More bad legal analysis

Posted by Timothy Sandefur on June 28, 2004 11:56 PM

A new article in the Wake Forest Law Review provides a shoddy legal which is, alas, all too common in the religion context. Beginning with a deeply flawed understanding of the roles of the Free Exercise and Establishment Clauses, the article ends up making foolish statements about creationism in the classroom.

Patrick M. Garry, Inequality Among Equals: Disparities in The Judicial Treatment of Free Speech And Religious Exercise Claims 39 Wake Forest L. Rev. 361 (2004), argues that courts tend to pay too much attention to freedom of speech, as opposed to other freedoms, and that they ought not to do this. Now, broadly speaking, this is true.

In the past seventy years, courts created a "double standard" by which so-called "fundamental" rights (speech, press, and so forth) are given far more protection than supposedly non-fundamental rights, like the ownership and use of property, or the right to earn a living, which receive almost no legal protection at all. As Justices Scalia and Thomas have correctly noted, this "unquestionably involves policymaking rather than neutral legal analysis." United States v. Carlton, 512 U.S. 26, 41 (1994) (Scalia and Thomas, JJ., concurring in judgment).

But that's not what Garry has in mind. He argues that "in connection with religious liberty. . . the courts have been far more inconsistent and far less protective." Garry, supra at 362. Then he lists some examples, and you see that he's already starting off on the wrong foot. For instance, he cites Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), as an example of the court turning its back on the freedom of religious exercise. But Doe--which held that a school district could not begin its football games with a student-led prayer--was not a free exercise case at all; it was an Establishment Clause case: the court held that the prayer violated the religious liberty of dissenting students not to be "psychologically coerced" into a prayer with which they disagreed. Although the majority of students, who voted to hold the prayer, may have believed that the Court's decision was insensitive to their religious freedom to hold a public prayer at the school's football games, the plaintiffs in the case saw it as vindicating their religious freedom. (I've said before that I think Doe was wrongly decided, because I don't buy the "psychological coercion" rationale. But if one grants that peer pressure can qualify as a form of coercion, then the Doe decision certainly was a victory for religious freedom.)

But Garry believes Doe and other cases indicate that

courts have applied the Establishment Clause, in a way that has often muted or negated religious liberty. . .. [F]ree speech issues are given a more favorable standard of review. Most governmental restrictions on speech are judged under a strict scrutiny standard, whereas many religious exercise issues receive a much lower standard of review. And though viewer or listener sensibilities are rarely considered in free speech cases, even when the speech is highly offensive, the reactions and impressions of objecting viewers and listeners are sometimes accorded a near veto-power in religious expression cases.
Supra at 363. It's hard to know where to begin with this. First, it is just not true that religious issues are given a "lower standard of review" at all. Garry cites Employment Division v. Smith, 494 U.S. 872 (1990), for this claim. Yet Smith simply holds that when it comes to a generally applicable law which is religiously neutral, a person's religion doesn't give him a free pass. In that case, a person argued that he should be allowed to ingest an illegal drug for religious purposes, and the Court held that, the anti-drug law was not targeted at his religion, and that the Free Exercise Clause didn't allow him to escape that law.

But in cases where the law does discriminate on the basis of religion, the Court employs the same strict scrutiny analysis that it employs in speech cases. The classic example of this is Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), in which the Court struck down an anti-butchering ordinance that was just a pretext for curtailing religious animal sacrifice. Hialeah came after Smith and shows that religiously discriminatory laws do receive strict scrutiny still. Yet Garry doesn't even cite the case. (He does, however, acknowledge in one parenthesis that Smith applies only "(as long. . .as the laws infringing on that conduct are neutral laws of general applicability)." Supra at 372.)

As for "listener sensibilities," these matter more in the religion cases because of the Establishment Clause. There is nothing analogous to it in the speech context. The Establishment Clause prohibits government from taking a position on an issue, so some Justices have held that audience perceptions are relevant to analyzing whether the government has violated this rule. The government is allowed to make statements on other issues, however--like, that smoking is bad, or that you should vote. Audience perceptions are therefore less relevant. See, e.g., National Endowment for The Arts v. Finley, 524 U. S. 569 (1998).

The flaws in his analysis then lead him to inaccuracies when discussing cases involving creationism. In a footnote, he writes

under the reasoning of Lee [v. Weisman, 505 U.S. 577 (1992)], public school instruction which offends a child's religious beliefs should constitute a violation of the Free Exercise Clause. And yet, in the school setting, the free speech-related doctrine of academic freedom takes precedence over the rights of religious exercise. If some nonreligious students are coerced by religious expressions of the type occurring in Lee or by the posting of the Ten Commandments, then it seems logical that religious students are coerced by some of the secular values they are taught in school (to the exclusion of religious ones). See Edwards v. Aguillard, 482 U.S. 578, 589 (1987) (striking down Louisiana's "Balanced Treatment" statute which required that wherever evolution is taught scientific creationism also be taught as a competing theory of origins). In other words, the coercion theory of Lee should go both ways, including the protection against government engaging in secular indoctrination that undermines a believer's religious principles. . ..
Supra at 374 n. 85. Now, again, I agree that the "psychological coercion" argument embraced in Lee is wrong, and in part precisely because if mere personal offense constitutes coercion, then nobody can say anything. But that is not the only issue involved here.

First, the Establishment Clause prohibits government from putting its imprimatur on a religious view--it does not prohibit the government from putting its imprimatur on things other than religion. Schools may teach students that smoking is bad for them, even if that might offend parents who smoke--and even if it offends people who smoke for religious reasons, like the plaintiffs in the Smith case!

Second,* personal offense is relevant to Establishment Clause cases because such offense is often indicative that an establishment is occurring. But personal offense is irrelevant in cases involving, say, non-smoking, because the government is not prohibited from taking such a position. In the same way, personal offense is not relevant to cases involving evolution, because while government is prohibited from taking a position on religious issues, it is not prohibited from teaching the facts. And so long as government is in the teaching business (which I don't think it should be, but that's for another day) then it is, by definition, going to "indoctrinate," in the sense of teaching students facts they and their parents may find unpalatable. That's what teaching is. So, while it may seem "paradoxical[ ]," to Garry that "pro-religious speech can violate the Establishment Clause, but anti-religious speech, or speech that denigrates or belittles religious beliefs, does not violate the Free Exercise Clause," id. at 378--but it only seems that way to Garry because he misunderstands the issues involved.

This misunderstanding continues in another footnote, when Garry writes

In Lee v. Weisman, Justice Kennedy argued that the state may not use the coercive power of government to enforce a particular religious or antireligious orthodoxy. But since school attendance is mandatory, then the teaching of viewpoints antagonistic to religion, according to the reasoning of Lee, can rise to the level of government coercion and "an attempt to employ the machinery of the State to enforce a religious [or antireligious] orthodoxy." 505 U.S. at 592. Furthermore, the forbidding of the teaching of creationism or Intelligent Design in public schools because "it lends support to a religion, while exclusively permitting or requiring the teaching of evolution, might be construed by a court as viewpoint discrimination." Francis J. Beckwith, Public Education, Religious Establishment, and the Challenge of Intelligent Design, 17 Notre Dame J.L., Ethics & Pub. Pol'y 461, 489 (2003).
Id. at 377 n. 99.

But, once again, the government is allowed to engage in viewpoint discrimination in most areas of life. All of teaching is "viewpoint discrimination" in some sense, since it prefers knowledge to ignorance, literacy over illiteracy, cooperation and peacefulness over bickering with one's classmates. We expect schools to engage in such discrimination. Government may teach students facts, such as that the world is round, that 2 + 2 = 4, that smoking causes cancer, and that the human species evolved through a process of non-random selection among randomly mutating genetic variables. The only time the Constitution prohibits government from engaging in viewpoint discrimination, is in basing benefits or burdens on religion. Now, it is certainly true that for some people, the fact of evolution runs counter to their religious views. But this is true of any number of facts that schools may teach students, and although it is certainly a problem--indeed, I believe an insoluble problem, if one grants the existence of public education--it does not mean that the Free Exercise or Establishment Clause prohibit government from teaching students evolution, or require the teaching of creationism.

For Garry,

[t]he more favorable judicial treatment of free speech claims (over free exercise claims) can also be seen in the area of school curriculum. Academic freedom, which is an offshoot of free speech, almost always takes precedence over free exercise rights. Take, for instance, the subject matter of evolution. When students who believe the biblical account of creation are required to treat evolution as true, they are in a sense being compelled to express views hostile to their faith.
Id. at 377. But, again, all government education necessarily does this. If Garry wishes to argue that all government education should be eradicated, that would be great--but he cannot argue that schools should be able to "in a sense" compel students to believe that smoking causes cancer, while simultaneously saying that the should not "in a sense" compel students to believe in the fact of evolution.

