Law review follies (part 4,242,535) [Updated]

The Spring 2004 issue of the Louisiana Law Review contains an article about the evolution/creationism controversy: Arianne Ellerbe, We Didn’t Start The Fire: The Origins Science Battle Rages on More Than 75 Years After Scopes, 64 La. L. Rev. 589 (2004). (Sorry, it’s not on line.) Ellerbe, a summa cum laude graduate of LSU, has received awards for her youth-ministry work, and helps run Refined By Fire Ministries. Her article, however, demonstrates significant misunderstandings of the legal issues surrounding the religion clauses of the First Amendment in general, and evolution education specifically.

Small flaws at the beginning of her article hint at the massive errors to follow: she says that “[t]he Scopes trial serves as a central event for the fundamentalist-modernist controversy, pitting the American Civil Liberties Union against Christian church leaders and scholars.” Id. at 589. If Ellerbe is referring to Scopes as a historical matter, this is probably true, but her phrasing suggests that today’s evolution controversy is one raging between the ACLU and “Christian church leaders and scholars,” which ignores the complicated landscape of opinion on the subject, and the fact that many Christian church leaders and scholars have no qualms with evolution.

She claims that “[r]ecent legal battles” over the separation of church and state “include Newdow v. United States Congress. . .which involves whether the speaking of the phrase ‘under God’ in the Pledge of Allegiance in public schools serves to violate the Establishment Clause of the First Amendment.” Id. at 589. But this is a mischaracterization of the question in Newdow. Among the questions in that case was whether Congress’ addition of the phrase “under God” to the Pledge in the 1950s violates the Establishment Clause (which states “Congress shall make no law respecting an establishment of religion. . .”) Nobody–not Dr. Newdow, not the defendants, not the amici–ever argued that “speaking. . .the phrase ‘under God’” is a violation of the law. Any person in America is free to use that phrase at any time, in any classroom or any other place in this country, regardless of the decisions in the Newdow case.*

Then Ellerbe says that there is “a continuous battle over the ‘separation of church and state,’ a concept Thomas Jefferson first articulated in his letter on the First Amendment. . ..” Id. at 589. In fact, while Jefferson’s letter to the Danbury Baptists is the most famous source for this quotation, the concept of separation of church and state is much older, and dates back at least to the seventeenth century, when the great Christian libertarian John Milton used a similar phrase in his Second Defence of the English People.</i> See also Bernard Bailyn, The Ideological Origins of The American Revolution 246-272 (Cambridge: Harvard University Press 1976) (1967) (detailing long history and wide popularity of disestablishmentarianism in American colonies). This problem will crop up again later in the article.

That all of these errors occur on the first page of Ellerbe’s article bodes ill for the rest. Her main thesis is that “[t]he objectives of the American education system and Supreme Court jurisprudence leave the door open for the teaching of competing origins theories within the confines of the Constitution if certain criteria are met.” Id. at 590.

To prove this thesis, she seems willing to go to any lengths. In fact, she never does name the “criteria” specifically. Instead she begins by first citing several cases which have held that government schools may use the Bible or other religious items in a curriculum, so long as they are not being used to teach students that a religious view is true. Students may be taught, for instance, about the culture of the Middle East, and discussions of Islam may play a legitimate role in such lessons. Students may be taught about the history of music, and Handel’s Messiah can be part of an assignment. But government schools may not be used to teach children that a particular religion is the truth. Thus, Ellerbe concludes, “study of a concept related to religion would be deemed constitutionally acceptable in an appropriate subject matter context.” Id. at 597. Second, Ellerbe argues that the term “science” should be defined, not by reference to the scientific method or other epistemological considerations like falsifiability, but rather by “look[ing] to whether a theory is true or warranted by the evidence. . .. [S]cientific legitimacy is best tested using the weight and reliability of empirical research supporting the evidence for the theory.” Id. at 594. This definition “would accept as science a broad range of theories that are supported by extensive research and empirical evidence, including competing theories of origins science that are backed up by legitimate evidence.” Id.

Ellerbe concludes from these two premises that “[i]f one accepts [her] definition[ ] of science…discussion of alternative origins theories may be equally appropriate in a science classroom as well as in a philosophy course.” Id. at 597.

