Posted by Timothy Sandefur on April 2, 2004 06:04 PM

Dr. Rosenhouse pointed out an absurd article on National Review Online which accuses the National Center for Science Education of "using federal tax dollars to insert religion into biology classrooms," because it has posted a website which says, in its entirety, that

The misconception that one has to choose between science and religion is divisive. Most Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings. In fact, many religious people, including theologians, feel that a deeper understanding of nature actually enriches their faith. Moreover, in the scientific community there are thousands of scientists who are devoutly religious and also accept evolution.
According to Prof. West, this represents an "effort to use religion to endorse evolution [a]s part of a larger public-relations strategy...to defuse skepticism of neo-Darwinism." By which he means, it's part of an attempt to explain to people that they really can accept the fact of evolution without abandoning their religious faith. Whether NCSE is right about that or not isn't relevant to West's allegation that NCSE's use of government grants to create this website violates "Supreme Court precedents on the establishment clause of the First Amendment." He is wrong about this.

West, who evidently is not a lawyer, does not explain just how NCSE is violating the Establishment Clause, so let's briefly review the law. The Establishment Clause prohibits the Federal Government from, among other things, setting up a church, "pass[ing] laws which aid one religion, aid all religions, or prefer one religion over another...[,] forc[ing] [ ]or influenc[ing] a person to go to or to remain away from church against his will or forc[ing] him to profess a belief or disbelief in any religion," or levying a tax "large or small...to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion." Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 15-16 (1947). In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court tried to devise a test for detecting when government action was a violation of the Establishment Clause. That test--in a modified form--is still controlling law; under it, the Court uses "three primary criteria...to evaluate whether government aid has the effect of advancing religion," namely, whether it "result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement'" of government and religion. Mitchell v. Helms, 530 U.S. 793, 808 (2000) (plurality op.) (quoting Agostini v. Felton, 521 U.S. 203, 234 (1997)).

First, note that it is extremely difficult to see how the paragraph cited above constitutes indoctrination of any sort, or the erection of a federal church. There are cases in which government has taken a far more unequivocal position on religious issues, and conservatives such as those who write for National Review Online have rarely expressed opposition to these. See, e.g., Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878) (upholding federal law banning Mormon practice of polygamy). Conservatives have usually advocated far more freedom for government to directly endorse religious doctrine. It is unclear to me how the NCSE's extremely mild wording--which seems much less of a normative assertion that religion really is compatible with evolution, than a simple observation that "many religious people" have no problem with evolution--would trouble those who believe that government ought to be able to openly endorse religious opinions. If West's charge of hypocrisy cuts at all, it cuts both ways.

But I don't think it cuts at all. NCSE says that its website was funded in part by a grant from the National Science Foundation. Government grants to private foundations can implicate the Establishment Clause only if they constitute endorsement of the religious views espoused by that particular foundation--that is, if they really are a tax to support a religious institution. Everson, 330 U.S. at 15-16. In several cases, however, the Court has upheld the use of government grants by private parties who might happen to use those grants for religious purposes. The most recent is Zelman v. Simmons-Harris, 536 U.S. 639 (2002), in which the Court held that

where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.... The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.
Id. at 652 (emphasis added). See also Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993); Helms, supra. This rationale was explained further by a plurality in Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995):
"Endorsement" connotes an expression or demonstration of approval or support. Our cases have accordingly equated "endorsement" with "promotion" or "favoritism." We find it peculiar to say that government "promotes" or "favors" a religious display by giving it the same access to a public forum that all other displays enjoy. And as a matter of Establishment Clause jurisprudence, we have consistently held that it is no violation for government to enact neutral policies that happen to benefit religion. Where we have tested for endorsement of religion, the subject of the test was either expression by the government itself or else government action alleged to discriminate in favor of private religious expression or activity. The test petitioners propose, which would attribute to a neutrally behaving government private religious expression, has no antecedent in our jurisprudence, and would better be called a "transferred endorsement" test.
Id. at 763-64 (citations omitted). Money grants to secular organizations which might make religious statements are not a violation of the Establishment Clause, as even Justice O'Connor noted. See Helms, 530 U.S. at 855-56 (O'Connor, J., concurring). The simple fact is that no reasonable person would find the NCSE site to be government-sponsored, government-endorsed religious advocacy. See Lynch v. Donnelly, 465 U.S. 668, 678 (1984)* (Court must "scrutinize[ ]...official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so.")

The National Science Foundation routinely gives grants even to religious institutions. The Catholic University of Notre Dame, for instance, has received almost $13 million in grants from the NSF. The Catholic University of San Diego has received almost $200,000. Even if the NCSE's statement really were advocacy of a particular religion--which it is not--the fact that the website is funded in part by a government grant would not violate the Establishment Clause--certainly it would be no more of a violation than government funding "faith based" social programs. But the fact that the NCSE's statement is a description rather than advocacy of a particular religious viewpoint makes this case much more like government funding a museum, or the broadcast of a "history of religion" show on PBS. Cf Donnelly, supra (display of religious material for secular purposes does not violate Establishment Clause). Nobody--and I'm sure no religious conservative--would suggest that these violate the Establishment Clause.

The NCSE's statement is correct as a matter of fact; it is not a religious statement. But even if it were, its use of funds from the National Science Foundation does not make its statements attributable to the government, and thus does not violate the Establishment Clause.

*-In the comments to Dr. Rosenhouse's post, Francis Beckwith cited Justice O'Connor's Lynch concurrence for the proposition that "the Court's endorsement test...[asks] whether the disputed activity suggests Ďa message to nonadherents that they are outsiders....'" This is not the law; Justice O'Connor spoke for herself only in that concurrence, and as the plurality opinions in Pinette and Mitchell make clear, her view is not shared by the majority of the Court. A feeling of exclusion is not "the test" for endorsement.