Garry misunderstands the issue of evolution education because he wants government to teach--just, not things he disagrees with. He attacks the Lee theory of psychological coercion (and rightly so) but at the same time, relies on it when arguing that schools violate the Establishment Clause by "coercing" students into believing in the fact of evolution. He doesn't seem to realize, among other things, that if the Lee case were overruled, his argument for "equal time" would evaporate with it. I get the sense that Garry's analysis suffers from a persecution complex that causes him to lash out at the courts for whatever reasons he can think of at the moment.

But to me, Garry's most upsetting error is his ignoring the difference between being forced to do something and being free to do something. He believes that Doe was wrongly decided because he thinks that free exercise of religion includes the right to compel or pressure others into a religious exercise. He criticizes the so-called "anti-accomodationist" position (that is, the position of Employment Division v. Smith, supra) because "[a]lthough the anti-accommodationists view their position as neutral, it is neutral only ‘for those who believe that full religious practice can occur in the "private" realm.' Mark D. Rosen, Establishment, Expressivism, and Federalism, 78 Chi.-Kent L. Rev. 669, 676 (2003). But there are many who believe that a full religious life is possible only if one's religious beliefs infuse every aspect of one's life, both private and public." Id. at 365 n.26. But the Establishment Clause limits the degree to which public officials may allow their religious beliefs to infuse their public lives. It prohibits them, for instance, from compelling a person to support a religious view, even if the public official believes that his religious duty is to institute such compulsion.

In a famous speech, Abraham Lincoln said that there were essentially two kinds of people in the world: wolves and sheep. The sheep believed that "liberty" meant the right to live their lives free from interference, while the wolves believed that "liberty" meant the right to eat sheep with impunity. Clearly, he said, the wolf and the sheep are not agreed on a definition of the word liberty. In this case, Garry believes that freedom of religion includes the right to compel people to support religious views they disagree with, while I believe that religious freedom means the right to worship as you please--to, as a famous person once said, pray in your closet--without government bossing you around. Clearly we are not agreed upon a definition of free exercise.

*-Update: I meant to add, another and very compelling reason, for disestablishment is that one should not be compelled to pay for the support of religious views with which one disagrees. This goes beyond the "psychological coercion" rationale, because there is genuine coercion involved: having to pay your tax dollars to support evangelism. This goes beyond mere personal offense at seeing a state imprimatur on religious views, and this would be alone enough to justify the outcome in Aguillard.

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Comment #4356

Posted by Ric Frost on June 29, 2004 10:42 AM (e) (s)

First some background: I am a Christian and a deacon in an evangelical church, but thanks mostly to places like this and talk.origins, I have abandoned my denomination’s position on the origins question. As an insider, I thought I would offer my perspective.

First, I would agree with the author that the real issue here is government involvement in education. Those debating that issue 150 years ago warned of exactly the situation we are facing today. Education cannot be value-neutral. Unfortunately, Christians in the US seem to think it is the government’s job to force everyone to act like Christians so we can go back to pretending we are a “Christian nation.”

Second, there is deep paranoia in the Christian community. From arguments over “under God” in the pledge to the removal of manger scenes in front of city hall, there has arisen a deep sense that “they” are out to get “us”. Feeding this is the fascination in evangelical Christianity with “end-times” events described in Revelation. Movies, books, websites, talk radio, etc. are flooded with talk of the “end times”. Every news story is mined for indications that the end is near. The removal of prayer from schools and public events is seen as the pivotal event that has sent us sliding down the slope to Armageddon.

My view: First, if we assume that there is some “they” out there trying to get “us,” my view is we have it coming. Compulsory education was created largely to indoctrinate Catholic children in Protestant Christianity. If the tables have turned against us, like many Christians at the time warned they would, then well…

Second, I’m perpetually confused as to why Christians assume that when they meet with opposition, they should look first to the government for redress. I’ve read the Gospels a number of times and have yet to find a time where Jesus appealed to Roman authority to enforce His right to free speech. Any Christian parent that doesn’t like what is happening in the government schools has a simple choice: pull their kids out. This, of course, involves time, money, and effort on their part. In other words, they will be required to be Biblical parents instead of breeders.

Which leads into number three: this whining is really getting on my nerves. At no time in human history and at no place on earth have Christians had an easier time of it than right now in Western culture. I doubt any Christian could read, say, Fox’s Book of Martyrs, and then claim Christians are being persecuted in the US.

So I guess my point, which I need to get to here real quick, is that whether Mr. Garry’s legal analysis is correct or not is, from the Christian perspective, completely beside the point. We have been given a job (Matthew 28:19-20) that does not depend on judges or lawyers or politicians. If half the resources expended in researching and writing this book (and a few hundred like it) were focused on doing what God told Christians to do, the impact would make this discussion moot (see Acts 2:40-47).

Comment #4357

Posted by Andrew on June 29, 2004 10:47 AM (e) (s)

If there’s an award for Most Reasonable Christian, I hereby nominate Ric Frost.  Bravo.

Comment #4358

Posted by RBH on June 29, 2004 11:39 AM (e) (s)

I appreciate Ric Frost’s Comment.  In conversations with evangelicals in my community who proposed that IDNet’s “Objective Origins Science Policy” be adopted by the local schools, I’ve learned that a significant source of the ‘paranoia’ is fear for their salvation, and more important, fear for their children’s salvation.  If one genuinely believes that so-called ‘Darwinism’ (a catch-all term typically referring to scientific explanations of everything from the Big Bang to evolutionary biology) is inherently  and necessarily atheistic and metaphysically materialistic — as many evangelicals do — then to allow one’s children to be exposed to it is to risk their immortal souls.  What parent would do that without a fight?

RBH

Comment #4359

Posted by FL on June 29, 2004 12:09 PM (e) (s)

I am a Christian and a deacon in an evangelical church, but thanks mostly to places like this and talk.origins, I have abandoned my denomination’s position on the origins question.

Hmmm.  First of all, I do appreciate the sincerity in which you made your comments, Ric.  I’m not saying I agree with you, nope, but I do express appreciation.

Not to distract from the topic thread, but it is the occasional unexpected comment like yours that causes me to pause for a moment.

Anyway, I want to ask you this:

Would you be willing to go ahead and say out loud what your denomination’s specific position on the “origins question” is?  I hope you’ll agree to do so.

For me, knowing what your specific denominational position is, would help me understand more clearly what you areand are not abandoning.

FL

Comment #4360

Posted by FL on June 29, 2004 12:12 PM (e) (s)

I am a Christian and a deacon in an evangelical church, but thanks mostly to places like this and talk.origins, I have abandoned my denomination’s position on the origins question.

Hmmm.  First of all, I do appreciate the sincerity in which you made your comments, Ric.  I’m not saying I agree with you, nope, but I do express appreciation.

Not to distract from the topic thread, but it is the occasional unexpected comment like yours that causes me to pause for a moment.

Anyway, I want to ask you this:

Would you be willing to go ahead and say out loud what your denomination’s specific position on the “origins question” is?  I hope you’ll agree to do so.

For me, knowing what your specific denominational position is, would help me understand more clearly what you areand are not abandoning.

FL

Comment #4363

Posted by Andrew on June 29, 2004 12:31 PM (e) (s)

Danger, Will Robinson!  Insincerity alert, level 5.

I, for one, think that the specific information “FL” requested from Mr. Frost would be irrelevant to the discussion here, and I suggest that if the two of them care to debate theology and creationism that they take it to the Bathroom Wall.

Comment #4364

Posted by Ric Frost on June 29, 2004 12:32 PM (e) (s)

FL wrote:

For me, knowing what your specific denominational position is, would help me understand more clearly what you areand are not abandoning.

Certainly. My denomination is fully in the YEC/Flood camp, meaning I’m a bit of a fish out of water right now. When my term is up as a deacon, my wife and I will be doing some serious reconsideration.

Comment #4365

Posted by Ric Frost on June 29, 2004 12:36 PM (e) (s)

FL wrote:

For me, knowing what your specific denominational position is, would help me understand more clearly what you areand are not abandoning.

Certainly. My denomination is fully in the YEC/Flood camp, meaning I’m a bit of a fish out of water right now. When my term is up as a deacon, my wife and I will be doing some serious reconsideration.

Andrew wrote:

I, for one, think that the specific information “FL” requested from Mr. Frost would be irrelevant to the discussion here, and I suggest that if the two of them care to debate theology and creationism that they take it to the Bathroom Wall.

Agreed. I offer the above as context for my initial comments only. I have no intention (nor the time) to turn this into a full-scale debate on theology.

Comment #4368

Posted by Francis J. Beckwith on June 29, 2004 02:03 PM (e) (s)

Tim writes:

In this case, Garry believes that freedom of religion includes the right to compel people to support religious views they disagree with, while I believe that religious freedom means the right to worship as you please—to, as a famous person once said, pray in your closet—without government bossing you around.

