Posted by Timothy Sandefur on November 22, 2005 10:00 PM

In an article forthcoming in the Washington University Law Quarterly, Prof. Jay Wexler responds to the arguments of Prof. Francis Beckwith on the constitutional issues involved in the teaching of Intelligent Design. It’s a good article that will help the efforts of evolution’s defenders—and, as an added bonus, Wexler cites posts from the Thumb and allied blogs in his footnotes!

The article responds quite convincingly to many of Beckwith’s arguments endorsing the teaching of ID, but what interests me most is the issue of state neutrality. Beckwith has argued many times that the state must remain neutral between scientific explanations of the origin of species, and magical explanations of the origin of species (including ID). Scientistse who eschew magical or miraculous explanations have, Beckwith contends, rigged the system at the outset, and this violates the First Amendment because the state may not endorse, or teach, a “naturalistic” epistemology over a magical one. Wexler responds, first, that Beckwith’s contention that a commitment to non-magical explanations is an a priori bias is “simply not true. The fact that scientists apply the scientific method in their work reflects only a recognition that historically this method has produced tremendously successful results, in terms of explanation and prediction of natural phenomena.” (p. 7). I would probably quibble with the use of the word “only,” because for philosophical reasons I think there are reasons prior to historical experience for rejecting magical thinking, but Wexler’s answer is fair enough. So is the state forbidden from adopting the scientific method, even given this historical superiority? Of course not:

While the government may not discriminate against private speakers on the basis of viewpoint in an open or limited public forum, there is no constitutional requirement that the state’s own speech remain neutral. If the Constitution did impose such a requirement, then schools could not endorse any controversial moral or factual viewpoint whatsoever. They could not tell students, for example, to stay away from drugs, that gender equality is something worth striving for, or that the Holocaust actually occurred, without also presenting the arguments to the contrary. (Id.)

Government must be free to commit itself to “naturalism,” not only in its public utterances (or its sponsorship of private utterances), but also in its policies in general. If the state really must remain neutral between magical and scientific explanations of phenomena, then it would be literally paralyzed, even in its most basic functions. “[T]rue substantive neutrality towards religion is impossible,” writes Wexler (p. 21). The government “can take the position that racial intolerance and violence is wrong, that eating vegetables is not a sin, that the world is round, that people ought not to be vengeful, that war is sometimes justified, that it is wrong to marry more than one person, that conventional medicine works, and that it is impossible to walk through walls and fly, no matter how well one manages his or her life force.” (p. 22). A neutrality principle rigorous enough to do the work that Beckwith wants it to do would make the very existence of government impossible. (I make a similar point in my forthcoming article coauthored with Colin McRoberts: Piercing The Veil of Intelligent Design: Why Courts Should Beware of Creationism’s Secular Disguise, __Kan. J. L. Pub. Pol’y. __ (2006)). But while Wexler’s right about all this, there are some limits to which the government can embrace and really put into practice a non-magical understanding of the world. See, e.g., United States v. Ballard, 322 U.S. 78 (1944). It would be nice to see him discuss such limits.