Posted by Timothy Sandefur on March 24, 2004 09:13 PM

I finally got around to reading the infamous student article by Lawrence VanDyke, Not Your Daddy's Fundamentalism: Intelligent Design in The Classroom, 117 Harv. L. Rev. 964 (2004). Most of the criticism leveled at the article was based on the fact that ID creationism is scientifically baseless, as indeed it is, as well as on the intellectual dishonesty of several of VanDyke's statements, both in the article and in the ensuing ruckus. But right as these criticisms are, I think they overlook the main problem of VanDyke's argument. That problem is one that goes to the heart of the legal aspects of the debate over the place of evolution in public schools.

VanDyke's real point is that "evolution's leading advocates...perceive a significant and motivating relationship between naturalism and evolution." Id. at 971. By "naturalism," VanDyke means what he sees as an entire philosophical iceberg, of which the scientific issue is only the tip. There is, he says, a "naturalistic philosophy inherent in their perception [sic] of evolution...." Id. In other words, evolution is part of a world-view, just as, say, prayer is part of a world-view. Where those of us who believe in science demand evidence and repeatable experiments, those who appeal to religion depend on faith and transcendence. Since the Constitution requires the state to be neutral with regard to religious or philosophical viewpoints (this argument proceeds) the state ought not teach evolution to the exclusion of religion any more than it ought to support Christianity to the exclusion of Islam or Hinduism.

There are three problems with this view.

First, courts have already rejected it. In Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994), the Ninth Circuit Court of Appeals said,

Charitably read, Peloza's complaint at most makes this claim: the school district's actions establish a state-supported religion of evolutionism, or more generally of "secular humanism." According to Peloza's complaint, all persons must adhere to one of two religious belief systems concerning "the origins of life and of the universe:" evolutionism, or creationism. Thus, the school district, in teaching evolutionism, is establishing a state-supported "religion." We reject this claim because neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are "religions" for Establishment Clause purposes. Indeed, both the dictionary definition of religion and the clear weight of the caselaw are to the contrary. The Supreme Court has held unequivocally that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not.

Id. at 521 (citing Edwards v. Aguillard, 482 U.S. 578 (1987)). VanDyke cites Peloza, but nowhere attempts to discuss its implications. (This is understandable, however, considering the space constraints of a book review.)

Second, and relatedly, if evolution is the tip of the iceberg of "evolutionism," then it would appear that "evolutionism" means the world view that demands evidence and rational extrapolation from data, and eschews "skyhooks" in explaining natural phenomena. If that's the definition of "evolutionism," (VanDyke calls it "methodological naturalism." 117 Harv. L. Rev. at 964) then is the state required to be neutral between it and other world views which do not demand evidence, rational extrapolation, and an eschewing of skyhooks? This is the most difficult part of the whole discussion, because in some cases the answer is clearly yes, and in some cases the answer is clearly no. Surely the court cannot ignore the difference between rationality and irrationality--because "[a]ny society adopting such a system would be courting anarchy." Employment Div. v. Smith, 494 U.S. 872, 888 (1990). Suppose a man has a patently absurd notion that his neighbor is reading his brain through highly sophisticated alien technology: he can't sue for nuisance, because this is a frivolous and irrational claim. See McPherson v. First Presbyterian Church, 120 Okl. 40 (1926) (nuisance suit cannot be maintained where neighbor's fear is irrational). Contra, Everett v. Paschall, 61 Wash. 47, 51 (1910). And some courts have taken judicial notice of the irrationality of certain pseudosciences, including phrenology and astrology. United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985).

But--as we lawyers like to say--on the other hand.... The Supreme Court has said that we cannot inquire into the factual validity of certain patently absurd factual claims that are based on religion. In United States v. Ballard, 322 U.S. 78 (1944), the defendants were charged with fraud because they claimed to be faith healers. The Court said that it could not address whether faith healing really was a valid practice or not, because while

[t]he religious views espoused by respondents might seem incredible, if not preposterous, to most people..., if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Id. at 87.

Ballard suggests that courts must, indeed, remain neutral between scientific and non-scientific worldviews. And if the government must treat these as equal, then consider the following rewording of a passage from Epperson:

there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of [Intelligent Design] because it is contrary to the belief of some that [relying on evidence and rational extrapolation from data, and eschewing "skyhooks" in explaining natural phenomena] must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the [scientific] views of some of its citizens. It is clear that [the belief that evidence and reason, rather than dogma and faith must explain the natural world] was and is the law's reason for existence. 393 U.S. at 107-08.

This is what the creationists want to see. And I don't think it is--as far as the First Amendment is concerned--an obviously silly argument, or an easy one to answer. Now, let me again reiterate that I believe evolution by natural selection is the only rational explanation for the origin of species, I do not believe schoolchildren should be taught creationism in any of its guises, and I believe that all people ought to rely on evidence and rational extrapolation of data and ought to eschew "skyhooks." But this is the real argument that the creationists are making, and we do ourselves no favors by dodging the issue: either "evolutionism" (or "methodological naturalism," or whatever term we use for rationality) must be treated by the state as interchangeable with irrational, mystical explanations of phenomena such as the origin of species, or not.

One potential answer to this conundrum has been to assert that evolution and religion are compatible, and therefore that evolution is not really a worldview anyway, and therefore the interchangeability issue never arises. This is the view of Gould, Ruse, et al. as I understand it. Like Dawkins, I find this unsatisfying. I think, if there is an answer, it must lie in a more precise understanding of the First Amendment. Ballard simply cannot be correct, at least, in its broadest apparent implications. The state can legitimately choose to teach children that the world is round instead of flat; that maggots do not spontaneously generate from meat, and so forth, even if their parents dispute these things on religious grounds. Indeed, whenever government acts, it is making a "statement" about a "preference": by creating schools, it is choosing knowledge over ignorance, and literacy over illiteracy. In doing so, the government is "speaking." And perhaps we will find a solution to the problem in cases involving government's own expression, such as Rust v. Sullivan, 500 U.S. 173, 193 (1991), in which the Court said that "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest," so long as it does not actually penalize those who express alternative viewpoints. But I see flaws in this analogy, too. In fact, under the First Amendment, parents do have the explicit right to--at least to some degree--choose ignorance instead of knowledge for their children. See Wisconsin v. Yoder, 406 U.S. 205 (1972).

To be honest, I do not believe any solution to this problem is possible so long as we have public schools. Of course, few are willing to seriously reconsider whether government should be in the education business at all (and this is problem number three). But public education inevitably spends some people's money--taken through taxes--to teach other people's children certain ideas. It is unfortunate that there are those who do believe that teaching children true ideas, like evolution (and, more importantly, teaching them to demand evidence and rational extrapolation from data, and to eschew "skyhooks" in explaining natural phenomena), is a bad thing. Very unforutnate. But if we agree with Jefferson that "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical," then we must confront the problem that public education inherently does just that. As I've noted elsewhere, when government gets involved, it always becomes "excessively entangled."