Interesting. So, are you suggesting that school vouchers are a good idea so that Christian parent, X, is not forced to pay through her taxes for a public education that teaches things which are inconsistent with her theological views (e.g., homosexuality is okay, let’s say) as well as the private education she pays for out of pocket?

Comment #4370

Posted by FL on June 29, 2004 02:15 PM (e) (s)

Ummmm, I didn’t say anything about debating anyone, Andrew.  My question for Ric, and the reason for asking, were both quite specific.  I honestly question why you even felt it necessary to jump in at all.

Did you not already nominate Ric for “Most Reasonable Christian”?  If so, why did you not trust Ric’s ability to reasonably answer the question for himself?

(I have to suggest, maybe you should stop worrying so much about others’ sincerity level, and simply look to your own for a while.) 

Ric, thank you again for your upfront answer.  It ~does~ make a difference what kind of Christian “origins position” we’re talking about, because there’s obviously more than one to consider. 
Thanks for narrowing it down, and thereby offering additional clarity to your previous comments.

If we were privately communicating by email or in person, I’d probably risk exploring an additional question:
whether or not you still believed in Genesis’ specific historical claims (Adam and Eve, The Fall, Noah’s Flood, etc. etc.) at least as a matter of biblical faith, despite evolutionists’ historical claims to the contrary.

But in this forum, I am very much content to stop at this point, and thus I close with a simple “thank you again” for the comments and responses you have given.

FL  :-)

Comment #4375

Posted by Timothy Sandefur on June 29, 2004 03:38 PM (e) (s)

Dr. Beckwith (who, despite the fact that he does not know me, rudely insists on using my first name) asks my views on school choice. I favor school choice, and helped write briefs to that effect in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the case which upheld the constitutionality of school choice programs.

Unfortunatey, such programs are really only a help, not a solution, since all government education programs, including ones permitting parental choice as to what schools they should go to, will to some degree, take money from parents to support doctrines they find offensive. Indeed, all government inherently does that. In Massachusetts v. Mellon, 262 U.S. 447 (1923),[/url] the Court held that taxpayers lack standing to sue when they argue that expenditures of their tax dollars support programs they find offensive. The only exception to this no-standing rule is in the realm of the Establishment Clause. See Flast v. Cohen, 392 U.S. 83 (1968). In other words, the only time you can enjoin the goverment from spending your money on something you find offensive is when it is spending the money on establishment.

This exception has some things going for it. As I’ve said, feelings of personal offense are relevant in the Establishment Clause context but not in others because the Establishment Clause is the only instance where government is explicitly prohibited from taking a position on a subject. But I’m not convinced that the government should be immune from suit for other illegal expenditures. Since this diverges widely from the point of my post, I’ll simply refer curious readers to Prof. Epstein’s excellent discussion of this point, Standing And Spending—The Role of Legal And Equitable Principles, 4 Chap. L. Rev. 1 (2001).

Comment #4377

Posted by Barney Frank on June 29, 2004 04:29 PM (e) (s)

Francis, just fyi:

Homosexuality is okay in the United States.  Oh, and black people and white people are allowed to have sex with each other, too.

American taxpayers can not be burdened with ensuring that the obnoxious religious beliefs of its citizens are continually propogated, particularly when those beliefs are legally recognized as discriminatory in nature.  Vouchers for private religious education which espouses bigotry mock the Establishment Clause as well as the Equal Protection Clause.

Comment #4378

Posted by Ed Darrell on June 29, 2004 04:59 PM (e) (s)

The trouble runs more deeply than I had feared.

1.  While the growth of public schooling occurred during a period when there was a great influx of Catholics and there were Protestant/Catholic disputes, the Jeffersonian model was still the working model.  Jefferson and Madison argued that a democratic republic is impossible without an educated populace from which to draw people to run the government, and to make decisions.  Public education is a tool for democracy in America, not a tool against Catholics.  The educational purposes of our public education system have always been more important than any religious indoctrination purpose.  Theology has never been a great or significant topic for public schooling, while geography, writing, reading, math, history and science have been staples.

2.  Because public schools are set up to provide good citizens, funding for public education is not a right given to any one student (exept in some states), but is instead an obligation of all citizens.  Vouchers that take money from public education are based on the idea that education is a right to a transfer payment, and not an obligation of the payer of the tax.  Litigation based on such fuzzy notions of how and why we have public education will only fuzz up the issues more.

3.  Claiming Doe to be a free exercise case is bizarre.  People keep forgetting the facts of the case.  To get around the First Amendment issues, the local school district sponsored an election at the high school to determine whether prayers would be said.  That selection being in favor of prayers, they sponsored an election to select a “chaplain” to pray.  In the contest year, the daughter of the local Baptist minister won a landslide over a Mormon kid.  (If your establishment violation radar is not all atingle, you need to get it adjusted.)  Then, when Catholics and Mormons sued to stop the prayers, the district instead wrote out detailed rules for prayers.  The prayers were to be said at a set time and place, etc., etc.

I’ve often noted a shorthand way to determine whether there is an establishment clause violation:  There is a violation if any governmental entity tells one whether to pray, or when to pray, or where to pray, or how to pray, or what to pray for, or to whom or what to pray. 

This case has no relationship to the teaching of evolution in science class.

4.  It’s troubling to see legal scholars citing Beckwith’s error-prone analysis.  I find it interesting, in the cited section, that Beckwith claims that learning about evolution, which is just gathering knowledge, is religiously offensive to some.  Not even fundamentalist Christians in the U.S. are usually so bold as to admit they are pro-ignorance.  That is the root of the noxious weed creationists have planted on our education and legal systems.

Comment #4380

Posted by Michael Hopkins on June 29, 2004 06:53 PM (e) (s)

We just had a post by a “Barney Frank” complete with email address that suggests that he really is in Congress and hense really is the Rep. Frank (D-Ma).

If it really was Rep. Frank then I apologize in advance.  It must be hard to be famous and then have everyone doubt that you are who you say you are.  Welcome to the Panda’s Thumb and please feel free to invite all 434 of your fellow members of the House to read it.

Can someone in managment here check to see if this person is coming from a ISP that Rep. Frank might be using?  Two hours after a comment on homosexuality appears in a reader’s comment in a minor blog a reply comes from a congressman who is well known in regards to this issue!  I suspect an impersonation which is a violation of policy here.

—
Anti-spam: replace “usenet” with “harlequin2”

Comment #4381

Posted by Timothy Sandefur on June 29, 2004 07:35 PM (e) (s)

Mr. Frank says that “[v]ouchers for private religious education which espouses bigotry mock the Establishment Clause as well as the Equal Protection Clause.” I disagree. Public education inherently involves spending taxpayer money on the propagation of ideas which are offensive to some. It offends me greatly, for example, that my tax dollars are spent to teach California students certain leftist political doctrines. But personal offense is therefore not enough to “mock” the Equal Protection Clause.

It is true that the Establishment Clause is different—there, the state is prohibited from putting its imprimatur on religious doctrines. (It is not prohibited from putting its imprimatur on all espousing of bigotry, however. Racial bigotry, maybe,* but schools may teach students, for instance, that France sucks, even though that may not be true.) The reason, however, that school choice programs do not violate the Establishment Clause is that they do not put such an imprimatur on the religious doctrines taught at religious schools: parent exercise their own choices in where to send their children to school, which cuts off any potential signal of government endorsement. “[P]eople know that the government doesn’t necessarily endorse private choices that people make with government funds, any more than it endorses cabbage by letting people use food stamps to buy the food of their choice, which may include cabbage. The government doesn’t endorse Catholicism by helping GIs go to Notre Dame….” Eugene Volokh, Equal Treatment Is Not Establishment, 13 Notre Dame J.L. Ethics & Pub. Pol’y 341, 357-358 (1999).

Mr. Darrell makes two points with which I disagree, although they are not really germane to my post. First, it is certainly true that the concept of public education is based on what he calls “the Jeffersonian model,” that the success of republican government depends on an educated populace, and therefore that public schools are a “tool for democracy in America.” But I don’t think one can say that “[t]heology has never been a great or significant topic for public schooling, while geography, writing, reading, math, history and science have been staples.” In fact, religious instruction was historically considered just as important as science, history, or math, in effecting the “tool for democracy.” I personally disagree with that position, but that’s the historical record. Indeed, one of the first public education laws in America was Massachusetts’ “Old Deluder Satan Act,” which declared that the “old deluder, Satan” profited by spreading ignorance, and therefore the state should create schools to prevent the moral destruction of Our Children. Again, not something to which I’m sympathetic, but them’s the facts.

