Dissent from denial of cert in latest evolution case

[Volokh, Eugene]

Any thoughts on the following?  I'm a pretty solid believer in evolution,
but Scalia's dissent strikes me as pretty persuasive (though I thought the
same of his dissent in Aguillard).



Tangipahoa Parish Board of Education v. Freiler (June 19, 2000)
http://supct.law.cornell.edu/supct/html/99-1625.ZD.html:



Justice Scalia, with whom The Chief Justice and Justice Thomas join,
dissenting from denial of certiorari.

I

On April 19, 1994, the Tangipahoa Parish, Louisi- ana, Board of Education
(Board) passed the following resolution:

"Whenever, in classes of elementary or high school, the scientific theory of
evolution is to be presented, whether from textbook, workbook, pamphlet,
other written material, or oral presentation the following statement shall
be quoted immediately before the unit of study begins as a disclaimer from
endorsement of such theory.

"It is hereby recognized by the Tangipahoa Parish Board of Education, that
the lesson to be presented, regarding the origin of life and matter, is
known as the Scientific Theory of Evolution and should be presented to
inform students of the scientific concept and not intended to influence or
dissuade the Biblical version of Creation or any other concept.

"It is further recognized by the Board of Education that it is the basic
right and privilege of each student to form his/her own opinion or maintain
beliefs taught by parents on this very important matter of the origin of
life and matter.  Students are urged to exercise critical thinking and
gather all information possible and closely examine each alternative toward
forming an opinion."  Pet.  for Cert.  2.

Approximately seven months after this resolution was adopted, respondents,
three parents of children attending the Tangipahoa Parish Public Schools,
brought suit in the United States District Court for the Eastern District of
Louisiana against petitioners, the Board, its members, and the
superintendent of the school district.  They brought a facial challenge to
the disclaimer contained in the last two paragraphs of the resolution,
claiming that it violated the coextensive Establishment Clauses of the
United States and Louisiana Constitutions.  The District Court ruled in
favor of respondents.  975 F.  Supp.  819 (1997).  It concluded that the
disclaimer lacked a secular purpose, and thus failed the first prong of the
three-prong test outlined in Lemon v. Kurtzman, 403 U.S. 602 (1971), because
the Board's articulated purpose -- that it adopted the disclaimer to promote
critical thinking by students on the subject of the origin of life -- was a
sham.  See 975 F.  Supp., at 829.  It therefore held the disclaimer
unconstitutional under both the Federal and the Louisiana Constitutions.
See id., at 830.

The Fifth Circuit affirmed.  185 F.3d 337 (1999).  It began by noting that,
in the context of public education, this Court has used three different
tests to evaluate state actions challenged on Establishment Clause grounds:
the three-prong test of Lemon; the "endorsement" test of County of Allegheny
v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573
(1989); and the "coercion" test of Lee v. Weisman, 505 U.S. 577 (1992).  See
185 F.3d, at 343.  Although noting that the Lemon test has been "widely
criticized and occasionally ignored," the court opted to apply it.  185
F.3d, at 344.  The court first concluded that the disclaimer had a secular
purpose and therefore survived the first prong of the Lemon test.  See 185
F.3d, at 344-346.  While agreeing with the District Court that the purpose
of promoting critical thinking by students on the subject of the origin of
life was a sham, the court concluded that the disclaimer served two other,
legitimate secular purposes: disclaiming any orthodoxy of belief that could
be inferred from the exclusive place of evolution in the curriculum, and
reducing offense to any student or parent caused by the teaching of
evolution.  See ibid.

The Fifth Circuit then turned to the second prong of the Lemon test -- the
so-called "effects" prong.  See 185 F.3d, at 346-348.  The court concluded
that the disclaimer failed this prong because "the primary effect of the
disclaimer is to protect and maintain a particular religious viewpoint,
namely belief in the Biblical version of creation."  Id., at 346.  It based
this conclusion on three factors: "(1) the juxtaposition of the disavowal of
endorsement of evolution with an urging that students contemplate
alternative theories of the origin of life; (2) the reminder that students
have the right to maintain beliefs taught by their parents regarding the
origin of life; and (3) the 'Biblical version of Creation' as the only
alternative theory explicitly referenced in the disclaimer."  Ibid.
(Finally, the court noted, albeit in passing and without elaboration, that,
because the disclaimer failed the second prong of the Lemon test, it would
also fail the endorsement test.  See 185 F.3d, at 348.)

Petitioners unsuccessfully moved for rehearing by the panel and by the en
banc Fifth Circuit.  201 F.3d 602 (2000).  Judge Barksdale, joined by six
other judges, dissented from the denial of rehearing en banc.  See id., at
603-608.