It’s hard to know what to say to this rather banal conclusion. It is of course true that a science teacher may teach students that, in the olden days, people thought that the earth was at the center of a universe whose gears were being wound by the angels. Nobody–not even the ACLU–argues that science teachers may not teach students that at one time people believed in creation stories. The law has never prohibited teachers from using religious material for secular purposes, such as teaching “the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education,” Epperson v. Arkansas,</i> 393 U.S. 97, 106 (1968). Nor has anyone ever suggested that the law forbids schools from teaching things that are “supported by extensive research and empirical evidence, including competing theories of origins science that are backed up by legitimate evidence.” Ellerbe, supra, at 594. In fact, government schools can (unfortunately) legally teach theories that are not supported by extensive research, or any evidence at all.

But Ellerbe is reaching for something more. She wants government schools to be free to teach an “alternative origins theory,” (meaning of course, a religious explanation for the origin of species) as being true. The Supreme Court, she notes, has never “held that schools are not justified in exposing students to multiple origins theories, yet [its] holdings appear to emphasize the importance of avoiding endorsement of any particular theory in teaching such alternatives.” Id. at 605. Appear to? In fact, the Court is quite explicit on this point. While a government teacher may tell a student any number of things–including false things, unfortunately–he may not tell a student that a particular religious claim is either true or false. Under the First Amendment, and repeated, crystal clear holdings by the Supreme Court, a teacher may tell the the student the history and context of a religious truth claim; he may tell the student how many people believe in it; he may tell the student that he personally believes it or thinks it’s poppycock. But he may not tell the student that a religious claim is true or false. Why? Because the government may not establish religion. “Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” Edwards v. Aguillard,</i> 482 U.S. 578, 584 (1987).

Ellerbe is wrong, therefore, when she claims that all “alternative origins theories” can be taught as true in government classrooms. Supra at 605. In fact, there is only one particular type of origin theory which may not be taught as true in a government classroom: that is, the religious type of origin theory.

It is at this point, when we are ready to hear Ellerbe’s explanation of why “Supreme Court jurisprudence…[allows] the teaching of [religious] origins theories [as being true] within the confines of the Constitution,” </b>id. at 590, that we discover that instead she wants to change those confines, through a direct attack on the separation of church and state: “[F]or courts to require that all state action avoid either promoting or inhibiting religion proves particularly problematic with respect to the origins science controversy,” she begins. Id. at 605.<blockquote>For instance, many of the teachings and activities in America’s public school system relate to various religious doctrines as much if not more than does origins science instruction. The concepts of truth telling as well as respect for others and their property, not to mention the celebration of various holidays, not only form the foundation of our country but also originate from religious ideals. To prohibit any teaching or activity in the public school system that might in any way move students toward religious beliefs would require schools to eliminate all character-based teachings and rules and to cease any activity that may shed a positive light on any faith. Such a requirement would certainly aid our schools in their present downward spiral of violence and apathy. Exposing students to multiple theories regarding the origin of life without requiring them to accept one in particular as universal truth does not endorse adherence to a religious faith at any greater level than does requiring that students tell the truth, punishing students who refuse to respect authority, or hosting a Christmas-themed musical.</blockquote>

Id. at 605-06.

There are any number of things to object to in this paragraph. For one thing, while some Establishment Clause cases have gone too far in my opinion, the fact is that nothing in the cases or in the Establishment Clause requires teachers to eliminate character-directed education. (In fact, as I have pointed out before, attempts to educate children on matters of character have often aroused the ire of Christian conservatives, who object to even attempting to teach children virtues on a non-sectarian basis!) Second, it is simply not true that “the concept of truth telling” and other virtues “originate from religious ideals.” I and many other atheists of a wide variety of philosophical affiliations, adhere to moral principles, including truth-telling. (Daniel Dennett even provides an evolutionary explanation for the origin of truth telling in Freedom Evolves (2003).)

But more to the point, this paragraph reveals that Ellerbe’s attempt to prove that “alternative,” “scientifically valid,” non-evolutionary “origins theories” can be taught in a classroom “as part of a secular program of education,” id. at 597, is in reality an argument in favor of direct religious instruction in government classrooms. Now, there are many problems with religious instruction in government classrooms–Thomas Jefferson, James Madison, and others who won the battle to separate religion from government explained many of these reasons in their great writings. Their opponents would have made precisely the same arguments–and did make precisely the same arguments. Abolish the state-run church, they said, and you would have chaos and the death of religion. The fact of the matter is, as Alexis de Tocqueville pointed out, that religion has flourished in the United States in large part thanks to the separation of church and state. A full defense of the separation of church and state is beyond my ability in a blog post; but perhaps we can refer to the United States Supreme Court, which said in 1878,<blockquote>Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. . .. In the preamble of [the Statute for Virginia for Religious Freedom] religious freedom is defined; and after a recital “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,” it is declared “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.” In these two sentences is found the true distinction between what properly belongs to the church and what to the State. . ..

