Law journal article focuses on evolution disclaimers
The article begins,
This article deals with the controversy surrounding the teaching of evolutionary theory in public schools with a specific focus on disclaimers read by teachers before they teach evolution.
The article should have said that some evolution disclaimers -- e.g., the disclaimer in Selman v. Cobb County -- are written rather than oral.
The article says (page 1),
. . . this article suggests that striking down the disclaimers without providing alternative responses to the legitimate free exercise concerns involved may violate the Free Exercise Clause. As a way of negotiating free exercise and establishment concerns, this article proposes a generalized single out evolutionary theory for special treatment, but rather addresses scientific inquiry as a whole.
Unfortunately, this article, like so many other articles about criticism of evolution in the public schools, sees this criticism as just a religious issue. Many critics of evolution are not motivated by religion.
The article's labeling of disclaimer statements as "fruits" from a "poisonous tree" shows where the author is coming from.
The following statement in the article is so erroneous that it is virtually a faux pas:
Although the Fifth Circuit has struck down a disclaimer mentioning only the Biblical version of creation as an alternative to the evolutionary theory of origins on establishment grounds, no court has ever held that facially neutral disclaimers (i.e., disclaimers that have no reference to any religious theory) are problematic on the basis of the Establishment Clause.
The Selman v. Cobb County decision, though it is now defunct because it was settled out of court after being vacated and remanded, made such a holding that a facially neutral disclaimer violated the Establishment Clause. The article's above statement is especially surprising because the article later cites (page 7) the disclaimer statement at issue in Selman: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."
Other than court decisions striking down "silent prayer" (also called "moment of silence"), Selman may be the only example of an American court using the Establishment Clause to strike down something that does not contain anything of an explicit religious nature. The disclaimer statement that was struck down in Kitzmiller was arguably religious because it mentioned intelligent design, a term which suggests the existence of a supernatural designer.
The preceding quotation from the article is based on a source dated 2000 -- a little out of date. Selman was decided in 2005.
The article discusses the Alabama evolution disclaimer stickers, which I presume are almost unknown outside of Alabama. The article says of these stickers,
It is important to note that this disclaimer, like many others, describes evolution as a theory about the "origin of living things." To describe it as such reflects a fundamental misunderstanding built into the disclaimer specifically and the evolution/creationism battle generally, because evolutionary theory is neither a theory of creation nor a theory about the origins of life.
That's ridiculous. The same charge can be made that a "fundamental misunderstanding is built into" the title of Darwin's book "The Origin of Species." Everyone knows the difference between evolution and the origin of life -- no one is trying to create a "fundamental misunderstanding."
The article also says about the Alabama stickers (page 5),
Aside from its scientific problems, this disclaimer, which is also included in course guidelines for science teachers, has also not yet been challenged on establishment grounds. Considering that Alabama is predominantly Christian, the disclaimer's language is relatively weak, and the residents may be weary of controversy, it is likely this new disclaimer will remain unchallenged.
That is also ridiculous. It takes just one ACLU "mascot" to challenge a "monkey law." In legal jargon, a "mascot" is a front man for the real plaintiff, in this case the ACLU -- the ACLU (or Americans United for Separation of Church and State) is the boss and calls all the shots. Funding for lawsuits can come from outside the area. I am really surprised that this Alabama disclaimer sticker has not been challenged in court.
The article discusses the Freiler v. Tangipahoa Parish evolution disclaimer case, which is poorly known in comparison to the Kitzmller and Selman cases. To me, one of the most important things about the Freiler decision is how close it came to being overturned -- the case came within one vote of being granted an en banc (full court) appeals court rehearing and within one vote of being granted certiorari by the Supreme Court (normally four votes are required for a grant of certiorari). The dissenting judges and justices in both the appeals court and the Supreme Court submitted long dissenting opinions (I don't know about the frequency of dissenting opinions in denials of en banc rehearings in appeals courts, but I do know that the Supreme Court normally makes no comment when denying certiorari). IMO it would have been helpful if the article had cited these dissenting opinions and noted how close the decision came to being reversed.
