Intelligent Design Creationism and the Dover trial: The constitutional issues

Many people wrongly assume that you cannot mention religion and god in the public schools. They speak of “god being driven out of the schools.” This is not correct. After all god and religion are necessary in order to understand much of US and world history and government and literature, to mention a few subjects. But the constitutional questions about what kinds of mention of god and religion are allowed and what are not are a little tricky and I want to briefly discuss them here. (The usual disclaimer: I am not even a lawyer, let alone an expert on constitutional law, so what follows is a lay person’s understanding of the issues.)

The relevant part of the US constitution is the first amendment that goes as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The US constitution is admirably terse in its wording but this means that the US Supreme Court has to interpret its meaning, and over the years there have been some landmark decisions that have formed the basis for subsequent rulings.

The key portion of the first amendment as it pertains to the religion in schools issue is the so called ‘establishment clause’ that the amendment starts with, that says ” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The key interpretation of this clause was provided in 1947 by Justice Hugo Black in the case of Everson v. Board of Education (330 U.S. 1, 15-16 (1947) where he wrote:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or what ever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause … was intended to erect a wall of separation between church and State.” (my italics)

But how do you judge whether this Jeffersonian ‘wall of separation’ has been breached? This was further clarified in 1971 in the case Lemon v. Kurtzman (403 U.S. 602, 612-613 (1971)), the result of which has been the adoption of the ‘Lemon’ test to see if any government action has violated these sections of the first amendment. For legislation to pass the constitutional requirements of the establishment clause, the “Lemon’ test says the legislation must meet three criteria:

First, the statute must have a secular legislative purpose;

Second, its principal or primary effect must be one that neither advances nor inhibits religion;

Finally, the statute must not foster “an excessive government entanglement with religion.”

So the judge in the Dover, PA case will have to rule whether allowing IDC ideas to be advocated by the school board passes all three items in the Lemon test.

The Lemon test explains why it is permissible to bring in god and religion into history and literature courses, because if taught correctly, it can meet those criteria. But in the IDC case, the only “secular legislative purpose” that I can see seems to be to show students a specific alternative to natural selection. I do not find that convincing since it is by now apparent to everyone that the alternative selected by them is based on a specific religious belief and that they see undermining natural selection as a necessary step towards adoption of their religious belief.

Furthermore, if the judge determines that IDC is a religious belief, then it would be hard to pass the third test.

In an previous posting, I discussed the legal history of the “religion in schools” issue, and especially the important role that the 1987 Louisiana case played in determining the current IDC strategy. In its 1987 decision against the teaching of creation science in Louisiana, the Supreme Court ruled 7-2 that it did so because the legislation “lacks a clear secular purpose” and went on to add that “The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term “creation science,” as contemplated by the state legislature, embraces this religious teaching.” The decision said that the creation science legislation failed all three Lemon tests. This is why the IDC people are trying to avoid at all costs being tarred with “creationist” label. It is the kiss of death.

It is hard to see how the judge in the Dover case can avoid coming to a similar conclusion with IDC, despite the strenuous efforts of IDC strategists to hide its creation science roots.

For these reasons, I expect the judge to rule against the (former) Dover school board. But as I said, I am not an expert on constitutional law, so don’t bet the farm on this prediction.

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