Secular purpose

[Vance R. Koven]

At 2:56 PM -0800 3/3/98, Eugene Volokh wrote:
>    Perhaps there is an Estab Cl argument to be made in favor of
>striking down a ban on teaching evolution.  I just don't think it can
>be a "no plausible secular purpose" argument or even a "can't be
>rationally supported by persons not motivated by a desire to read
>a religious text literally."

If the "no plausible" or "no rational" standards were replaced with an
"extremely implausible in real life as we know it" standard, then a judge
might have a measurable (historico-political) basis other than his/her own
prejudices on which to rely in applying Lemon. The problem, as others have
noted, in finding an "objective" standard is that the basic Est. Cl. text
is simultaneously objective (effects test) and subjective ("establishment"
is a conscious act, requiring a state of mind), if you read it as anything
more than making one sect official. As awkward and intellectually
unsatisfying as the Lemon test is, it at least recognizes that a religious
motivation in enacting legislation might result in religious-promotion
effects. What the Court was struggling with was the issue of how to spot
the motivation and how to predict the impact by application of common-law
pragmatism (a rapidly declining art in contemporary jurisprudence).

*Sigh* Where is Potter Stewart when you need him?


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