Starting on page 10, the article goes into long discussions of: (1) different judicial tests used for deciding establishment clause cases: the Lemon test, the endorsement test, the coercion test, and the neutrality test; and (2) the conflict between the establishment clause and the free exercise clause (this conflict is also discussed here and here). IMO many of these discussions are very complex and probably overgeneralized. I just want to say a few words here about the article's comments about my favorite establishment clause test, the endorsement test. The article says (pages 13-14),
Importantly, this last prong [i.e., the 3rd or "excessive entanglement" prong of the Lemon test] was eliminated in the subsequent development of a new establishment test, the endorsement test. As it was articulated in County of Allegeny v. American Civil Liberties Union, the endorsement test is composed of the "primary effect" and "secular legislative purpose" prongs of the Lemon test. The endorsement test precludes the government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. As the test is essentially a disjunction of two Lemon prongs, any statute that violates either of those prongs also violates the endorsement test.
The article, quoting a source, also says in footnote #79 on page 13,
"The endorsement test originated from Justice O'Connor's concurring opinion in Lynch v. Donnelly, 465 US 668 (1984). Justice O'Connor extrapolated the 'purpose and effect' prongs of the Lemon test and redefined them."
On the contrary, Justice O'Connor's concurring opinion in Lynch shows no intention of trying to combine the Lemon test's first and second prong or trying to eliminate the third (excessive entanglement) prong. The endorsement test is often considered to be a separate test. The third prong has been disappearing as a separate test because of a reason having nothing to do with the endorsement test -- the Selman opinion says, "Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them . . . In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single 'effect' inquiry." (citations omitted)
What I like about the endorsement test is its concept of whether a particular government action makes people feel like political "insiders" or "outsiders." This endorsement test and its political insider/outsider concept are discussed in this post on my blog.
The article describes the attitude that supporters of evolution disclaimers usually desire more than what the courts would be willing to allow and therefore should be punished for their greed by getting nothing -- this is also sometimes described as a "you can't have it because you want it" attitude:
Parents who support disclaimers usually see them as part of a larger effort to teach religious origins theories. For example, the Selman court pointed out the "[e]vidence in the record suggests that the idea of placing the sticker in the textbooks originated with parents who opposed presentation of only evolution in science classrooms and sought to have other theories, including creation theories, included in the curriculum." (page 23)
The article also discusses the charge that evolution disclaimers "single out" evolution theory for criticism. However, there is not much else to criticize in K-12 science classes because just about the only other theory that is typically taught in K-12 science classes is atomic theory -- most of the rest of the typical science curriculum consists of scientific facts and laws. And atomic theory is far more plausible that the notion that evolution was driven mainly by natural mutations and natural selection.
The article is full of vague, confusing, nitpicking and hairsplitting pettifoggery, e.g., the following statement from page 39:
The differentiating element between government measures falling under the "untainted fruits" category and those falling under other sorts of categories would be a definition of "secular purpose" that is more attuned to the unique free exercise elements of measures that are "fruits of the poisonous tree."
The article's proposal of a generalized non-religious disclaimer for all scientific theories is not going to work so long as the courts hold that a disclaimer's origins are sufficient grounds to declare the disclaimer to be in violation of the establishment clause.
IMO it is noteworthy that all three rulings against disclaimers -- Kitzmiller, Selman, and Freiler -- banned the disclaimers outright rather than prescribe modifications that would have made them constitutional in the view of the court. For example, disclaimers that say that evolution is just a "theory" could include a scientific definition of the word in order to avoid a possible interpretation that evolution is just a wild hunch. Also, I would like to see an evolution disclaimer that includes the following statement: "This disclaimer does not violate the Constitution's establishment clause, because (1) this disclaimer contains nothing of a religious nature and (2) not all criticism of evolution theory is motivated by religion." LOL. However, the courts would probably rule that such a statement protests too much.
Regarding that term "note" for a law journal article written by a law student -- the law profession uses terms in very strange ways. For example, when Dover defendant William Buckingham was called a "hostile witness," I pictured him testifying while wearing a strait-jacket or an electric stun belt. All the term meant was that the other side got to question him first.
Labels: Expert opinions about Kitzmiller