Federal courts in Louisiana recently reached the conclusion that too much thinking about the difficult issues involved in evolution can be downright dangerous. The Tangipahoa Parish Board of Education required its teachers to read a statement before any classroom discussion dealing with evolution urging the students “to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion” regarding “the origin of life and matter.” Some parents filed suit alleging that this violated the First Amendment religion clause, a federal trial court agreed, and a three–judge panel of the Fifth Circuit Court of Appeals affirmed. The U.S. Supreme Court declined to review the case.
The school board had hoped its policy would pass First Amendment muster because it disclaimed any attempt to promote religion. Elsewhere, the Court has claimed that a disclaimer can go a very long way in allowing conduct in the public square that might otherwise be prohibited. For example, in Capitol Square Review Board v. Pinette (1995) the Ku Klux Klan wanted to erect a cross in a public square in Columbus. The authorities denied access to this forum on the grounds that allowing the Klan to use the public square in this way would implicate the government in the hatred and violence symbolically associated with the Klan’s cross–burnings. The Court held that the Klan’s display was expression fully protected under the Free Speech Clause, and Justice Antonin Scalia noted that a modest disclaimer from the authorities would suffice to clarify that the State was not endorsing the racist theory advocated by the Klan.
Yet because the underlying subject of the Tangipahoa case was evolution, the Court seemed to think, a disclaimer was not enough. In Epperson v. Arkansas (1968) the Supreme Court invalidated a statute that forbade the teaching of evolution in public schools. In Edwards v. Aguillard (1987) the Court struck down a Louisiana statute that required the teaching of creationism whenever evolution was also taught. Neither of these cases control the Tangipahoa case because the school district had neither forbidden the teaching of evolution nor required the teaching of creationism. The offending policy simply required teachers to inform students before discussions of evolution that teaching “the Scientific Theory of Evolution [is intended] to inform students of the scientific concept and not intended to influence or dissuade the biblical version of Creation or any other concept”; further, the statement said, “it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter.” Invoking Lemon v. Kurtzman (1971), the trial court invalidated the policy on the ground that it lacked a secular purpose. The announced purpose of the policy—to promote critical thinking by students on the subject of the origin of life—was a sham. The real reason, opined the court, was to promote religion.
Courts normally don’t treat legislation with such suspicion, just as people normally trust their friends to tell the truth. From time to time, though, judges do need to treat the actions of elected officials with skepticism, just as sometimes we have to confront our friend over his deceptive behavior. Skepticism is important sometimes, but this sort of constitutional power play is rarely employed even in those cases, such as nonestablishment cases, where the purpose of a policy is important to its constitutionality. In dozens of cases in which the Court has either sustained or invalidated programs of financial assistance to children attending religious schools, the Court has never ruled that any of these programs lacked a valid secular purpose. The only instances in which it has relied on the secular purpose requirement of Lemon to invalidate a school policy have been with regard to the posting of the Ten Commandments and the teaching of evolution in public schools.
The Fifth Circuit agreed with the trial court that the stated purpose of the disclaimer policy—promoting critical thinking—was a sham. But it ruled that the school board nonetheless passed muster under the secular purpose test of Lemon because the school board stated two other valid secular purposes for its policy: “disclaiming any orthodoxy of belief that could be inferred from the exclusive place of evolution in the curriculum, and reducing offense to any student or parent caused by the teaching of evolution.”
Under Epperson and Aguillard a finding of a valid secular purpose for a school policy would have ended the matter. It didn’t in this instance. The Fifth Circuit concluded that the disclaimer policy was still invalid because it failed to meet the second requirement of Lemon: that a policy not have the “primary and principal effect” of advancing religion. In the view of the court, “The primary effect of the disclaimer is to protect and maintain a particular religious viewpoint, namely belief in the biblical version of creation.” The court offered three reasons for this conclusion. None is persuasive.
First, the court noted that the school board’s disavowal of endorsement of evolution is juxtaposed with urging that students contemplate alternative theories of the origin of life. Well, yes, but open minds seeking alternative explanations is at the heart of scientific inquiry. Ironically, the court adopted a secular stereotype of religion, in which religion is associated exclusively with leaps of faith rather than with Anselm’s “faith seeking understanding.” The judges made their own leap here, asserting that promoting critical thinking about the origins of the universe must be equated with advancing religion.