Second, Mr. Darrell says that “funding for public education is not a right given to any one student (exept in some states), but is instead an obligation of all citizens. Vouchers that take money from public education are based on the idea that education is a right to a transfer payment, and not an obligation of the payer of the tax.” Now, I would think a tax is itself an obligation, for one thing, rather than a privilege for which one has to pay by going to a government school. For another, all of government is, inherently, wealth transfer. Public education is no exception. When a state declares that a student has a “right” to a taxpayer-funded education, as California has, it is saying that the student has a right to take money from other people to pay for his own education. I certainly do not agree with this, but, again, them’s the facts. Once a state determines that a student has the right to force taxpayers to buy him an education, there is no reason it may not also decide to force taxpayers to buy him an education at the school of his parents’ choosing—which is all that school choice programs do. In making such a decision, however, the state retains—and, as Justice Breyer pointed out in his Zelman dissent, has already exercised—the authority to regulate the schools at which the vouchers are spent.

Mr. Darrell sees education as a duty we owe to the state. This is deeply troubling for one who believes, as I do, in individual liberty, but I must concede that he has a point. As Hayek said,

The very magnitude of the power over men’s minds that a highly centralized and government-dominated system of education places in the hands of the authorities ought to make one hesitate before accepting it too readily. Up to a point, the arguments that justify compulsory education also require that government should prescribe some of the content of this education. As we have already mentioned, there may be circumstances in which the case for authority’s providing a common  cultural background for all citizens becomes very strong. Yet we must remember that it is the provision of education by government which creates such problems as that of the segregation of Negroes in the United States—difficult problems of ethnic or religious minorities which are bound to arise where government takes control of the chief instruments of transmitting culture.

The Constitution of Liberty 379 (1960). See also Henry Adams, The Education of Henry Adams 78 (Boston: Houghton Mifflin, 1961) (1918) (“All State education is a sort of dynamo machine for polarizing the popular mind; for turning and holding its lines of force in the direction supposed to be most effective for state purposes.”)

*-The Thirteenth Amendment prohibits badges and incidents of slavery, which, along with the Equal Protection Clause, might prohibit the state from endorsing racial bigotry in the same way that the Establishment Clause prohibits the state from endorsing a religious view. See, e.g., Hamilton v. Alabama, 376 U.S. 650 (1964), rev’g Ex parte Hamilton, 275 Ala. 574 (1963).

Comment #4382

Posted by Barney Frank on June 29, 2004 08:13 PM (e) (s)

“Mister” Sandefur says

Mr. Frank says that “[v]ouchers for private religious education which espouses bigotry mock the Establishment Clause as well as the Equal Protection Clause.  It offends me greatly, for example, that my tax dollars are spent to teach California students certain leftist political doctrines. But personal offense is therefore not enough to “mock” the Equal Protection Clause.

Ah, Mister Sandefur, but it’s not your “personal offense” which is the Constitutional problem.  It’s the encouragement of discrimination.  Do you believe that I would have no standing to bring an Equal Protection case against a tax-payer (voucher) funded teacher who home-schooled children in my school district that blacks were mentally and physiologically more primitive than whites?  Or that they deserved to be treated or viewed differently from others because of who they are?Substitute women for blacks:  What do you think?  Substitute gays for blacks: what do you think?

I know it’s a bit OT but seriously: this isn’t just taking my tax money to blow up Muslims on the other side of the planet.  Nor is it a failure to teach the details of evolutionary theory.  This is blatant encouragement of discrimination.  I am not aware of a standing case that is directly on point here (although I am aware that equal protection cases are subject to the general principles re standing).  I think at the very least such a case would get to the Supremes and it would be given serious consideration.  I’d be sure to use the Hamilton case you cited as a backup, and I’d bootstrap the equal protection args in there.  Somehow. ;)

Note to Mr. Hopkins: I believe if I was the Mr. Frank you imagined I was, I would have a “.gov” address.  I apologize to the PT community if anyone was misled by my tongue-in-cheek choice of ID.  Why is it that Mister Sandefur’s posts seem to bring out the cop in all of us? ;)

Comment #4384

Posted by Bob Maurus on June 29, 2004 09:23 PM (e) (s)

Came across “barney frank” on another chat/blog site (maybe evangelical outpost?) and decided he wasn’t “the” Barney Frank

Comment #4388

Posted by Timothy Sandefur on June 29, 2004 11:21 PM (e) (s)

As Mr. Frank says, this has diverged from the topic. But I will respond to his points on my own weblog, Freespace.

*-Update:Here is my response.

Comment #4393

Posted by Ed Darrell on June 30, 2004 08:55 AM (e) (s)

Mr. Sanderfur urges the original Massachusetts act requiring villages and towns to educate kids as evidence of theological indoctrination.  However, I think a fair reading of what that 1647 law actually says supports my point:  It calls for the establishment of schools to teach kids to read, and it requires no theological education.  The American consensus (prior to 1954, as best I can determine) was that ignorance was dangerous and close to a sin, if not a sin outright.  Laws prior to the Constitution frequently cited promotion of good morals as a reason for the laws, but none that I can find call for education in theology (see the various Northwest Ordinances, for examples; after calling for religious freedom, they note that morality is important, and urge education as a precursor to morality — they do not call for theological education).  Instead, they call for education in reading.  Few go so far as Jefferson did when he said it was essential to get the Bible out of the schools, and then urged teaching morality instead.  I have not found evidence that theology was ever a major component of education in publicly-supported or government schools.  Allegations that early schools were more theologically inclined were found lacking evidence for the school prayer cases in the 1960s.  We need to be careful not to confuse occasional calls for a Bible verse or a prayer here and there for real theology study.

Consequently, arguments that are based on an assumption that we have a long history of favoring Christian ideas in all phases of curricula in public schools tend to lead us astray.  Schools were not intended to indoctrinate kids in religion (especially in western Massachusetts in the 18th century, where Congregationalists faced the reality of diversity among Christians).  Consequently, creationist/intelligent design claims that teaching science (such as evolution) in schools is intended to counter their faith are historically in error.

Second, I think it’s important to understand that most kids have no legal right to a public education. That was part of the point I was trying to make on vouchers, and I think it affects the evolution discussions significantly.  If kids have a right to an education, that right could easily find expression in a suit demanding that schools NOT teach creationism except in its errors.  A right to education would be a right to correct information, not folderol.  I think that creationists and other religisously-motivated people who start from the assumption that the state has a duty to educate their kids as they see fit, miss the point.  Jefferson wanted to amend the Constitution to provide education rights, but that proposal never made it to paper.  There is no federal right.  States, like Texas, sometimes mention a duty of the state to provide schools, but I don’t think any state has established a right to education for any citizen. 

Education is not a right, nor is it a duty the kid to be educated owes anyone.  The provision of education to preserve our republican democracy is a necessity, and therefore it is an obligation tax-paying citizens owe to the rest of our citizens.  Because there is no right to education at stake, creationists don’t have a right to avoid confrontation with the great ideas of western civilization.  We’re a diverse nation, and we can tolerate a great deal of ignorance among our fellow citizens — but that does not require that we inculcate such ignorance, nor does it establish a right for people to be ignorant.

The minority of creationists is louder than Christian Scientists, but still a minority.  What would be the effect of Christian Scientists claiming a right to have inserted into biology books all the arguments against germ theory?  If creationists have a right to get anti-evolution materials inserted into courses to avoid offense to their religion, why wouldn’t Christian Scientists have the same right against much of the rest of biology?

Perhaps if the fundamentalists started taking exception to the religious teachings of Pythagoras, and called for the Pythagorean Theorem to be deleted from math books, we might put the issue in its proper focus.  Knowing an idea is not the same as endorsing it — but ignorance is a serious problem.  Avoiding ideas can be dangerous, and there is no duty the government has to protect delicate religious sensibilities from the facts of life.

Ignorance isn’t a free speech right, and calls to protect ignorance under the guise of avoiding offense to religious sensibilities of religious minorities are not free exercise or free speech issues — they are establishment issues, and so far the courts have dealt with them pretty well.  There is no free speech or free exercise right to be ignorant, even ignorant of ideas one wishes didn’t exist for whatever reason.

Comment #4394

Posted by Timothy Sandefur on June 30, 2004 10:44 AM (e) (s)

Mr. Darrell makes some interesting points with regard to teaching of Christianity in schools in early America, although I don’t find it as easy to distinguish theology from religious morality education as he does.

However, he’s not quite right to say that “most kids have no legal right to a public education.” It’s true as a philosophical matter that nobody has a right to an education, because educations are provided by others, and nobody has the right to compel another person to provide him with an education, any more than a person has the right to compel another person to provide him with a car or a television set or any other transfer of wealth. All coercive transfers of wealth are violations of rights. But as far as a “legal right” goes, many states, perhaps most states, have determined that such a right does exist. California’s Supreme Court, for instance, has determined that a public education is a “fundamental right.” See, e.g., Butt v. State of California, 4 Cal.4th 668, 686 (1992). The federal Supreme Court, fortunately, has determined otherwise as far as the Federal Constitution is concerned. San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).

