New lawsuit against U Cal Berkeley

[Newsom Michael]

I have just recently read excerpts from an article by Dworkin in which
he distinguishes between cultural developments that flow somehow from
the people (I think, if I understand his point, he has something in mind
like Blackstone's definition of custom), and cultural developments that
flow from majoritarian imposition.  Not surprisingly, he finds something
wrong with the latter instance.

It may be useful to think about the Berkeley website with the foregoing
in mind.  As I have said, in other contexts, the real issue is one of
persistence versus resistance.  Thus Dworkin's thinking resonates with
me.

There are those who persist in insisting that their view on matters like
evolution or same-sex marriage should control all of the rest of us.
There are those of us who would prefer to be left alone, to work through
these matters without the interference of the largely evangelical
Protestant Religious Right.

The Berkeley website is resisting, it seems to me, the persistence of
the Religious Right that we have to "balance" evolution with ID or
whatever it is that they are arguing for these days.  To argue that this
resistance is an endorsement of religion may have some superficial
appeal.  But on deeper reflection, the argument fails.  What Berkeley is
doing is defending a certain status quo ante, a set of understandings
that emerged in the 1930s and 1940s about religion and science.  Those
understandings came pretty close to becoming cultural norms, although
fundamentalist evangelicals opposed them all along.  This new set of
"almost" cultural norms arose because these evangelicals had largely
taken themselves out of the political process.

Now they are back in it, with a vengeance, and they want to undo those
understandings.  Because of the triumph, if that is the word, of liberal
religion in the 1930s and 1940s, given the absence or default of the
then religious right, the understandings became essentially political or
cultural, not entirely religious.  After all, what is one to make of
Epperson and Edwards?  Do they endorse the religions that the Berkeley
web site says find no inconsistency between religion and science?

To argue, now, because the Religious Right wants to, that these
understandings are no longer cultural or political and are only
religious is, I think, to miss the entire point of our history and
experience.

There is no need to rehearse here the long thread on ID.  But this much
is clear:  the groups pushing ID spend their time criticizing
evolution-science, but do no science of their own.  The fact is that
they can't, unless you believe (which I do not) that you can,
empirically, prove the existence of a Divine Creator.  The problem, as
the evidence shows, is that the attack is really on science itself.

Accordingly, I read the website merely as a defense of science.  If that
is tantamount to an endorsement of "religion" then so be it.  In truth
it is a defense of those understandings that I referred to.  It is a
serious mistake, in my view, to conflate or submerge culture, politics
and law into religion, without recognizing something of the difficulties
that that presents.  There is no viable endorsement objection, unless we
let the Religious Right define religion for all of the rest of us.


-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
Sent: Wednesday, October 19, 2005 12:43 PM
To: Law & Religion issues for Law Academics
Subject: RE: New lawsuit against U Cal Berkeley

	My apologies to Ed Brayton, whose earlier posts I regrettably
failed to properly grasp; I quite erroneously focused solely on the
NCSEWeb site, to which the Berkeley site links, and failed to focus --
as he correctly points out we should focus -- on the context.

	Nonetheless, it seems to me that even if we include the context,
there is still a viable (as I've said before, hardly open-and-shut, but
quite plausible) endorsement objection.	Here's the material from the
Berkeley site:



Misconception:
"Evolution and religion are incompatible."

Response:
Religion and science (evolution) are very different things. In science,
only natural causes are used to explain natural phenomena, while
religion deals with beliefs that are beyond the natural world.

The misconception that one always has to choose between science and
religion is incorrect. Of course, some religious beliefs explicitly
contradict science (e.g., the belief that the world and all life on it
was created in six literal days); however, most religious groups have no
conflict with the theory of evolution or other scientific findings. In
fact, many religious people, including theologians, feel that a deeper
understanding of nature actually enriches their faith. Moreover, in the
scientific community there are thousands of scientists who are devoutly
religious and also accept evolution.

For concise statements from many religious organizations regarding
evolution, see Voices for Evolution on the NCSE Web site [linking to the
site on which various groups opine on the proper interpretation of
Christianity and Judaism, and conclude that this proper interpretation
is consistent with evolution].



	It is indeed factually true that the view "that one always has
to choose between science and religion is incorrect" -- most claims that
include the word "always" are incorrect.  Nonetheless, it seems to me
that in context a reasonable person could quite properly read these
paragraphs as not just demographic reports on religious attitudes but as
endorsement of one particular interpretation of Christianity and
Judaism.  Note how the one provided example of a religious belief that
contradicts evolution is six-literal-day Creationism, an example that
I'm pretty sure most readers would see as a negative one.  Nothing is
said of what I understand to be the much larger groups who disagree with
evolution on religious grounds but don't believe the world was created
in six literal days.  The rest of the paragraphs is devoted to what I
suspect most reasonable readers would see as positive descriptions of
those religious groups that do see their religions as consistent with
evolution; and then there is a link that seems pretty clearly an
endorsement -- not just an objective "well, here's what some people say"
with no positive connotation -- of those religious beliefs.

	There can surely be objective discussions of religious views on
evolution, which aren't likely to be seen as an endorsement of some such
views, and aren't likely to be intended as an endorsement of some such
views.  But this doesn't seem to be it.

	Finally, imagine a Web page maintained by a government-run
institution, and aimed at supporting some curriculum that teaches
students to oppose euthanasia (a view that of course public schools are
constitutionally free to teach, though I'm not sure that many indeed to
teach it; this page says:

"Of course, some religious beliefs explicitly tolerate euthanasia (e.g.,
the belief that there's nothing wrong with killing); however, most
religious groups do not support euthanasia.  In fact, many religious
people, including theologians, feel that supporting a culture of life
actually enriches their faith.  Moreover, in the medical community there
are thousands of doctors who are devoutly religious and also reject
euthanasia.

For concise statements from many religious organizations regarding
euthanasia, see Voices for Life on the VFL Web site [linking to a site
on which various groups opine on the proper interpretation of
Christianity and Judaism, and conclude that this proper interpretation
rejects euthanasia]."

	Is this an endorsement of a particular set of religious beliefs
(beliefs that Christianity and Judaism, as rightly interpreted, reject
euthanasia), or just a non-endorsing objective summary of facts about
religious belief?

	Eugene
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