There is no constitutional separation of bogus science and state

There has been a lot of debate lately about whether something called "the separation of church and state" actually exists in the Constitution (to me the phrase is just a catch-all term that covers the establishment and free exercise clauses of the 1st Amendment). However, one thing is certain but is often ignored -- there is no constitutional separation of bogus science and state.

A Columbia Law Review article titled "Lawful Design: A New Standard for Evaluating Establishment Clause Challenges to School Science Curricula", which claims to propose a "comprehensive standard of review for Establishment Clause challenges to science curricula," considers only whether courts are competent to review the scientific merits of scientific concepts in public-school curricula and what standards the courts should use for such a review and generally ignores the equally important question of when the courts should make such a review. The article, written by Charles Kitcher, a law student at Columbia Law School, won the 2006 E. Allan Farnsworth Student Note Writing Competition. The abstract at the beginning of the article says:

The teaching about the origins of life in American public schools has long been bitterly contested, and consensus on what theories are sufficiently reliable to warrant inclusion in science curricula -- as well as their constitutionality under the establishment clause -- remains elusive. The intelligent design movement has renewed these disagreements, and recently in Dover, Pennsylvania, a district court found that a school board's requirement of a statement making reference to intelligent design emanated from an impermissible purpose, violating the Establishment Clause. More controversially, the court examined the substantive reliability of intelligent design , and, in finding it deficient, raised a number of questions: Are courts competent to perform this kind of investigation? And if so, what standards should they use? This Note seeks to answer these questions by proposing a comprehensive standard of review for Establishment Clause challenges to science curricula. Drawing upon the Supreme Court's jurisprudence on the Establishment Clause as well as on the nature of scientific reliability in expert testimony, this Note not only explains why courts are fit to undertake such review, but fashions a standard for doing so, called "honest purpose and substantial reliability." The new standard can guide courts in their assessment of purpose as well as their substantive scrutiny of proposed curricula, ensuring that what is taught as science is not just educationally proper, but constitutionally proper as well.

The abstract says that the Dover case raised two questions, whether courts are competent to examine the scientific merits and if so, what standards should be used, but does not mention the important question of when the court should examine the scientific merits. Though parts of the article may suggest answers to the question of when, the article should have a special section devoted to this very important question and does not.

The first point I want to make is that for a number of reasons, courts should try to avoid ruling on scientific questions:

(1) The courts have no general legal or constitutional authority to rule on scientific questions.

(2) Many scientific questions are unfathomable, unanswerable, and contentious.

(3) Science is subject to change.

(4) Judges generally have no particular competence in scientific areas.

(5) Judges generally get to hear only a tiny fraction of all the arguments on both sides of a scientific question.

(6) A court ruling that an idea is unscientific can make it much more difficult for that idea to gain acceptance in the scientific community.

(7) A court ruling that an idea is unscientific can hurt the careers of the advocates of the idea. The threat of such career damage discourages innovation in scientific ideas. The string theory of physics, for example, is considered to be highly unscientific -- see here and here.

(8) Rulings on scientific issues greatly increase the time and expense for both the litigants and the courts -- a good reason for not ruling on scientific issues when it is not necessary.

In summary, I believe that courts should rule on scientific questions only when absolutely necessary to decide the case. Product-liability cases are a good example of a kind of case where ruling on scientific questions is often necessary.

Here are some contra-indicators of a need to rule on the scientific merits of a school science subject that is challenged in an establishment clause lawsuit:

(1) The motives of the public officials involved are solely and blatantly religious

This was apparently the case in Dover. There is a disagreement over whether the motivations of public officials should be considered, but so long as these motivations are considered under the purpose prong of the Lemon test, those motivations should be dispositive of the case when they are solely and blatantly religious. The Columbia Law Review article did concede that the judge's decision to unnecessarily rule on whether ID is science in the Dover case is controversial. Some people have the mistaken idea that the courts are required to or should rule on every issue presented to them, but the courts often don't think that way. Courts regularly dismiss cases or issues on very narrow grounds. For example, the Supreme Court dismissed the Marco DeFunis reverse discrimination case because he was about to graduate from the law school that had denied him admission (he had been admitted to the school because of a lower-court ruling), and dismissed the lawsuit against "under god" in the Pledge of Allegiance because the plaintiff did not have legal custody of his biological daughter on whose behalf he brought the suit.

(2) The alleged scientific idea in question has no definite religious connotations

An example is the textbook sticker in the Selman v. Cobb County case. If it is established that the scientific idea in question has clear religious connotations, then it is necessary to determine if that idea has some scientific merit in order to establish whether there is a "legitimate secular purpose" that would justify an exception to the general rule that the government may not give the appearance of endorsing religion. However, if there are no religious connotations, then there is no need to establish such a secular purpose and so there is no need to determine whether or not the idea has some scientific merit. The Darwinists try to get around this by (1) defining all criticism of Darwinism as religious and (2) creating their own "contrived dualism" where there are only two alternatives: Darwinian evolution and what they call "intelligent design creationism." There is no constitutional separation of bogus science and state -- if an alleged scientific idea has no definite religious connotations, the courts have no authority to ban it from science classrooms regardless of how bogus it is as science.

(3) The idea is only mentioned in a disclaimer statement and is not actually taught. The idea can be blatantly religious and/or blatantly unscientific

An example is the evolution disclaimer statement that was at issue in the Freiler v. Tangipahoa Parish case. This statement actually mentioned "the Biblical version of Creation." Under the "political insider-outsider" principle of the judicial "endorsement test", an evolution disclaimer serves the purpose of reducing offense to the fundies so that they will feel less like political "outsiders." Indeed, in the Selman v. Cobb County textbook sticker case, the judge ruled, ". . . .by presenting evolution in a manner that is not unnecessarily hostile, the sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution" (the judge ruled against the stickers anyway). This "political insider-outsider" principle is discussed on pages 3-4 of attorney Edward Sisson's open letter on the Selman v. Cobb County textbook sticker case.

Also, the article does not really substantiate the abstract's claim that the "courts are fit to undertake" review of scientific merits. In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court described the courts' limitations in this area.

The establishment clause is a fortuitous, arbitrary and capricious means of banning ideas from public-school science classrooms. String theory is considered to be unscientific but gets a free pass because it does not have religious connotations. As I said, there is no constitutional separation of bogus science and state.