Posted by Timothy Sandefur on October 13, 2005 10:22 AM

Larry Caldwell’s wife Jeanne Caldwell has reportedly filed a lawsuit against the National Science Foundation and UC Berkeley for violating the Establishment Clause. In substance it’s the same complaint that was publicized some time ago on National Review Online, and which, as I explained back then, is absolutely without basis in the law.

According to Caldwell’s press release, the “offending” website “makes the theological claim that ‘most Christian and Jewish religious groups have no conflict with the theory of evolution.’” This, of course, is not a theological claim at all, no more than it would be to say that “most Christians believe that Jesus Christ was the son of God,” or “Most Jewish groups are made up of Jews.” It is a descriptive statement, which is entirely appropriate in the context of taxpayer-funded education. No Court has ever suggested that the government cannot fund a statement which describes the beliefs of particular religious groups, even if they do so for a reason that parents do not want to hear. The government may declare (or fund other people declaring) that “most Christian and Jewish religious groups have no conflict with the theory of evolution,” because it is a fact, much like the fact that sun rises in the East, or the fact that the world is round, or the fact that human beings evolved from simpler life forms through a process of natural selection. All of these, being facts, may be stated as such by the government, without violating the First Amendment.

What the Establishment Clause would not permit is for the government to say that some statement within a religious belief is true or false; for instance, to say “those people who have no conflict with the theory of evolution are going to Hell because that contradicts the Bible.” That would violate the Establishment Clause because it would put the state’s imprimatur on the truth or falsehood of a statement within religion. But a statement made outside of the boundaries of religion, which describes particular religious beliefs—say, “in the olden days, Mormons practiced polygamy”—is a perfectly proper thing to say in the classroom. See Epperson v. State of Ark., 393 U.S. 97, 106 (1968) (“While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which ‘aid or oppose’ any religion. This prohibition is absolute.” (citations omitted)). And if it’s okay in the classroom, then it’s okay on a website that is only distantly related to any sort of government seal of approval.

But the press release goes on in describing this crime against the First Amendment: “this is illustrated by a cartoon depicting a scientist shaking hands with a pastor holding a Bible with a cross on it.” Holy cow! (Er, I mean, entirely secular cow.) Of course, there is nothing whatsoever unconstitutional about the government funding a website that objectively describes a fact about the religious community and then illustrates it with a picture that includes a cross. It says a lot about the intellectual honesty of those behind such lawsuits as this that they and their allies would at once argue that it is an offense to the Constitution to remove religious symbolism from government proclamations, but at the same time that it offends the Constitution to respectfully state a fact about religious communities.

Again, the press release: “A core claim of many evolutionists is that the origin of all life forms through evolution, including humans, was ‘unplanned’ and ‘undirected’. This claim clearly contradicts the teaching of all of the world’s major religions, including Christianity, Judaism, Islam, Hinduism, and Buddhism, that life on earth and people were created on purpose for a purpose.” So what? A core claim of many religious people is that Islam and Hinduism are false religions and that their adherents are destined for eternal damnation, but that hardly makes it unconstitutional for the Smithsonian to have a display on Islamic art or a website stating the facts about what Hindus believe. There are many people who do not agree with Mrs. Caldwell that evolution “clearly contradicts the teaching of all the world’s major religions,” and it is not unconstitutional for the government to fund the creation of a website that says that. What is the government supposed to do? Suppress that information so as to “manipulate” the views of students? But that is just what this lawsuit claims to oppose.

This lawsuit is a baseless, frivolous waste of taxpayer money and ought to be dismissed immediately.