Second-class citizenship for those with deeply religious moral systems

[MARK STEIN]

Yes, a secular purpose to aid religion can offend the Establishment Clause, and a religious purpose to do something other than aid religion can survive the Establishment clause, but I still think Howard's position is recognizable in a small class of Establishment cases. 

Mark

"Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:  Is that really right?  I realize that Edwards v. Aguillard and
Epperson v. Arkansas seems to suggest this, but I'm quite puzzled how
this could be so.  For instance, say that the legislature wanted to ban
the teaching of evolution for the following reasons:

(1) Teaching evolution causes tension with many of our students and
their parents, which leads to parents' (a) pulling their children out of
public schools, (b) telling their children to reject various things
their teachers are teaching, thus undermining the teachers' general
authority and credibility, (c) being less likely to spend time
volunteering at the school, (d) being less likely to vote for school
bonds, and the like.

(2) Teaching evolution sends the message, rightly or wrongly, that
we're disapproving of many students' religious beliefs, and we'd like to
avoid that.

(3) Not teaching evolution better accommodates the sincerely held
religious beliefs of some parents who think it's wrong to expose their
children to this material.

(4) Teaching evolution sends students the message that they're just
like animals, which we think (rightly or wrongly) will lead them to
behave worse.

(5) Teaching evolution undermines the "Kantian dignity of man."

 None of these rationales -- including 1, 2, and 3 -- have to
rest on the legislators' having religious beliefs for their actions;
even atheist legislators can endorse such rationales.  Rationale 1
strikes me as especially plausible; my guess is that there are lots of
legislators who care much more about this sort of practical politics
than about promoting creationism or suppressing evolution as such.  Nor
did anything that the Court said in Edwards (speaking there of mandating
the teaching of intelligent design rather than of banning the teaching
of evolution, but the argument applies pretty much equally to both)
undermine the plausibility of rationale 1.  So either 1 through 3 are
different from 4 and 5, in which case the test isn't the legislators'
acting on their own religious beliefs; or they are all OK, in which case
either Epperson and Edwards are wrong, or the Court has a lot of
explaining to do about how it can sensibly distinguish the legislators'
beliefs in those cases from those in 1, 2, or 3.

 Eugene


Mark Stein writes:
 
 I think it's a little more complicated.  A law banning the
teaching of evolution is vulnerable to Establishment-Clause challenge
because it is religiously motivated.  But if the State could convince
the court that it had only a scientific  secular motivation in banning
the teaching of evolution, or wanted to protect the "Kantian dignity of
man," I assume the law would not be unconstitutional.  Since, as you
say, the Constitution bars the establishment of religion but not the
establishment of bad science or Kantianism, in this case it is true that
"legislators may not rest their arguments on their religious belief
systems, but may rest their arguments on their secular belief systems."
 

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