So what if the legislative history shows that there was a religious or
anti-religious motivation but the claimed primary secular purpose was to
teach a science or to teach scientific controversies, would this be
sufficient to reject the law? Just because there are also some religious
motivations that played a role?
In other words, requiring to teach evolution would be unconstitutional
if the legislators had other motives in addition to the claimed secular
purpose?
> My view is that the abstract determination of whether something meets
> some definition of "science" is irrelevant under the establishment
> clause, period. What matters is the motive to promote religion and the
> public perception that religion is being endorsed by government.
So irregardless of whether or not there exists a secular purpose
(motive) you would consider the existence of 'motives' to be solely
guided by the 'motives' of the legislators, even if it serves a primary
secular purpose?
If public perception is that evolution endorses or denies a particular
religion then that should sufficient for evolution to be rejected based
on the establishment clause.
Not that the establishment clause is not just about pro-religion but
also about anti-religion. It's irrelevant if evolution is religious or
atheism is a religion.
> One more time for the logically and legally challenged:
Don't be too harsh on yourself.
>
> A. The "endorsement" test under the establishment clause looks to the
> relevant public's perception of the government's actions: would the
> public percieve a government endorsement of religion.
Or rejection of religion.
> B. The "purpose" prong of the Lemon test asks about the government's
> motives: did the government intend to promote religion or did the
> policy have a valid secular motive.
The existence of a valid secular _purpose_ is relevant, similarly the
absence of a valid secular purpose makes the law quite suspect.
> C. Neither the question of public perception nor the question of
> government intent relate to any external, expert classification of a
> governmental policy as "science," "not science," or anything else.
> These are questions of subjective perception and motive, to be
> determined based on each case's factual setting. They are not
> questions of ontology or ultimate objective meaning.
I see that as illogical. Teaching something as a science even though it
has significant religious implications may still pass the endorsement
test (public perception), as long as a valid secular purpose, in this
case 'teaching science' exists.
> D. Therefore, the broad question of whether something is or is not
> "science" is irrelevant to an establishment clause case. Q.E.D.
Sorry, overruled by virtue of incorrect premises.
>
> As to the atheist example:
>
> A. The establishment clause prohibits the establishment of "religion."
Or the denial of religion.
> B. "Religion" is typically defined by courts to mean metaphysical
> beliefs coupled with indicia of a "cultus," such as churches, priests,
> authoritative leaders, holidays, and the like.
> C. Atheism has no indicia of a cultus.
> D. Therefore, a court would not likely find that an atheistic motive
> for teaching evolution violates the establishment clause; the question
> whether evolution is or is not "science" in a broad sense is
> irrelevant. Q.E.D.
Again poorly argued since it focuses on a single part of the
establishment clause. A law cannot be particularly friendly or hostile
towards religion.
"*The "establishment of religion" clause of the First Amendment
means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in
any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance or
non-attendance. No tax in any amount, large or small, can be levied
to support any religious activities or institutions, whatever they
may be called, or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious organizations
or groups and /vice versa/. In the words of Jefferson, the clause
against establishment of religion by law was intended to erect "a
wall of separation between church and State.""
**EVERSON v. BOARD OF EDUCATION OF THE TOWNSHIP OF EWING ET AL.
*SUPREME COURT OF THE UNITED STATES
330 U.S. 1
February 10, 1947, Decided
C. In order to determine if the stated secular purpose overrides any
other religious motives/purposes and is not a sham, insincere or
trivial, it is inevitable for the court to look at the issue of science.
Even though evolution may be interpreted to a particular 'observer' as
being hostile to religious faith, it's effect is overridden by the
existance of a valid secular purpose.
D. The defendants argued that ID being science was a valid secular
purpose and that such a valid secular purpose may override the personal
statements by any individual board members which show religious motives.
In other words, a government may not act for purely religious motives
and if a particular secular motive is argued, it has to be sincere and
not a sham.
> I'd like to see your position outlined in a similar fashion.
>
A. The "endorsement" test under the establishment clause looks to the
relevant public's perception of the government's actions: would the
public percieve a government endorsement OR DISAPPROVING of religion.
The endorsement test, proposed by Justice Sandra Day O’Connor, asks
whether a particular government action amounts to an endorsement of
religion. According to O’Connor, a government action is invalid if
it creates a perception in the mind of a reasonable observer that
the government is either endorsing or disapproving of religion. She
expressed her understanding of the establishment clause in the 1984
case of /Lynch v. Donnelly,
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=493>/
in which she states, “The Establishment Clause prohibits government
from making adherence to a religion relevant in any way to a
person's standing in the political community.” Her fundamental
concern was whether the particular government action conveys “a
message to non-adherents 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 “endorsement test” has, on occasion, been subsumed into
the /Lemon/ test. The justices have simply incorporated it into the
first two prongs of /Lemon/ by asking if the challenged government
act has the purpose or effect of advancing or endorsing religion.
