"We know better"

[Eugene Volokh]

    It seems to me that, if one confronts the Court's decisions about
creationism, the Court is saying the following to supporters of the
laws that were struck down (my characterization of the Court's
statements is intentionally provocative, but I hope ultimately fair):

    1.  We know what's good science and what's bad science.
Our evolution is good science, your creation science is bad science.

    2.  We also know what you're really after.  Though you might posit
some plausible secular purposes for your laws, we know your culture
and social reality and understand that your purposes are in fact
illegitimate.

    3.  The Constitution, as we interpret it, prevents your side from
teaching those views about a particular question (the origins of man)
that comport with your side's most deeply held beliefs.  It also
authorizes the other side (in a way that you are forbidden from
counteracting through state-wide law) to teach their views, which
portray as false your side's most deeply held beliefs.  It even
prevents you from requiring that both sides be taught.

    4.  If your government employees decide they want to teach
evolution, you as their employers cannot stop them from doing this.
If your government employees decide they want to teach creation
science, we as the Court will (probably) stop them from doing this.

    5.  It is unconstitutional for the government to convey
endorsement or disapproval of religion (or so says O'Connor).  We do
not however see, in our actions described in #1-#4, any disapproval of
religion.

    Now as you can tell, I'm pretty outraged by this reasoning, and
I'm not the least bit sympathetic to creationism on the merits, nor
am I in any way affiliated with the religious groups that are being
restrained this way.  I'd guess that many of those who *do* belong to
these religious groups are even more outraged.

    Now maybe the Constitution demands such behavior from the Court,
even when some group is likely to see the behavior as outrageous.
There's no "No Outrage Clause" in the Constitution.

    But it seems to me that the Court should be hesitant to institute
a constitutional test that demands the reasoning like the one that I
outline above.  And, especially when the Court has often said that
a key purpose of the Estab Cl is preventing political divisiveness
among religious lines, it seems to me that it should act whether the
above reasoning might actually foster such divisiveness.


    [Note:  David Cruz has pointed out, off-list, that my
previous message somewhat confounded the facts of Epperson and
Aguillard.  I said, in talking about Aguillard, "But I can also
easily imagine many others believing that the beleaguered public
schools would do best to stay out of this thicket[.]"  I should have
said:  "But I can also easily imagine many others believing (rightly
or wrongly) that public schools would be more academically honest if
they confronted both theories, or that regardless of the merits of
creation science, the beleaguered public education system had to take
steps to dispel the public perception of its one-sidedness."]

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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095