Secular purpose

[Alan Gunn]

In message Tue, 3 Mar 1998 12:29:32 PST,
  Eugene Volokh <VOLOKH at law.ucla.edu>  writes:

> I'm afraid Mark's proposal troubles me even more than Andy's.  A
> focus on *who* has traditionally supported some practice and *where*
> support from it comes from now strikes me as deeply problematic -- an
> invitation to unconstitutional discrimination.  Taken one way, it
> might license people to condemn any proposals simply because it's
> supported by one particular religious sect, or because it's supported
> by religious people generally.  I know of no authority for this sort
> of religion-based political disability.  That a law is supported by
> people from a single religious tradition cannot make it
> unconstitutional, nor would I even say that this should be considered
> evidence of its unconstitutionality.
>
> Even if you narrow the proposal as much as possible to the
> particular example to which Mark is speaking here -- a law based on
> purported scientific claims, and a focus on the *profession* of the
> supporters rather than their religion -- the result still seems to me
> quite troubling.  I see no warrant for constitutionally preferring
> scientific claims supported by lawprofs over those supported by
> scientists; while as a layperson I will certainly look at the
> proponents' academic credentials, I think the Constitution does not
> so privilege one profession over another.  And I certainly see no
> warrant for constitutionally preferring scientific claims made by
> members of many religious groups over scientific claims made by
> members of one religious group; this I think the Constitution
> actually forbids.
>
> Finally -- and this is a separate argument from the ones I make
> above -- let me ask Mark this:  Say we see that a scientific claim
> comes not from "scientists from diverse religious traditions," but
> rather from scientists who are overwhelmingly from one tradition
> related to religion -- the tradition of atheism or agnosticism.  (I
> am not saying that evolutionary theory today is supported by only
> that tradition, but I am sure that there have been scientific
> theories in the past, and will be in the future, that have indeed
> been so limited in appeal.)  Would it be unconstitutional for the
> government to act based on this scientific claim?

   Eugene's reasoning here seems to me to be clearly right, yet to lead to
an outrageously wrong result: a religious group with enough votes can
require the public schools to teach as scientific truth a proposition that
nobody who doesn't share their beliefs holds, provided only that they call
their beliefs "science" and cite a law professor, rather than Genesis, as
their authority on science. Perhaps it is necessary, in interpreting the
constitution, to close our eyes to what everybody knows. If so, though, it
seems to follow that constitutional law, like much of the tax law, must turn
on form.
   Is this a possible way out? Instead of saying that a law prohibiting the
teaching of evolution is unconstitutional because it is supported only by
(some) Christians, and opposed by all educated non-Christians, say that the
law is absurd on the (scientific) merits, and therefore must reflect
religious views. In other words, instead of looking at who supports the law,
and at who opposes it, look at whether it can rationally be supported
by persons not motivated by a desire to read a religious text literally.
There are many problems with this, including, perhaps, the general
scientific illiteracy of the judiciary. Still, it does seem to me to
reflect the real reasons why (1) scientists generally understand that
these laws are religiously inspired, and (2) the people who want these
laws are pushing so hard for them. As to the latter point: I'd guess
that a look at most high school science books would reveal several
passages that are no longer good science (I have a book published in
1945 that describes light as passing throuth "the ether," a notion that
Einstein squelched long before then). Yet parents do not rise up and
demand that these passages no longer be taught; when we spot them, we
point them out to our kids and go on with our lives. Only when a scientific
teaching seems to contradict Genesis do voters whose concern with science is
normally nil take an interest. Perhaps this argument is that a law must have
a *solid* secular justification (as opposed to just "a" secular
justification, which is always available).
  I wouldn't defend this argument energetically: I'm groping for something
that keeps us from accepting a plainly wrong conclusion.
  One further thought. Rick Duncan and others complain--justifiably--that
the public schools' virtual monopoly compels students to be taught as fact
something they see as undermining their religious beliefs. It does indeed.
Surely nobody would post messages to this group complaining that
the public schools teach things that are wrong, only on the ground that they
are wrong. (My son's private school taught him a lot of real nonsense about
economics: I figured this was the price one paid for an otherwise excellent
school, and I was delighted to see that he and some of his classmates
spotted the fundamental error on their own.) Is it not then just a bit
inconsistent for people who take that stance to push for different teachings
on "scientific" grounds, claiming that they aren't pushing a religious
position? (I don't mean Rick, whose position as I understand it is freedom
of choice in schooling; a wise solution.) It can't be right that "creation
science" is a religious position when one objects to its alternative but a
"scientific theory" when one is strong enough to get it enacted.
>
> Mark Graber writes:
>
>
>> I confess that with both religion and race we are not likely to
>>   determine purpose without reference to history.  Anyone who cannot
>>   think of a secular purpose for any piece of legislation does not have
>>   the intelligence to teach at a law school (or the sixth grade for
>>   that matter) (I can think of a lot of  secular justifications for
>>   a law requiring all Americans to become Christians).  So we look to
>>   history to see who has traditionally supported some practice then
>>   look to present practice to see where support comes from now.  If the
>>   leading supporter of some alleged scientific proposition is a law
>>   school professor, this is probably good but imperfect evidence that
>>   the proposition lacks scientific support.  The more scientists and
>>   the more scientists from diverse religious traditions support a
>>   claim, the more evidence the claim has scientific basis.  I think
>>   that is the best we can do.  It's messy, but so is most of life.
>>
>
>
> ---------------------------------------------------------------------
> Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
> 405 Hilgard Ave., L.A., CA 90095
>

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Alan Gunn
Notre Dame Law School