Findings on Hostility at Smithsonian Noted in NRO Article

Mon Aug 22 10:10:34 PDT 2005

There is no secular purpose here.  ID is not science.  It is a cover for
the theology of a particular religious group.  To say that one should
teach religious objections of a particular religious group in science
class clearly violates the EC.  There can be no secular purpose behind
this selectivity.  The IDers are not asking that the views of those
religious that are comfortable with evolution be taught.  It *might* be
possible to construct a course on evolution and religion, or on science
and religion (although I think that it would be exceedingly difficult to
construct such a course for primary and elementary school students).
But that is not what the IDers are asking for.  They want special
privileges for their religion, and their religion alone.  Again, such
special privileges would clearly violate the EC.

They also want to drive American high school students away from the
natural sciences, and there is, alas, some evidence that they are
succeeding.  News accounts have reported that in some school districts,
peer pressure by overzealous religious students has caused other
students to opt out of science courses.  In a post-9/11 world, this is
nothing short of a disaster.  This doggedly persistent quest for special
privileges for a particular religion or religious point of view poses
great danger to our national security.  The "values" of the IDers will
not keep terrorists and others at bay, but science might. 

But, this is nothing new or revolutionary.  The country went through
this in the period 1930 - 1976 when science clearly trumped religion,
largely for national security reasons.  How quickly we forget, it seems.

-----Original Message-----
From: Rick Duncan [mailto:nebraskalawprof at yahoo.com] 
Sent: Sunday, August 21, 2005 12:22 AM
To: Law & Religion issues for Law Academics
Subject: Re: Findings on Hostility at Smithsonian Noted in NRO Article

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.

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. 

Cheers, Rick Duncan

Ed Brayton <stcynic at crystalauto.com> wrote:

	Rick Duncan wrote: 

	Edwards did not hold that "creation science" could not be taught
in the govt schools. Nor did it hold that "creation science" was
religion and not science. It held only that the particular law (the
"Balanced Treatment Act") was invalid because it did not have a secular
purpose. Even here, the Ct accomplished this only by misinterpreting the
stated secular purpose--academic freedom for students--and saying that
since the law did not advance academic freedom for teachers it was a
sham. Scalia's dissent demolished the majority's reasoning on this
point.

	I don't think this description squares with the decision
<http://www.talkorigins.org/faqs/edwards-v-aguillard.html>  itself. Here
is the actual holding:

	---------------------
	1. The Act is facially invalid as violative of the Establishment
Clause of the First Amendment, because it lacks a clear secular purpose.
Pp. 585-594.

	! (a) The Act does not further its stated secular purpose of
"protecting academic freedom." It does not enhance the freedom of
teachers to teach what they choose and fails to further the goal of
"teaching all of the evidence." Forbidding the teaching of evolution
when creation science is not also taught undermines the provision of a
comprehensive scientific education. Moreover, requiring the teaching of
creation science with evolution does not give schoolteachers a
flexibility that they did not already possess to supplant the present
science curriculum with the presentation of theories, besides evolution,
about the origin of life. Furthermore, the contention that the Act
furthers a "basic concept of fairness" by requiring the teaching of all
of the evidence on the subject is without merit. Indeed, the Act evinces
a discriminatory preference for the teaching of creation science and
against the teaching of evolution by requiring that curriculum guides be
developed and resource services! supplied for teaching creationism but
not for teaching evolution, by limiting membership on the resource
services panel to "creation scientists," and by forbidding school boards
to discriminate against anyone who "chooses to be a creation-scientist"
or to teach creation science, while failing to protect those who choose
to teach other theories or who refuse to teach creation science. A law
intended to maximize the comprehensiveness and effectiveness of science
instruction would encourage the teaching of all scientific theories
about human origins. Instead, this Act has the distinctly different
purpose of discrediting evolution by counterbalancing its teaching at
every turn with the teaching of creationism. Pp. 586-589.

	(b) The Act impermissibly endorses religion by advancing the
religious belief that a supernatural being created humankind. The
legislative history demonstrates that the term "creation science," as
contemplated by the state legislature, embraces this rel! igious
teaching. The Act's primary purpose was to change the public school
science curriculum to provide persuasive advantage to a particular
religious doctrine that rejects the factual basis of evolution in its
entirety. 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.
Pp. 589-594. 2. The District Court did not err in granting summary
judgment upon a finding that appellants had failed to raise a genuine
issue of material fact. Appellants relied on the "uncontroverted"
affidavits of scientists, theologians, and an education administrator
defining creation science as "origin through abrupt appearance in
complex form" and alleging that such a viewpoint constitutes a true
scientific theory. The District Court, in its discretion, properly
concluded that the postenactment testimony of these experts concerning
the possible technical meanings of the Act's terms would not illuminate
the contemporaneous purpose of the state legislature when it passed the
Act. None of the persons making the affidavits produced by appellants
participated in or contributed to the enactment of the law. Pp. 594-596.
	-------------------------

	The ruling did in fact hold that teaching creation science was a
violation of the first amendment, as the portion in italics shows. 

	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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