II

Like a majority of the Members of this Court, I have previously expressed my
disapproval of the Lemon test.  See Lamb's Chapel v. Center Moriches Union
Free School Dist., 508 U.S. 384, 398-400 (1993) (Scalia, J., joined by
Thomas, J., concurring in judgment); County of Allegheny, supra, at 655-657
(Kennedy, J., concurring in judgment in part and dissenting in part);
Corporation of Presiding Bishop of Church of Jesus Christ of
Latter&nbhyph;day Saints v. Amos, 483 U.S. 327, 346-349 (1987) (O'Connor,
J., concurring in judgment); Wallace v. Jaffree, 472 U.S. 38, 107-113 (1985)
(Rehnquist, J., dissenting).  I would grant certiorari in this case if only
to take the opportunity to inter the Lemon test once for all.

Even assuming, however, that the Fifth Circuit correctly chose to apply the
Lemon test, I believe the manner of its application so erroneous as
independently to merit the granting of certiorari, if not summary reversal.
Under the second prong of Lemon, the "principal or primary effect [of a
state action] must be one that neither advances nor inhibits religion."
Lemon, supra, at 612.  Far from advancing religion, the "principal or
primary effect" of the disclaimer at issue here is merely to advance freedom
of thought.  At the outset, it is worth noting that the theory of evolution
is the only theory actually taught in the Tangipahoa Parish schools.  As the
introductory paragraph of the resolution suggests, the disclaimer operates
merely as a (perhaps not too believable) "disclaimer from endorsement" of
that single theory, and not as an affirmative endorsement of any particular
religious theory as to the origin of life, or even of religious theories as
to the origin of life generally.  The only allusion to religion in the
entire disclaimer is a reference to the "Biblical version of Creation,"
mentioned as an illustrative example -- surely the most obvious example --
of a "concept" that the teaching of evolution was "not intended to influence
or dissuade."  The disclaimer does not refer again to the "Biblical version
of Creation," much less provide any elaboration as to what that theory
entails; instead, it merely reaffirms that "it is the basic right and
privilege of each student to form his/her own opinion or maintain beliefs
taught by parents on this very important matter of the origin of life and
matter," and neutrally encourages students "closely [to] examine each
alternative" before forming an opinion.

As even this cursory discussion of the disclaimer amply demonstrates, the
Fifth Circuit's conclusion that "[t]he disclaimer . . . encourages students
to read and meditate upon religion in general and the 'Biblical version of
Creation' in particular," 185 F.3d, at 346, lacks any support in the text of
the invalidated document.  In view of the fact that the disclaimer merely
reminds students of their right to form their own beliefs on the subject, or
to maintain beliefs taught by their parents -- not to mention the fact that
the theory of evolution is the only theory actually taught in the lesson
that follows the disclaimer -- there is "no realistic danger that the
community would think that the [School Board] was endorsing religion or any
particular creed, and any benefit to religion or to the Church would have
been no more than incidental."  Lamb's Chapel, supra, at 395.  At bottom,
the disclaimer constitutes nothing more than "simply a tolerable
acknowledgment of beliefs widely held among the people of this country,"
Marsh v. Chambers, 463 U.S. 783, 792 (1983).  See also Lynch v. Donnelly,
465 U.S. 668, 673 (1984) ("Nor does the Constitution require complete
separation of church and state; it affirmatively mandates accommodation, not
merely tolerance, of all religions, and forbids hostility toward any").

In denying the petition for rehearing, the Fifth Circuit panel took another
tack: "In denying rehearing, we emphasize that we do not decide that a
state-mandated statement violates the Constitution simply because it
disclaims any intent to communicate to students that the theory of evolution
is the only accepted explanation of the origin of life, informs students of
their right to follow their religious principles, and encourages students to
evaluate all explanations of life's origins, including those taught outside
the classroom.  We decide only that under the facts and circumstances of
this case, the statement of the Tangipahoa Parish School Board is not
sufficiently neutral to prevent it from violating the Establishment Clause."
201 F.3d, at 603.  Inasmuch as what the disclaimer contains is nothing more
than what this statement purports to allow, the explanation is incoherent.
Reference to unnamed "facts and circumstances of this case" is not a
substitute for judicial reasoning.  The only aspect of the disclaimer that
could conceivably be regarded as going beyond what the rehearing statement
purports to approve is the explicit mention -- as an example -- of "the
Biblical version of Creation."  To think that this reference to (and plainly
not endorsement of) a reality of religious literature -- and this use of an
example that is not a contrived one, but to the contrary the example most
likely to come into play -- somehow converts the otherwise innocuous
disclaimer into an establishment of religion is quite simply absurd.

In Epperson v. Arkansas, 393 U.S. 97 (1968), we invalidated a statute that
forbade the teaching of evolution in public schools; in Edwards v.
Aguillard, 482 U.S. 578 (1987), we invalidated a statute that required the
teaching of creationism whenever evolution was also taught; today we permit
a Court of Appeals to push the much beloved secular legend of the Monkey
Trial one step further.  We stand by in silence while a deeply divided Fifth
Circuit bars a school district from even suggesting to students that other
theories besides evolution -- including, but not limited to, the Biblical
theory of creation -- are worthy of their consideration.  I dissent.





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