Does this mean that “[a] right to education would be a right to correct information, not folderol”? Well, there have been lawsuits against the state arguing that the right to an education means the right to a quality education, and arguing that the state has violated this right by providing the poor quality public schools that California has. I don’t know if these have been successful, but I don’t believe so. Courts tend to defer to the Legislature’s judgment, or the judgment of local school districts, as to how to fund and operate public schools. Nor do the courts intervene when it comes to poor quality teaching. Attempts to sue public school teachers for malpractice, for example, have not succeeded because Courts refuse to intervene to determine what constitutes a quality education. See, e.g., Brown v. Compton Unified Sch. Dist., 80 Cal. Rptr. 2d 171 (1998); see further Todd A. DeMitchell and Terri A. DeMitchell, Statutes And Standards: Has The Door to Educational Malpractice Been Opened?, 2003 B.Y.U. Educ. & L.J. 485. Once again, I disagree with this holding—I agree that if the state undertakes to educate, it ought to educate competently, but them’s the breaks. I highly doubt a court would entertain a suit against a creationist teacher on the grounds that he is violating the right to a quality education—but hey, why not try?

Mr. Darrell’s statement that “Education is not a right, nor is it a duty the kid to be educated owes anyone. The provision of education to preserve our republican democracy is a necessity, and therefore it is an obligation tax-paying citizens owe to the rest of our citizens”—makes no sense to me. I see no distinction between an unchosen “obligation” imposed on “tax-paying citizens” by “the rest of our citizens” and a “duty.” And I think it’s terrible to say that a person owes an obligation to the state to attend public schools in order to preserve the state. This is nothing less than a justification of government mind control, of which we ought to be extremely skeptical, if for no other reason, than because the public choice effect is unavoidable—such schools will be taken over by whatever political interest group is most adept at taking them over. As John Stuart Mill said, “A general state education is a mere contrivance for moulding people to be exactly like one another and the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or a majority of the existing generation, in proportion as it is efficient and successful and establishes a despotism over the mind, leading, by natural tendency, to one over the body.” (quoted in Hayek, supra at 376. Even if it were not for the public choice effect, government education is inherently contrary to the spirit of skepticism and individual thought necessary to making good republican citizens. See Karl Popper, 1 The Open Society And Its Enemies 135 (5th ed. 1966).

Nor do I agree that “There is no free speech or free exercise right to be ignorant, even ignorant of ideas one wishes didn’t exist for whatever reason.” Actually, I think the right to be ignorant is an absolutely essential part of these rights. I have the right, and I exercise it every Sunday, to be ignorant of the alleged blessings of Episcopalianism, which are taught a block away. Now, one’s right to be ignorant does not mean that he has the right to silence another person, but he certainly has the right to turn off his TV or choose not to read his junk mail. And parents do have the right to teach their children untrue things—troubling as this is to me. But that’s what “free exercise” means.

Finally, I have never heard that “Jefferson wanted to amend the Constitution to provide education rights, but that proposal never made it to paper.” I would be quite shocked if this were true. Could you provide me with more information on this, Mr. Darrell?

This conversation, too, has drifted, so I will post any further discussion at Freespace.

Comment #4396

Posted by Ric Frost on June 30, 2004 03:16 PM (e) (s)

At the risk of taking this further off track, I will try to bring it back on track (if that makes any sense whatsoever).

1. Whether or not the “Native Americans” of the mid-19th century were successful in using the bludgeon of compulsory education laws to combat the spread of Catholicism says nothing about their intent, which is clear from editorials and debates in the state capitals at the time.

2. My main point was, like the “Native Americans” of the mid-19th century (and likely many other times and places), Christians today are quick to call on government to stop people from doing things they don’t like, whether it’s homosexual marriage, inter-racial marriage, alchohol, tobacco, or teaching “evil-ution.” Reliance on legal doctrines and judicial muscle to transform people rather than the life-changing power of the Gospel is, to put it bluntly, sin.

Comment #4398

Posted by Timothy Sandefur on June 30, 2004 03:25 PM (e) (s)

Although I am not a Christian, I absolutely agree with Deacon Frost’s second point. I can’t think of anything more obviously contrary to the actual teachings of Christ than the constant seeking of government aid, government protection, and government coercion.

Comment #4401

Posted by Ed Darrell on June 30, 2004 06:19 PM (e) (s)

I’m occupied trying to update my business law course, so my inability to communicate adequately may have an excuse.  In any case I’m not making the necessary point to Mr. Sandefur.  I apologize; I’ll make one more run.

Mr. Sandefur says, “And I think it’s terrible to say that a person owes an obligation to the state to attend public schools in order to preserve the state.”

I agree, and that’s not what I said.  The obligation I’m talking about is the obligation of citizens (beyond the general ages of education, we may hope) to support schools.  It is true that all states now have compulsory education laws, and like Jefferson I wonder whether a right to education wouldn’t be a better path — but when he structured a school system, Jefferson’s plan offered the right only to read and do basic math to all; the top 10 percent in selected fields were those who would win further education. 

I’m asking that we regard public education from the other end of the scope we’ve been using:  Money spent on a kid’s education is not a right the kid has, and the kid has no right to insist on a choice of how or where to spend that money; instead, money spent is an investment by the citizens who pay the money.  Fittingly, in most of the more than 15,000 jurisdictions where local school boards rule education in America, the bulk of the money comes from property taxes.  This system produces some unfortunate inequalities, such as those we struggle with here in Texas.  But the simple fact remains that education is a duty of the citizen who pays for the next generation to learn, and not a right of the student, nor even necessarily a duty of the student to learn.  Education is an obligation of the taxpaying citizen.

Yes, we may choose to be ignorant of the religious beliefs and persuasions of others; there are other things that it is crime not to know, which we expect kids in public schools (or any school) to get, such as basic rules of driving and some basic public health and safety rules.  But this is the distinction:  Anti-science, anti-evolution views are inherently religious, and therefore prevented by the establishment clauses of state and federal constitutions.

Finally, I don’t have at my fingertips the passage in which Jefferson discussed his plans to put a right to education in federal law.  It was in correspondence with Madison or Rush as I recall, and it was not outlined well enough to know what he may have had in mind.  I should have it more accessible and will continue to look through my library.  We do know he regarded education as the foundation of morality in a person, however, and that he worked to keep religion qua religion out of the curriculum of schools throughout his life. Looking quickly to see if I could find the passage, however, I did run into Jefferson’s letter to the Philadelphia bookseller Nicholas Gouin Dufief, complaining of censorship of biology books (letter of April 19, 1814).  The book in question was Sur la Creation du Monde, un Systeme d’Organization Primitive, authored by a fellow named de Becourt.  The copy Jefferson ordered from Philadelphia was not delivered, appearing to have been intercepted by some local court in Pennsylvania as inappropriate for Christians to read.  “I am really mortified to be told that, in the United States of America, a fact like this can become a subject of inquiry, and of criminal inquiry, too, as an offence against religion; that a question about a sale of a book can be carried before the civil magistrate.  Is this then our freedom of religion? and are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? And who is thus to dogmatize religious opinions for our citizens?  .  .  . It is an insult to our citizens to question whether they are rational beings or not, and blasphemy against religion to suppose it cannot stand the test of truth and reason.  If M. de Becourt’s book be false in facts, disprove them; if false in its reasoning, refute it.  But for God’s sake, let us freely hear both sides, if we choose…”  This offers clues for where Jefferson would stand on a law such as that which snared John Scopes, or which angered Mr. Aquillard.

If creationists insist their faith and their children cannot stand the test of truth and reason, should we listen to them?

Comment #4405

Posted by Great White Wonder on June 30, 2004 08:09 PM (e) (s)

the brillian Ed Darrell said

If creationists insist their faith and their children cannot stand the test of truth and reason, should we listen to them?

Wow.  In a damn nutshell.  I vote: “no.”

Can someone put this question permanently in gold letters at the top of the Pandas Thumb home page?

Comment #4412

Posted by Timothy Sandefur on July 1, 2004 10:53 AM (e) (s)

My response to Mr. Darrell is here.

Comment #4413

Posted by FL on July 1, 2004 11:53 AM (e) (s)

Anti-science, anti-evolution views are inherently religious, and therefore prevented by the establishment clauses of state and federal constitutions.

A curious remark.  Let me ask you something.  Given the following 3-point ID hypothesis:

1.  Specified complexity is well-defined and empirically detectable.

2.  Undirected natural causes are incapable of explaining specified complexity.

3.  Intelligent causation is the best explanation for specified complexity.

….please show me where any or all of Dembski’s specific 3-point ID hypothesis is inherently religious, in and of itself.  Thanks.

—————————-

An (admittedly off topic) side question for Ric:  Was Martin Luther King and other Christians wrong to pressure the government for the social changes they desired?  They did NOT just rely on the “life changing power of the Gospel” (at least in terms of preaching and teaching alone).  They also did a lot of public political action as well.  Were they wrong?