According to O'Connor the establishment clause requires the government
to remain NEUTRAL towards religion.
The Establishment Clause of the United States Constitution provides
that "Congress shall make no law respecting an establishment of
religion." U.S. Const. amend. I. This prohibition applies to the
states under the Fourteenth Amendment. /Everson v. Bd. of Educ./,
330 U.S. 1, 14-15 (1947). The Supreme Court has interpreted the
Establishment Clause to "mandate[] governmental neutrality between
religion and religion, and between religion and nonreligion."
/Epperson v. Arkansas/, 393 U.S. 97, 103-04 (1968). The
Establishment Clause therefore prohibits not only state actions that
advance religion, but also actions that are hostile toward religion.
/Lynch v. Donnelly/, 465 U.S. 668, 673 (1984).
B. The "purpose" prong of the Lemon test asks about the government's
motives: did the government intend to promote religion or did the policy
have a valid secular motive. When looking at purpose the courts
typically give deferrence to the stated secular purpose
/ Lemon/ said that government action must have “a secular …
purpose,” 403 U.S., at 612, and after a host of cases it is fair to
add that although a legislature’s stated reasons will generally get
deference, the secular purpose required has to be genuine, not a
sham, and not merely secondary to a religious objective. See,
/e.g.,/ /Santa Fe Independent School Dist./ v. /Doe, supra,/ at 308
(“When a governmental entity professes a secular purpose for an
arguably religious policy, the government’s characterization is, of
course, entitled to some deference. But it is nonetheless the duty
of the courts to ‘distinguis[h] a sham secular purpose from a
sincere one’ ”); /Edwards,/ 482 U.S., at 586—587 (“While the Court
is normally deferential to a State’s articulation of a secular
purpose, it is required that the statement of such purpose be
sincere and not a sham”); /id.,/ at 590, 594 (referring to enquiry
as one into “preeminent” or “primary” purpose); /Stone, supra/, at
41 (looking to the “pre-eminent purpose” of government action)
McCREARY COUNTY, KENTUCKY, et al., PETITIONERS v. AMERICAN CIVIL LIBERTIES
UNION OF KENTUCKY et al.
And it would be just as much a mistake to infer that a timid
standard underlies the statement in /Lynch/ v. /Donnelly/ that the
purpose enquiry looks to whether government “activity was motivated
wholly by religious considerations,” 465 U.S., at 680; for two cases
cited for that proposition had examined and rejected claims of
secular purposes that turned out to be implausible or inadequate:
/Stone,/ 449 U.S., at 41; /Abington,/ 374 U.S., at 223—224.
As we said, the Court often does accept governmental statements of
purpose, in keeping with the respect owed in the first instance to
such official claims. But in those unusual cases where the claim was
an apparent sham, or the secular purpose secondary, the unsurprising
results have been findings of no adequate secular object, as against
a predominantly religious one that the purpose enquiry looks to
whether government “activity was motivated wholly by religious
considerations,” Ibid
11 Moreover, Justice O’Connor provided the fifth vote for the /Lynch/
majority and her concurrence emphasized the point made implicitly in the
majority opinion that a secular purpose must be serious to be
sufficient. 465 U.S., at 691 (The purpose inquiry “is not satisfied … by
the mere existence of some secular purpose, however dominated by
religious purposes”).
12 /Stone/ found the sacred character of the Ten Commandments preeminent
despite an avowed secular purpose to show their “adoption as the
fundamental legal code of Western Civilization and the Common Law … .”
449 U.S., at 39—40, n. 1 (internal quotation marks omitted). And the
/Abington/ Court was unconvinced that music education or the teaching of
literature were actual secular objects behind laws requiring public
school teachers to lead recitations from the Lord’s Prayer and readings
from the Bible. 374 U.S., at 273.
David Opderbeck wrote:
> I would say that the result under the establishment clause would be
> the same. If the motivation is to advance a particular religious
> viewpoint, there is an establishment clause problem, regardless of
> where in the curriculum the class falls. You can offer courses
> designed to study various religions or compare religious viewpoints,
> but there has to be a secular purpose of understanding and comparing
> different religious histories, cultures and viewpoints, not a
> religious purpose of promoting one particular religious viewpoint.
>
> On 1/10/06, *drsyme@cablespeed.com <mailto:drsyme@cablespeed.com>*
> <drsyme@cablespeed.com <mailto:drsyme@cablespeed.com>> wrote:
>
> What if the Dover school board had wanted to get ID into
> the public schools, by proposing that ID be taught in
> philosophy classes instead of science classes? Assuming
> the motivations otherwise were the same, would ID in
> philosophy classes violate the establishment clause?
>
> If so, then a determination that the actions of the school
> board violated the establishment clause should be
> sufficient, if not then the question of whether or not ID
> is science or not seems relevant.
>
Received on Tue Jan 10 14:10:48 2006
This archive was generated by hypermail 2.1.8 : Tue Jan 10 2006 - 14:10:48 EST