Second, the court thought the disclaimer policy advanced religion by urging respect for “beliefs” taught by parents regarding the origin of life. To the court’s suspicious ears, the term “beliefs” sounded religious, but since everybody has beliefs of all different kinds, the word is actually neutral between religious and nonreligious convictions.
Third, the court invalidated the disclaimer because the “biblical version of Creation” was the only alternative theory that it explicitly mentioned. The court evidently deemed this phrase an impermissible privileging of the religious faith of biblical believers. The chief difficulty with this move is that it conveniently ignored the next four words in the disclaimer policy: “or any other concept.” It is one thing for courts to remind us that the government may not promote Christian tenets, as it did when it forbade the recitation of the Lord’s Prayer in public schools in the Schempp case (1963). But it seems a far stretch from Schempp to the present case, in which respect for any alternative opinions or beliefs on the origins of life is disallowed.
When an appellate panel rules, one of the parties can ask the full court to hear the case again. Seven judges in the Fifth Circuit voted to hear this case—one vote short of the margin needed for rehearing. In denying the petition for rehearing, the Fifth Circuit panel insisted it was ruling narrowly:
We emphasize that we do not decide that a state–mandated statement violates the Constitution simply because it disclaims any intent to communicate to students that the theory of evolution is the only accepted explanation of the origin of life, informs students of their right to follow their religious principles, and encourages students to evaluate all explanations of life’s origins, including those taught outside the classroom. We decide only that under the facts and circumstances of this case, the statement of the Tangipahoa Parish School Board is not sufficiently neutral to prevent it from violating the Establishment Clause.
There is, of course, nothing wrong with insisting upon governmental neutrality among competing claims concerning religion. Substantive neutrality is at the heart of the nonestablishment principle. As Professor Douglas Laycock puts it, the religion clause requires government to “minimize the extent to which it either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance.” But neutrality is precisely what the disclaimer policy sought to achieve. And it is precisely what the court has disallowed, leaving behind not neutrality, but a tilt toward the secularist predicates of Darwinism. The conclusion that an innocuous disclaimer constitutes an establishment of religion needs more basis in law than a passing reference to unspecified “facts and circumstances of this case.”
It takes the vote of four Supreme Court Justices to initiate review of a case. Only three—Chief Justice William Rehnquist, Justice Scalia, and Justice Clarence Thomas—voted to hear this case. Justice Scalia wrote a dissent from the denial of certiorari. In an earlier case Scalia compared the Lemon test to a “ghoul in a late–night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Noting that “a majority of the Justices has at various times expressed their disapproval of the Lemon test” (Justices Sandra Day O’Connor and Anthony Kennedy have also criticized Lemon, but voted not to hear this case), Scalia wrote that he would have used this case as a vehicle “to inter the Lemon test once for all.” The three dissenting Justices argued that even if it is correct to rely upon the Lemon test, the conclusion that the disclaimer advanced religion merited at least full review, if not summary reversal. “Far from advancing religion,” wrote Scalia, “the ‘principal or primary effect’ of the disclaimer at issue here is merely to advance freedom of thought.”
To an empirical observer the dispute over the primary effect of a policy should be easy to resolve. Observe the phenomenon. Formulate a hypothesis that accounts for all of the data with the fewest gratuitous assumptions. Then tell us what the results or effects are. Alas, the Lemon test does not require judges to use the scientific method in resolving a dispute about effects. Instead, prejudice trumps. There was no empirical observation of advancement of religion in this case for the simple reason that it was assumed from the outset. At least with the inverted legal reasoning of the Queen of Hearts, evidence had to come after she had announced the verdict. In the day–to–day operation of the Lemon test, evidence is never needed. Assertions can pass for “findings of fact.”
Imagine someone in the government with power to censor serious debate over the origins of life, and you will understand the power of the court injunction in the Louisiana disclaimer case. Imagine the ipse dixits that passed for legal reasoning in this case, and you will grasp the unsatisfactory character of an opinion that closes down discussion on the implausible fear that critical thinking about the origins of life in the universe is unconstitutional.
Edward McGlynn Gaffney, Jr. is a professor of law at Valparaiso University.