FL

Comment #4414

Posted by Andrew on July 1, 2004 01:00 PM (e) (s)

Duh.  Point (3) is inherently religious.  If Demsbski et al. were truly not making any assumptions about the identity of their designer, their hypothesis would be null on face.

“Any possible universe could be explained as the work of some sort of designer. Even a universe that is completely chaotic, without any laws or regularities at all, could be supposed to have been designed by an idiot.”  (Steven Weinberg, Skeptical Inquirer, Sept. 2001).

Since ID purports on face to distinguish between “completely random” and “non-random” instances of design, it necessarily imputes certain characteristics to the designer, and THAT is a religious exercise.

*sigh* whack one troll, and five take his place….

Comment #4415

Posted by Frank Schmidt on July 1, 2004 01:14 PM (e) (s)

FL conflates a couple of points, and misses others. So I’ll take a shot at enlightening him, altho I fear he won’t buy this.

Notice that I used the word enlightenment; this was deliberate, because both science and American political theory are products of that period of history. The emphasis in both is on the use of reason and verifiable observation. So here goes:

.please show me where any or all of Dembski’s specific 3-point ID hypothesis is inherently religious, in and of itself.  Thanks.

Let’s start with point 3:

3.  Intelligent causation is the best explanation for specified complexity.

I commend to you Eliot Sober’s excellent essay “How not to detect design” (available on both his website, and reprinted in Pennock’s Intelligent Design and its Critics Here and elsewhere he points out that all judgements about design are made with a reference to known designers. So while we can scientifically infer the existence of designers for analogues of design processes we know (e.g., in anthropology) there is no independent evidence for a designer for Biology, because the process is unobserved. Evidence from revelation isn’t scientifically allowable, because it can’t be verified or modeled. So, notwithstanding the creationist screeds of Dembski’s other writings, he is asking the wrong questions and barking up the wrong tree. Whether it’s true or not, ID just isn’t science, and won’t be until there is a verifiable observation of it in action.

Regarding the MLK mal mot. I am really getting tired of fundamentalists, most of whose churches were institutionally opposed to Dr. King while he was alive and working, invoking his memory as they mount their favorite theocratic hobbyhorse. King saw and used religion properly, as strength and motivation, not as a literal view of science and life. His motives were much more complex than simple religion (e.g., the influence of Gandhi and through him, Thoreau).  Furthermore, what about the non-religious people in the Civil Rights movement, including political leftists? Does their involvement mean that we ought to adopt a socialist economy?  The Civil Rights pioneers appealed to the nearly universal sense of justice in Americans, and were successful for that reason primarily.

Comment #4416

Posted by Ed Darrell on July 1, 2004 03:24 PM (e) (s)

FL sets a hypothesis, as a response to my note that anti-science in science classes is inherently a religious position: 

A curious remark.  Let me ask you something.  Given the following 3-point ID hypothesis:

1.  Specified complexity is well-defined and empirically detectable.

2.  Undirected natural causes are incapable of explaining specified complexity.

3.  Intelligent causation is the best explanation for specified complexity.

….please show me where any or all of Dembski’s specific 3-point ID hypothesis is inherently religious, in and of itself.  Thanks.


Were #1 true, and #2 were true, and #3 had not already been disproven by 5,000 years of animal husbandry, crop breeding and observation in nature, there would be no problem except for the fact that Dembski’s 3-point ID hypothesis still doesn’t seem to be able to distinguish between an object designed by an intelligence and an object designed by any other natural influence.

Without any research to back up the claims, however, “belief” that Dembski has a case is based on faith alone. 

If there were firm evidence that Jesus walked on water — photos, videos, footprints on the water — teaching that Jesus walked on water would not be religion.  Absent such evidence, it is faith. ID is no different.  To ask that we accept “intelligent design” without hard evidence from the lab bench, or even a generalized theory that incorporates verifiable science, is to ask a leap of faith.  Such requests are religious requests, not science.

Comment #4420

Posted by Francis J. Beckwith on July 1, 2004 04:17 PM (e) (s)

Dr. Beckwith (who, despite the fact that he does not know me, rudely insists on using my first name) asks my views on school choice. I favor school choice, and helped write briefs to that effect in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the case which upheld the constitutionality of school choice programs.

I have never used your first name.  I’ve always used my own, though in different variations: sometimes “Frank,” “Frankie,” “Francis,” or “Francois.” In high school I was called “Goat” during my sophomore year because of a permanent gone bad. As a result of an incredible blocked-shot against Western High School (Las Vegas) in 1978 (My 5’11” self pinned on the backboard an attempted dunk by the legendary Willie Hicks), I was called “Sudden `Ank” or the “Hankmonster” for a while.  Though I never used either name to introduce myself, others used them. In sum, I have never used your first name.

Warmly,
Frank

Comment #4421

Posted by Great White Wonder on July 1, 2004 04:33 PM (e) (s)

Frank

See 4368 where you referred to The Sandman by his given name: “Tim.”  Personally, I think this naming formality carries no weight in the blogosphere unless it’s explicitly set forth as a “rule” by the blog owner.

Comment #4422

Posted by Francis J. Beckwith on July 1, 2004 04:38 PM (e) (s)

Frank Schmidt writes:

Regarding the MLK mal mot. I am really getting tired of fundamentalists, most of whose churches were institutionally opposed to Dr. King while he was alive and working, invoking his memory as they mount their favorite theocratic hobbyhorse. King saw and used religion properly, as strength and motivation, not as a literal view of science and life.

That’s really unfair. I can only speak for myself, but I grew up in a fairly liberal home in which my parents had us watch Dr. King as well as the Kennedys during the mid 60s (I’m too young to fully remember JFK). I grew up respecting King and his work, and when I studied philosophy his influence was instrumental in my own work in natural law and political philosophy. 

I think we have to take King at face value and not read back into him either our liberal or conservative points of view. You’re right, some conservatives jump on the King bandwagon when in fact they probably would have resisted him if they were alive at the time. On the other hand, many conservatives—such as Richard John Neuhaus, Charlton Heston, and others—marched with King.  Their eventual move to the right was the result of the hostility of the secular left that took over their Democratic Party. Moreoever, there are secular liberals who read back into King their own procilivities, trying to play down the fact that he was a serious believer who believed in natural law, universal moral principles that were not merely “American” but applicable to everyone everywhere. In that sense, King rejected the fashionable relativism of our own age (found on the far left) as well as the rigid ethnocentrism that characterizes some on the far right. I think it’s a testimony to King’s greatness that everyone finds in him something inspiring. 

Reread “A Letter from a Birmingham Jail.” Although it is a fine piece of applied philosophy, it is interesting who King relies on to make his case: Socrates, Jesus, Paul, Augustine, and Aquinas.  He makes the case that the civil law in ths South that denied blacks full participation violated natural law, for it did not result from the consent of the governed. This is Lincolnian in its style.  He appeals to our “ancient faith,” as did Lincoln, but employs it to ground a distinctly modern principle, consent of the governed. It is brilliant and philosophically defensible.

Take care,
Frank

Comment #4423

Posted by Francis J. Beckwith on July 1, 2004 04:48 PM (e) (s)

I’m not sure what to think of this:

“Any possible universe could be explained as the work of some sort of designer. Even a universe that is completely chaotic, without any laws or regularities at all, could be supposed to have been designed by an idiot.”  (Steven Weinberg, Skeptical Inquirer, Sept. 2001).

But isn’t the opposite true as well? Here’s what I mean:

Any possible universe could be explained as the work of some sort of natural mechanism or mechanisms. Even a universe that appears completely designed, with laws or regularities that can be measured and put in the forms of complex mathematics, could be supposed to have been not designed by any mind whatsoever.

So, if both could be true, is Weinberg really saying anything at all? You guys are the experts. I’m just a philosopher with a graduate degree in law. What do I know?

Frank

Comment #4424

Posted by Francis J. Beckwith on July 1, 2004 05:05 PM (e) (s)

Frank

See 4368 where you referred to The Sandman by his given name: “Tim.”  Personally, I think this naming formality carries no weight in the blogosphere unless it’s explicitly set forth as a “rule” by the blog owner.

I know what Mr. Sandefur was writing about.  I just was engaging in a bit of playfulness in my reply.  My wife is right, “Know your audience.”

Frank

Comment #4426

Posted by Great White Wonder on July 1, 2004 05:13 PM (e) (s)

I just was engaging in a bit of playfulness in my reply.  My wife is right, “Know your audience.”

I’m having some intense deja vu here.  Just don’t tell anyone to visit their library, Frank, and I think everything will be all right. ;)

Comment #4429

Posted by Andrew on July 2, 2004 08:44 AM (e) (s)

Dr. Beckwith asks:

——-
But isn’t the opposite true as well? Here’s what I mean:

Any possible universe could be explained as the work of some sort of natural mechanism or mechanisms. Even a universe that appears completely designed, with laws or regularities that can be measured and put in the forms of complex mathematics, could be supposed to have been not designed by any mind whatsoever.
——-

Um, so your argument is that we can detect neither randomness nor design?  Isn’t that an admission that ID is worthless?  If so, we happily agree.

