Beckwith's "burden": the First Amendment itself

Beckwith's analysis also fails to suggest why his views, which are uniquely offensive to my Christian beliefs, should enjoy government endorsement.

He starts from the assumption that he understands deity completely and all other understandings are in error. It is precisely against such hubris that the founders set up a government that wouldn't take sides in such squabbles.

The decision means that his sect may not lobby government against science, or against my faith. That's not a high price to pay, considering that my faith doesn't get to lobby government against his sect, either.

Beckwith's analysis is clouded because his goose is unhappy being in the same species with my gander. That's not a problem the law is capable of resolving.

This reasoning presents a Catch-22 that makes it nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs. For who but the citizens who take religious offense would be the most vocal critics of such policies and the most visible proponents of ways to mitigate them?

So it is not biological evolution per se that troubles these citizens (though it no doubt also bothers many of them). Rather, what troubles them is a materialist understanding of what counts as knowledge, a view that implicitly excludes their theological views from receiving serious respect in the institutions for which their tax dollars are confiscated and their children are required to attend if they do not bear the expense of private education.

Third, although "evolution is a theory, not a fact" has its genesis in the literature published by creationists...

This reasoning presents a Catch-22 that makes it nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs.

I can't help but be reminded of the old white supremacist argument that whites deserve to have a place of superiority over other races, and therefore any government policy that fails to actively promote white interests versus other interests is discriminatory and oppressive against whites. Evidently some people's Christianity is the new supremacist movement--if a government institution fails to actively promote a pro-Christian agenda, it is thereby oppressing and discriminating against Christianity. To make government policy "fair and balanced" by that standard is to implicitly establish Christianity as officially superior to all other beliefs, in direct violation of the First Amendment.

Let's look at a not-so-hypothetical situation outside of science for a moment. Assume that the so-called World Church of the Creator (Matthew Hale's neo-Nazi "church" that advocates preservation of the "white race" at the expense of everyone else) has several of its citizens write to a local school board, asking that the following sticker be placed in US History textbooks:

Racial equality is a theory, not a fact. You should consider all aspects of race relations with an open and skeptical mind.

My point is this: Science is the most obvious battleground for the church-in-school issue; but it's not the only one. Perhaps this is merely another example of the "wedge" phenomenon. I chose a particularly ridiculous example because one can point to individuals (and even "scientists") who provide some authority for the proposition in question. As much as the so-called Bell Curve has been discredited, it still exists as a book; so do all of those texts musing on the "Sons of Ham"; so, for that matter, does the WCC's own doctrine.

The problem is not a "pro-Christian" agenda in any general sense. It is the imposition of a particular dogma from within Christianity that actively excludes the beliefs and practices of many other Christians.

I'd actually agree with Beckwith that "nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs," but only due to the peculiar beliefs of those particular citizens. After all, though the content of the sticker was misleading at best, there's nothing more benignly religious they could have substituted. That was the most bland and vague language possible.

But yet, it is precisely because of the anti-evolution crowd's beliefs, biblical literalism, that they fail. Their beliefs simply don't jive with a secular State, and nothing will ever appease them. So, while Beckwith's statement above is true, it's also irrelevant to the law.

I guess for some, Caesar is still out to get them.

Religious citizens can lobby the government as much as they wish. What cannot happen is that the government cannot appease their religious views by adopting policies which endorse those views in the classroom.

Beckwith ... complains so often that "science is taught as exclusively materialistic and because it is presented as the paradigm of knowledge and rationality."

As folks have suggested, some people have bizaare beliefs and we can't really accomodate them in an educational setting. Consider some practical applications: Should the FDA endorse coffee enemas for curing cancer? (Perhaps they should only "make people aware" that these alternative cures are available, and that the standard procedures have gaps in their efficacy.) Should the government try to regulate adverse environmental impacts, or just not bother because the Rapture is coming any day now?

The Creationists/Religious Right types in this situation always cause me to remember the updated law from the end of Orwell's Animal Farm "ALL ANIMALS ARE EQUAL BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS", but inserting "religion" for animals.

Also from my observation RR types always accuse you of "promoting" something unless you are totally in agreement with them. i.e., just mentioning homosexuality with adding that "God will smite you and have you roast forever" unless you condemn it like them.

They want public schools to teach the children of their community that it is rationally permissible to entertain doubts that materialism is the whole story of the order and nature of things.

— Dr. Beckwith

But it can---indeed, it must---make decisions based on purely secular criteria. And it cannot make its policies based on religious beliefs. In other words, the one thing it cannot do is treat religious lobbying as the same as secular lobbying. Government may accede to secular lobbying. It may not accede to religious lobbying.* *-for religious reasons, of course. Government may certainly accede to religious lobbying for secular reasons, as when it allows conscientious objectors out of the draft. Such an exception, I think, proves the rule.

— Timothy Sandefur

The Lemon Test requires that all legislation have a secular purpose. Therefore the government must make decisions based upon a purely secular basis.

