Findings on Hostility at Smithsonian Noted in NRO Article

[Rick Duncan]

Ed: The Court held that the purpose of the legislature was to bring religion into the classroom.It was the legislature's bad purpose that was the problem. If the Court had found that the legislature had a secular purpose, the Act would not have been vulnerable to a facial attack. The Court did not examine the teachings of "creation science" and hold that this was religion not science. It just did not happen in Edwards. 
 
Once you have a particular curriculum that is adopted, and assuming there is a secular purpose of "teaching the controversy," the issue would be whether the particular curriculum has the effect of advancing or endorsing religion. This would require the Court to look at the particular curriculum and determine--not whether it is good or bad science--but whether it is religion. If ID consisted of teaching Genesis Chapter one as science, that would be an endorsement of religion. But if ID consists of examining scientific data and issues like irreducible complexity, that is science, perhaps bad science but science not religion.
 
The issue before the Court would not be whether it is good or bad science. Rather, it would be whether the curriculum was an endorsement of religion. For example, if a public school in Wisconsin decided to teach in science class that the moon was made of green cheese in order to promote dairy products (a secular purpose), it would not violate the EC. It would be a secular curriculum with a secular purpose. The fact that the curriculum is nonsense (very bad science) would not be a problem under the EC. 
 
 
Cheers, Rick Duncan

Ed Brayton <stcynic at crystalauto.com> wrote:
Rick Duncan wrote: Well, Ed, I think you are just misreading the decision. The case was decided based solely on the legislature's non-secular purpose. The Court did not hold that any particular book or curriculum was religion and not science. Indeed, no book or creation science curriculum was even part of the record in the case, which was a facial attack on a statute not a particular creation science program.
If I'm misreading it, then please explain what the portion I highlighted might mean. It said:

Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment.

I read this to mean that because "creation science" embodies a particular religious tenet, it is unconstitutional to teach it in public schools, which is what the Act required if evolution was to be taught. I don't see what else it could possibly mean. There may not have been a specific book or curriculum mandated, but it did require that teaching guides for creation science be developed so teachers could teach it, as the holding that I cited notes. Indeed, I would say that your argument only strengthens my position because they didn't say that a specific book or curriculum was unconstitutional, but that the mere act of requiring creation science to be taught was unconstitutional because it "embodies a particular religious tenet". They didn't go into much detail on that, but it's still stated quite clearly. And since that time, the courts have consistently applied the Edwards decision in striking down laws requiring or even allowing the teaching of creation science, without !
 the court
 taking a case to correct them. 


 This is why it seems clear that a school board that required Behe's book to be taught in science class as part of the discussion of evolution would not violate the EC--provided they were careful to clearly articulate a secular purpose. Teaching the controversy (i.e. exposing students to the ID theory) is a secular purpose and Behe's book is not religion (and Behe is a scientist, not a theologian). Whether ID is good or bad science education is not an issue the Court can (or should) decide. It is an issue for school boards and/or state legislatures to decide.
I don't think that supports your argument about Edwards at all. But if it can be shown in court that books that advocate "intelligent design" are really just advocating old-fashioned creationism under a new name, then the application of precedent would seem pretty clear. And as I stated earlier, the evidence for equating "intelligent design" and creation science is quite strong. I've seen the depositions of the experts in the Pennsylvania case, including Behe, and the evidence that the plaintiffs are going to use and the case is very powerful and well supported. The claim that "exposing students to the ID theory" is also a question that can be answered in court and will certainly be a large part of the Pennsylvania trial. Behe, among others, will certainly be asked on the stand to state what the "ID theory" says. The trouble is, as I keep saying, they don't have a theory (and Paul Nelson, one of the leading IDers, admits that). They only have a set of criticisms of evolution,
 criticisms that are taken directly from the wellspring of creation science and dressed up in scientific language. And "I don't believe theory X" does not constitute "theory Y". They will also be asked to point to any actual scientific research has been done that supports ID, to some evidence that ID actually is a scientific theory that can be tested or even has a coherent model from which one might derive ways to test it. And they will fail to provide any because there isn't any. 

Ed Brayton
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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner
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