——-
You guys are the experts. I’m just a philosopher with a graduate degree in law. What do I know?
——-

Oddly enough, that’s my exact background as well.

-Andrew

Comment #4432

Posted by Francis J. Beckwith on July 2, 2004 10:13 AM (e) (s)

Andrew writes:

Dr. Beckwith asks:

But isn’t the opposite true as well? Here’s what I mean:

Any possible universe could be explained as the work of some sort of natural mechanism or mechanisms. Even a universe that appears completely designed, with laws or regularities that can be measured and put in the forms of complex mathematics, could be supposed to have been not designed by any mind whatsoever.
——-

Um, so your argument is that we can detect neither randomness nor design?  Isn’t that an admission that ID is worthless?  If so, we happily agree.

I don’t have an argument. It was a question by which I was asking for conceptual clarity. That’s all.

Comment #4434

Posted by Andrew on July 2, 2004 10:46 AM (e) (s)

Okay, then I’ll clarify.  Weinberg’s argument is that it is meaningless to postulate design without attributing specific characteristics to the designer.

I take your response to mean that perhaps it is similarly meaningless to postulate naturalistic processes without attributing specific characteristics to those processes.

If true, then one of two implications would follow.  Either (1) this means that we can neither postulate naturalistic processes nor design — which I’m okay with — or (2) it means that, unlike IDists, scientists can actually attribute specific characteristics to naturalistic processes.  I’m okay with that, too.

Comment #4435

Posted by Chip Poirot on July 2, 2004 10:57 AM (e) (s)

I read with interest both the analysis of the law and especially Ric’s comments.

Firstly, I agreed in part and disagreed in part with the article. And it is an issue I struggle with on an intellectual level. As a college professor who occasionally teaches Cultural Anthropology (I’m an economist by training), I think that learning (correctly) the case for evolution is extremely important. Though i teach at a State Institution many of my students have evangelical/fundamentalist backgrounds. All I have to do is make reference to humans having foraged for over 100,000 years and I can see the walls go up. When I have to confront this issue as a college professor, I prefer to confront it head on-that is talk about the issues directly, honestly and openly. If that means discussing YEC or ID for a few minutes and indicating why i reject them as valid theories, then I’m willing to do that. I also find that it is helpful to indicate to students that they don’t have to **believe** what I tell them, they just have to learn the material and understand why evolution is the only real viable research program and why it is important to understanding a number of debates in Cultural Anthropology and even to grasping the concept of culture.

Under some interpretations of the establishment clause, that much **might** be precluded in a high school science classroom. I say I wrestle with this because I can see many reasons to take such a rigid approach to the high school science classroom. Yet the reality is that presenting evolution is frightening to evangelical and fundamentalist students on many levels and that fear is an obstacle to effective teaching and learning.

Thus for a lot of reasons, I personally would prefer more emphasis on the “exercise” and “free speech” component of the 1st amenmdment and less on the establishment. Don’t misunderstand me-I do not support any form of coerced public religious ceremony.

And so I wonder-why would this not be an effective, workable compromise. We won’t give or require “equal” time but we could allow teachers and/or school districts to discuss the issues, including some of the assumptions and issues about what science is and is not.

I can see reasons why this might not work, but I can also see reasons why it could work, if implemented with great care.

Comment #4436

Posted by steve on July 2, 2004 11:08 AM (e) (s)

I agree, Andrew. What Weinberg was talking about was pretty clear.

  We can tell this toaster was designed by intelligence without knowing the engineer, therefore we can tell the same about natural organisms, IDers say. But something’s missing. You’ve seen engineers. You have a rough idea what their capabilities are. Most importantly, you start from a list in your head of known objects engineers have designed. You aren’t really detecting some ‘design’ quality, you’re detecting similarity to known objects with a certain specific relationship to a known intelligence.
  When you know that a dishwasher, refrigerator, and microwave were designed by a guy, it’s not hard to look at an oven and guess that it too was designed by a guy.
  When you look at a kindergartner’s picture of his mommy, and a picture of his daddy, it’s not hard to look at a picture of a doggy and guess that it’s his.
  You can only do this when you have prior knowledge of the creator/created relationship. And even then, you might be wrong. Maybe the oven was designed by aliens. Maybe the picture was produced by a guy with Down’s Syndrome. The ability to equate created with creator is a heuristic which only works when you have a good understanding of the creator, and examples of the created works, and some other criteria.
  We don’t have definite knowledge of a god. We don’t have examples of worlds god created, vs worlds left to their own devices. And we have an alternate method for producing the supposedly ‘designed’ objects. So natual organisms don’t even meet the criteria of the heuristic. And the heuristic’s not even science. 

 

  How long will it take before IDers realize they’re trying to promote a flawed heuristic to the status of science? And when they do realize it, and jump ship to the next god-proving scientific-sounding notion, will any of them realize they’re in search of evidence to confirm their religious beliefs, a bass-ackward way to act?

Comment #4437

Posted by Andrew on July 2, 2004 11:25 AM (e) (s)

IDers could at least construct a valid inference if they would be up front about the identity of their Designer.  Then, they could describe his attributes with specificity from scripture (I guess — I’ll leave that to the theologians), and go search for evidences of his creation.

Comment #4438

Posted by FL on July 2, 2004 12:03 PM (e) (s)

As always, some interesting comments…

Francis Beckwith has already taken care of the side question regarding MLK and Christian involvement in the Civil Rights movement, imo.  Having read MLK’s “Letter from a Birmingham Jail” myself, Beckwith’s comments again make much sense.  (And while I cannot speak for the predominately black church I attend, I strongly suspect it would make sense to them too.)

Anyway, on the question of the previously quoted 3-point ID hypothesis being “inherently religious” or not, some folks seem to be claiming that Point #3 is inherently religious:

“Intelligent causation best explains specified complexity.”

Among those claimants, Frank Schmidt invokes Elliot Sober for backup:

I commend to you Elliot Sober’s excellent essay “How not to detect design” (available on both his website and reprinted in Pennock’s Intelligent Design Creationism and its Critics.)

Here and elsewhere he points out that all judgments about design are made with reference to known designers.  So while we can scientifically infer the existence of designers for analogues of design processes we know (e.g. in anthropology), there is no independent evidence for a designer for Biology, because the process is unobserved.

Now honestly, I don’t think that shows that Point #3 is “inherently religious” at all.  But it’s still worthwhile to take Schmidt’s advice and look at Sober’s position.  Is Sober correct or is he incorrect, concerning this matter?

Since I have a copy of Pennock’s book, I went back and looked at Sober’s essay.  And since I have a copy of Dembski’s No Free Lunch and The Design Revolution, I looked at Dembski’s responses to Sober’s position.

No way to get all the stuff from both of Dembski’s books in here, but maybe the following extended snippet will be helpful:

The fact is that we infer design repeatedly and reliably without knowing characteristics of the designer or being able to assess what a designer is likely to do.  Humeans in their weaker moments admit as much. 

Take Elliott Sober.  Before he permits intelligent design into biology, he wants to know the characteristics of the designer, the independent evidence for the existence of and what sorts of biological systems we should expect from such a designer.  According to Sober, if the design theorist cannot answer these questions, then intelligent design is untestable and therefore unfruitful for science. 

Yet in a footnote that deserves to be part of his main text, Sober admits,
“To infer watchmaker from watch, you needn’t know exactly what the watchmaker had in mind; indeed, you don’t even have to know that the watch is a device for measuring time.  Archaeologists sometimes unearth tools of unknown function, but still reasonably draw the inference that these things are, in fact, ~tools~.”
(Testability”, 1999 presidential address to the American Philosophical Association.)

Because he is wedded to the Humean inductive tradition, Sober views all our knowledge of the world as an extrapolation from past experience.  Thus for design to be explanatory, it must fit our preconceptions, and if it does not, it must lack empirical justification.  For Sober, to predict what a designer would do  requires first looking to past experience and determining what designers in the past have actually done. 

And yet his comment about watchmakers and watches belies such a view, for he admits that we could know that watches were designed even if we knew nothing about watchmakers  and that mysterious tools were designed even if we knew nothing about the toolmakers or or even the precise function of the tools.

Within the Humean inductive tradition, designers are in the same boat as natural laws, with their explanatory power located in an extrapolation from past experience.  To be sure, designers, like natural laws, can behave predictably.  (Designers often institute policies that other designers then dutifully obey).  Yet unlike natural, which are universal and uniform, designers are also innovators.  Innovation, the emergence of true novelty, eschews predictability.  It therefore follows that design cannot be subsumed within a Humean inductive framework.  Designers are inventors.  We cannot predict what an inventor would do short of becoming that inventor.

But the problem goes deeper.  Not only can’t Humean induction tame the unpredictability inherent in design, but it can’t account for how we recognize design in the first place.

Sober, for instance, regards the design hypothesis for biology as fruitless and untestable because it fails to confer an ascertainable probability on biologically interesting propositions. 

But take a different example, say from archeology, in which a design hypothesis about certain aborigines predicts certain artifacts, say arrowheads.  Such a design hypothesis would, on Sober’s account, be testable and thus acceptable.  But what sort of archeological background knowledge had to go into that design hypothesis to make it a successful predictor of arrowheads?  At the very least, we would need past experience with arrowheads.

But how did we recognize that the arrowheads in our past experience were designed?  Did we see humans actually manufacture those arrowheads?  If so, how did we recognize that these humans were acting deliberately as design agents and were not just randomly chipping away at random chunks of rock?
(Carpentry and sculpting entail design, but whittling and chipping, though performed by intelligent agents, do not.)

As is evident from this line of reasoning, the induction needed to recognize design can never get started.  Our ability to recognize design must therefore arise independently of induction and thus, independently of a Humean inductive framework.

This was precisely (Thomas) Reid’s point, and in making it, he demolished once and for all Humean induction as applied to design…

(Dembski, The Design Revolution, c2004 Intervarsity Press, pp 227-29.)

I apologize for being lengthy; I just wanted to make sure this was put on the table in regards to Sober’s position as mentioned in Frank Schmidt’s post.

Now this isn’t everything, of course.  Both Sober and Dembski have had a lot to say (or read).  But Sober never actually asserts
Dembski’s ID hypothesis is “inherently religious.”  (Or at least he doesn’t in the “How Not To” article.)
What Sober DOES claim, of course, is that it is “deeply flawed” and that neither evolutionists nor creationists should adopt Dembski’s epistemological framework. 

So, even if there were NO problems with Sober’s position whatsoever, I’d have to suggest that the “inherently religious” aspect that I asked to be shown, has not been shown yet, at least not by Sober.

But as you’ve seen, there ARE indeed problems with Sober’s position, which Dembski has explained in quite a bit of detail in NFL and TDR, so as Frank Schmidt indicated, it don’t look like I’ll be in any hurry to buy into Sober after all.

Btw, if you want to see if ID is “inherently religious” in terms of the Constitution and the courts, there’s no better place to go, imo, than Chapter Four of Francis Beckwith’s book Law, Darwinism and Public Education.

FL

Comment #4439

Posted by Francis J. Beckwith on July 2, 2004 12:34 PM (e) (s)

Helen Keller never saw an engineer. I guess for her there were no toasters. :-)

I hate to be picky, but technically none of us has actually seen an engineer. What you’ve seen is a body from whose actions you infer an engineer exists. Given the speed of light nobody has immediate apprehension of physical objects, let alone engineers. And besides that all you see are images of bodies and their actions from which you draw an inference to agency. 

Here’s a thought experiment that all this has inspired. Let’s suppose that the world is populated with unconscious robots that are made by an engineer nobody in the world has ever seen. Suppose that you are the only real person in the world.  In fact, the entire world was created as a ruse to make you think that there are billions of others. But alas, there are not. You are it, but you do not know, yet. Some of the robots are programmed to behave and act like what you’ve been taught are engineers. You own a toaster and you think you are warranted in believing that it was built by an agent who happens to be an engineer. But actually the toaster was built by a robot who is not an agent, but a pre-programmed automaton made to look like and act like he is an agent. Suppose, by accident, one of the robots trips and falls and he “cuts” himself and you begin to get suspicious given the wires and circuits you see under his “skin”. Over a decade you come to the conclusion, after careful and detailed investigation, that you are the only conscious personal organism on earth.  Would you be justified in inferring a robot-maker—a super,duper engineer—even if you have never seen one?

Comment #4440

Posted by Frank Schmidt on July 2, 2004 01:05 PM (e) (s)

FJB’s argument is basically that it’s impossible to rule out any solipsistic construction of the Universe. (Bertrand Russell once wrote that he got a letter from a lady who claimed she was a solipsist and wondered why there were no others :). It’s irrelevant to the discussion, and to human action. We don’t act as if there were no other minds, any more than if there were no gravity.

We are discussing science here, no? This is one of the things that scientists find frustrating about philosophy,IDCists such as Beckwith and his ilk in particular. They have no data. Instead they construct arguments that can’t be refuted but can’t be tested scientifically either. Science is a data-driven process, and cannot succeed in the absence of data. So the question is, what is/are data?

Data is defined as “factual information (as measurements or statistics) used as a basis for reasoning, discussion or calculation” in my version of Webster’s. Note that calculation itself (see Dembski) or reasoning itself (see philosophers) are not data.

And finally, in regard to my point about Martin Luther King, it’s nice that he recognizes the problem,

You’re right, some conservatives jump on the King bandwagon when in fact they probably would have resisted him if they were alive at the time.

To which I add, many of them were alive at the time, and did. Including Charlton Heston about the War, as I recall.

Comment #4441

Posted by Timothy Sandefur on July 2, 2004 01:18 PM (e) (s)

Chip Poirot writes

When I have to confront this issue as a college professor, I prefer to confront it head on—that is talk about the issues directly, honestly and openly. If that means discussing [Young-Earth Creationism] or ID for a few minutes and indicating why [ I] reject them as valid theories, then I’m willing to do that. I also find that it is helpful to indicate to students that they don’t have to believe what I tell them, they just have to learn the material and understand why evolution is the only real viable research program and why it is important to understanding a number of debates in Cultural Anthropology and even to grasping the concept of culture. Under some interpretations of the establishment clause, that much might be precluded in a high school science classroom.

Not so—or at least, not under any correct understanding of the Establishment Clause. The Establishment Clause only prohibits the state from taking an official position on a religious issue which would amount to “an establishment of religion.” It does not prohibit the state from teaching students the facts of science under any circumstances, and that is especially true where a teacher includes the sort of disclaimer that Prof. Poirot mentioned. (In fact, the disclaimer itself is much more troublesome as far as the Establishment Clause is concerned. See, e.g., Tangipahoa Parish Bd. of Ed. v. Freiler, 185 F.3d 337 (5th Cir. 1999) cert. denied, 120 S.Ct. 2706 (2000).

It is true that “presenting evolution is frightening to evangelical and fundamentalist students on many levels….” I’m not very sensitive to this concern, because my reaction is “get over it.” But I understand that this is the case, and that “get over it” isn’t a helpful way of teaching—that’s why I’m not a teacher.

Interestingly, Prof. Poirot says “I personally would prefer more emphasis on the ‘exercise’ and ‘free speech’ component of the 1st amendment and less on the establishment.” I actually agree. Free exercise and free speech are more interesting because, among other things, they actually protect individual rights. Establishment may not protect individual rights—a discussion I and Jonathan Rowe have been having for a while now. Establishment Clause law is also more complicated and often more subjective than Free Exercise and Free Speech law. And in the age of the regulatory welfare state, that complication is even worse. It is practically impossible to consistently abide by the Establishment Clause today, because of the vast (and unconstitutional) extent to which government controls our lives. If the government were to operate within the scope that the Constitution actually conceives, we would have far fewer Establishment Clause problems to begin with, and we wouldn’t have the problem with cases like Smith. I mean, the problem with Smith is that Christians think it’s unfair that a law that, in effect, deprives them of religious freedom isn’t unconstitutional so long as it was passed for some other neutral criterion. So, under Smith, as Garry correctly notes in his article, a law which prohibited all alcohol consumption could be enforced to shut down the Eucharist, and the Court would do nothing about that. That’s a serious problem, I think. But it’s a problem that ought to be handled by returning government to its Constitutional limits, not by coming up with ever-more-complicated First Amendment caselaw.

In short, there is no way to run a government education system that won’t violate people’s constitutional rights. But because we insist on having government education systems, we’re stuck with it.

Comment #4445

Posted by Great White Wonder on July 2, 2004 01:49 PM (e) (s)

In short, there is no way to run a government education system that won’t violate people’s constitutional rights.”

So, please refresh me: where does the constitutional “right” of parents to prevent their kids from learning science come from, Mister Sandefur?  The “right” of adults to brainwash or otherwise control the facts their children are exposed to (particularly when the child can read) seems much more suspect to me than the desirability of a federally funded education system.  It appears to me that, as time has passed in this country, the rights of young people have been continually eroded while the rights of parents to control their children’s behavior and thoughts has grown.

Oh, and Francis: I think in your scenario one rational conclusion is that I designed the robots, and the robot builders, and then I took a pill (which I also designed) which erased my memory, except for a few selective thoughts such as the memory of being taught what an engineer is and how to operate a toaster.

Comment #4446

Posted by Ian Menzies on July 2, 2004 01:53 PM