[A]t the first session of the first Congress the [First] amendment. . .met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards. . .took occasion to say: “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,–I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. . ..” Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.</b></blockquote>

Reynolds v. United States, 98 U.S. (8 Otto) 145, 162-64 (1878). For Ellerbe, however, the separation of church and state is not a vital tradition of a free society, with a long and glorious history behind it. Rather, it’s been “read into the Establishment Clause” by the Supreme Court, id. at 611, so as to accommodate the fact that the “composition of American society has changed drastically in over 200 years.” Id. at 595. This drastic change “has led the courts to interpret the Establishment Clause through the lens of a diverse population and modernized world view.” Id. These twos sentences appear to be the full extent of Ellerbe’s familiarity with the tradition and justification of separating church and state.

Ellerbe’s characterization of the separation of church and state–like her knee-jerk characterization of the ACLU–betrays a prejudiced notion that you are either with us or against us, as well as an exaggerated assumption that those opposed to teaching religion in schools are seeking to squash “any activity that may shed a positive light on any faith” or to prohibit teaching something “that might in any way move students toward religious beliefs.” In fact, that is not the concern of defenders of evolution, or of defenders of the separation of church and state (which, I hasten to repeat, includes many religious folks). If a student reads a class assignment, and is moved by it to investigate a faith on his own, and ultimately decides to adopt that faith, that is entirely his own concern, and defenders of the separation of church and state have no objection to such a thing. The problem arises when the government taxes a Catholic to teach Protestantism, or teaches a student who is an atheist that God created the world.

There are many other flaws in the article, which I’ll pass over (except for one more; one that always irritates me more than it ought to: modern evolutionary science, she says, originated with “Charles Darwin, who published ‘Origin of the Species’ in 1859.” Id. at 591. No. The book is Origin of Species, not Origin of The Species. This error is typical of people who are not well versed in the science of evolution and assume that the book discusses human evolution. In fact, the book mentions human evolution only in its final sentence). I will just say that it is unfortunate that an obviously accomplished law student would write, and the Louisiana Law Review would publish, an article so riddled with mischaracterizations, baseless assumptions, and apparent ignorance of the fundamentals of this debate.

Ellerbe concludes on an unintentionally ironic note. “While theories posed as alternatives or complements to evolution are currently labeled rogue or superstitious,” she writes, “through classroom discussion and experimentation, they may either be proven sound or soundly defeated. Many highly-praised scientific discoveries began in the scientist’s imagination as an idea and only later became accepted after trial and error, observation, and extensive testing.” Id at 609. Quite so. If the ID creationists ever come forth with a testable hypothesis, or experiment, so that ID can either be proven sound or soundly defeated, maybe then it will have some respectability as an enterprise on an equal footing with real science. In the meantime, however, it remains an entirely religious endeavor, and as such it belongs in a church, or in a private classroom, but not in classrooms paid for by my tax dollars.

Update: As luck would have it, Judge Bauer of the Seventh Circuit issued a dissent today that puts the case for the separation of church and state rather eloquently:<blockquote>The admonition of the Constitution that creates the separation of church and state forbids any government entity from endorsing, or seeming to endorse, religion but does not at all prevent individual members who make up a government entity from practicing or loudly announcing their deep religious convictions. They can place displays on their private property, put religious symbols on the bumper stickers of their cars, wear religious symbols on their clothing, and even, by living up to the admonitions of the commandments in their personal and political lives show, by their example, their deep commitment to the religion of their choice. What they cannot do is, by word or action, spend public money endorsing or seeming to endorse on behalf of the government agency they represent, an endorsement of any religion…. [A]s I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, “Render unto Caesar the things that are Caesar’s and to God the things that are God’s.” Neither God nor religion requires an endorsement from Government–nor does the law permit it.</blockquote>

*–Full disclosure: the Pacific Legal Foundation, where I am employed, filed an amicus brief against Newdow in this case. My posts on Panda’s Thumb in no way represent the views of the staff, supporters, or clients of the Pacific Legal Foundation.