believer to abnegate
elemental self-interest.
4. Comprehensiveness of Beliefs: Another hallmark of "religious" ideas is
that they are comprehensive. More often than not, such beliefs provide a
telos, an overreaching array of beliefs that coalesce to provide the
believer with answers to many, if not most, of the problems and concerns
that confront humans. In other words, religious beliefs generally are not
confined to one question or a single teaching. Africa, 662 F.2d at 1035.
5. Accoutrements of Religion: By analogy to many of the established or
recognized religions, the presence of the following external signs may
indicate that a particular set of beliefs is "religious":
a. Founder, Prophet, or Teacher: Many religions have been wholly founded or
significantly influenced by a deity, teacher, seer, or prophet who is
considered to be divine, enlightened, gifted, or blessed.
b. Important Writings: Most religions embrace seminal, elemental,
fundamental, or sacred writings. These writing often include creeds, tenets,
precepts, parables, commandments, prayers, scriptures, catechisms, chants,
rites, or mantras.
c. Gathering Places: Many religions designate particular structures or
places as sacred, holy, or significant. These sites often serve as gathering
places for believers. They include physical structures, such as churches,
mosques, temples, pyramids, synagogues, or shrines; and natural places, such
as springs, rivers, forests, plains, or mountains.
d. Keepers of Knowledge: Most religions have clergy, ministers, priests,
reverends, monks, shamans, teachers, or sages. By virtue of their
enlightenment, experience, education, or training, these people are keepers
and purveyors of religious knowledge.
e. Ceremonies and Rituals: Most religions include some form of ceremony,
ritual, liturgy, sacrament, or protocol. These acts, statements, and
movements are prescribed by the religion and are imbued with transcendent
significance.
f. Structure or Organization: Many religions have a congregation or group of
believers who are led, supervised, or counseled by a hierarchy of teachers,
clergy, sages, priests, etc.
g. Holidays: As is etymologically evident, many religions celebrate,
observe, or mark "holy," sacred, or important days, weeks, or months.
h. Diet or Fasting: Religions often prescribe or prohibit the eating of
certain foods and the drinking of certain liquids on particular days or
during particular times.
i. Appearance and Clothing: Some religions prescribe the manner in which
believers should maintain their physical appearance,*1484 and other
religions prescribe the type of clothing that believers should wear.
j. Propagation: Most religious groups, thinking that they have something
worthwhile or essential to offer non-believers, attempt to propagate their
views and persuade others of their correctness. This is sometimes called
"mission work," "witnessing," "converting," or proselytizing." Id. at
1483-84 [End of long quotation]
I'd acknowledge (as I did before) that the law is a bit fuzzy at the margins
here. The Supreme Court has recognized that the freedom not to believe in a
religion is protected under the first amendment, leading some lower courts
to conclude that the "practice" of atheism is protected under the first
amendment's free exercise clause and cannot be disadvantaged under the
establishment clause. Thus, in the Seventh Circuit, prisoners who want to
attend atheist society meetings must be given the same accomodation as
prisoners who want to attend traditional religious services. However, when
the Court applies the establishment clause to prohibit an affirmative
practice by a state, it is usually to forbid the promotion of traditional
religious beliefs and practices. That said, it is possible that a court
could read the Supreme Court precedents to conclude that a science
curriculum designed with the specific and demonstrable intent of promoting
atheism fails under Lemon's purpose prong. Possible, but not likely in most
circuits
One could argue that this understanding of "religion" makes no sense. Why
should atheist and secular materialist ideology be favored over religious
ideology such as Christianity? That question, in fact, is at the deep core
of our social disputes over things like whether ID should be taught in
science classrooms. Religious people can point out, taking a cue from Ruse,
that some aspects of science often are taught in ways that are not
ideology-neutral. Religious people reasonably, I think, ask why it's
acceptable to teach foundational assumptions that exclude a creator when
those assumptions are as much a matter of faith as the foundational
assumption that there is a creator.
The response of most scientists seems to be that anything based on the
foundational assumption of a creator is not "science" because "science," by
definition, excludes reference to a creator. That may be a valid statement,
though personally I don't think it is, unless the definition of "science" is
a tautology devoid of historical meaning. But it is not in any event
relevant to the establishment clause question given how the establishment
clause law has developed.
Under a definition of "science" that excludes the foundational assumption of
a creator, iIf something is "science," then, it probably is not "religion,"
and may safely be taught in public schools, even if the purpose of the
teaching is to promote atheism. It does not follow, however, that anything
defined as "not science" is "religion," which is the assumption Pim seems to
want to make. English literature is not science under this definition.
Neither is art, music, history, gym class, or just about any other
traditional high school subject other than biology, chemistry, physics and
math. None of those subjects are barred under the establishment clause. It
follows that defining ID as "not science" fails to advance the ball under
any establishment clause test.
Pim will argue that defining ID as "not science" is essential because it
shows the board's purported secular purpose -- to enhance science education
-- to be a sham. This, however, also does not follow. A school board could
include a course in its curriculum, for example, called "Literary and
Philosophical Perspectives on Science." The course could include readings
from literature warning about overreaching in science -- say, Michael
Crichton's "Jurassic Park," or the movie "Blade Runner" -- as well as
secular cultural, philosophical and historical perspectives on the
epistemological limitations of the scientific method, including some
exposure to postmodern views of science. A valid secular purpose of this
course could be to enhance the school's science curriculum by exposing
science students to these critiques of science. I don't think anyone would
call this "Perspectives" course "science." The course as I've described it,
however, wouldn't have even the whiff of an establishment clause problem.
What showed the Dover board's purpose to be a sham was not the bucket into
which we ultimately dump ID -- "science" or "not science" -- it is the
history of the board's actions, which showed a deliberate effort to
introduce specific teachings about the doctrine of creation drawn from a
recognized religion, Christianity. Maybe this demonstrates that our
establishment clause jurisprudence is a mess. Does this have any connection
to what the framers and ratifiers of the Constitution meant by the
government establishing religion? Are fuzzy concepts like "motive" and
"public perception" good tools for deciding such difficult questions?
Should atheism be recognized as something like a religion for purposes of
the free exercise clause while being skated over under the establishment
clause? Mabye not, but the law is what it is.
On 1/8/06, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
> Dawsonzhu@aol.com wrote:
>
> > Pim wrote:
> >
> >> So far I have yet to see my hypothetical example addressed such as
> >> teaching evolution as a religion. As the hypothetical examples have
> >> shown, the existence of a legitimate secular purpose is highly
relevant.
> >
> >
> >
> > But there are no buildings and no doctrines as such in the traditional
> > sense. That evolution __can be__ a religion, is certainly the argument
> > that Ruse points out, and for __some__ people, it clearly sticks. But
> > that's
> > just it, it is individual people; and I doubt they are present in most
> > any K-12
> > schools where this whole issue is raised. Individuals can be
> > disciplined on
> > other grounds. But I say this with much fear and trembling, because,
> > unfortunately, justice is rarely even handed in this world.
> >
> > by Grace we proceed,
> > Wayne
>
> What if the reasons for teaching evolution is its anti-Christian and
> pro-atheistic character? Would that help? Would this render the secular
> primary purpose of teaching evolution, namely as a science, moot and
> would the court have to rule that the purposes of the board violated the
> establishment clause?
>
> Pim
>
Received on Mon Jan 9 12:22:09 2006
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