I'm not sure what Mike S.'s point is. It's true that government (as Washington is reputed to have said) is not reason, but force, and that if enough people convince their representatives to ignore the Constitution, that the representatives will do so---they do this all the time. But the theory of the American Constitution is that the Constitution itself represents the highest form of popular will---a different, more permanent popular will than the temporary and fleeting will of a particular legislature. So when the particular legislature violates the Constitution, it cannot be said to be acting in accord with the will of the people; rather, it is acting in accord with a temporary popular passion. "[T]he Constitution," writes Hamilton, "ought to be preferred to the statute, the intention of the people to the intention of their agents." In this case, the First Amendment limits the government to the conduct of secular affairs; it has no part in religious affairs. Thus, while it's true that a popular passion might drive the legislature to ignore that rule, doing so is unconstitutional, and is thus force, not law.

Aggie Nostic writes "[ i]n the warped mind of fundamentalists, public schools already promote a 'religion'---Secular Humanism. At least that used to be the 'argument' they made on behalf of 'equal time.'" That's right. I wrote about that argument in this post.

Great White Wonder says "[w]hat arrogance to boldly claim that widely recognized facts about life on earth are 'uniquely hostile' to one's creation mythos!" It is indeed arrogant to demand that the government make policy around one's "creation mythos." Nothing in the Constitution requires it to do so. Here, I think, Prof. Beckwith is committing the common fallacy of confusing the Constitution's prohibitions for requirements. The First Amendment only tells the government to leave people alone. That is all---to allow people the free exercise of their religion, and to avoid forcing religion on them by an establishment. The First Amendment does not require the government actually to do anything---only to leave people alone. The perspective of many religious conservatives is that their religious views require them to employ the government to accomplish certain objectives (i.e., preaching)---and that when the government fails to do so, it is violating their "right" to employ the government as part of a religious mission. Beckwith commits a similar fallacy by seeing the principle of neutrality (which is a slippery concept to begin with, as I've already stated)---by, I say, seeing the principle neutrality as positive claim on government to do something. By confusing negative and positive rights claims, Prof. Beckwith sees it as a threat to religious toleration when the government fails to give certain special privileges to the religious feelings of a particular faction. (I blogged about a similar argument here.) But as Justice Douglas said, "the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring).

"The Government" is just a way of representing the collective will of the citizens. If enough people convince their representatives to pass a particular law, then that "decision" will be made regardless of whether the motivations were secular or not.

— Mike S.

It would probably keep the issues clearer by saying that the legislature may pass whatever enactment it likes, but if these enactments violate the constitution (and thereby exceed the legislature's legitimate authority) these enactments are not laws, but merely enactments. It is for this reason that a legislative enactment which exceeds the legislature's power, and which then violates the rights of an individual, can be said to deprive that person of liberty without due process of law, because such an enactment is merely force, and not law. Is that clear? When government is perverted into a weapon for giving powerful parties their desires for no public reason but only for the private aggrandizement of the politically powerful, then what it is doing is not law, but merely force--just as when an individual robs somebody with a gun.

I explained this concept in greater depth in my post, "What Is Substantive Due Process, Really?"

For verily I say unto you, That whosoever shall say unto this mountain, Be thou removed, and be thou cast into the sea; and shall not doubt in his heart, but shall believe that those things which he saith shall come to pass; he shall have whatsoever he saith. Therefore I say unto you, What things soever ye desire, when ye pray, believe that ye receive them, and ye shall have them. (Mark 11:23-24)

I demand a sticker that says, "This textbook contains material on Newtonian physics. The First Law of Thermodynamics is a theory, not a fact, regarding the conservation of energy. This material should be approached with an open mind, studied carefully and critically considered."

Beckwith need not be alarmed. Regardless of whether "evilution" is supposed to be in the curriculum in public schools, apparently it is often not being taught, according to an article in this morning's NYTImes:

>Evolution Takes a Back Seat in U.S. Classes

(snip)

>Teaching guides and textbooks may meet the approval of biologists, but superintendents or principals discourage teachers from discussing it. Or teachers themselves avoid the topic, fearing protests from fundamentalists in their communities.

More at http://www.nytimes.com/2005/02/01/science/01evo.html

These "culture war" issues will likely lead to the end of public education in the US. People on your side of the culture war (and I'm on that side, too) should be prepared for it. In many areas, fundamentalists are getting their way. Not by getting creationism/ID taught along with evolution, and not by stickers, but by mau-mauing the public schools not to teach "evilution." And there isn't much that people on your side of the culture war can do about that.

So, Beckwith is clearly wrong when he says that decisions like the one in Cobb County leave fundamentalists out in the cold. And he misses the point that those decisions leave them (the fundamentalists) with no way to influence public policy regarding public education. They certainly have--influenced public policy, that is.

Although technically legislatures can pass whatever laws they like in the strictest sense, if those laws are unconstitutional when they were passed (i.e. without a primarily secular purpose), it's a short semantic walk to conclude that legislatures can not actually pass whatever laws they like.

— Kevin

Mike, your proposition that the establishment clause has "changed" is true only in the sense that the Court has reacted to new facets of society. If you're holding your breath for the Court to rub out the last 100 years of jurisprudence on establishment in public schools, I'd quit now.

The "understanding" establishment in the last 20th Century actually hasn't changed much, though the expression clause has quite a lot. After that first, early step of extending it to state governments, it was just a matter of refining the boundaries. Establishment issues in the public school arena have maintained a fairly consistent track, by my reckoning, but are fairly recent-- they don't appear until the early 20th century because mandatory public schooling is about that new. In any case, the current state of affairs is fairly set.

Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law. The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment.