Law review follies (part 4,242,535) [Updated]

Posted by Timothy Sandefur on January 4, 2005 03:08 AM

The Spring 2004 issue of the Louisiana Law Review contains an article about the evolution/creationism controversy: Arianne Ellerbe, We Didn't Start The Fire: The Origins Science Battle Rages on More Than 75 Years After Scopes, 64 La. L. Rev. 589 (2004). (Sorry, it's not on line.) Ellerbe, a summa cum laude graduate of LSU, has received awards for her youth-ministry work, and helps run Refined By Fire Ministries. Her article, however, demonstrates significant misunderstandings of the legal issues surrounding the religion clauses of the First Amendment in general, and evolution education specifically.

Small flaws at the beginning of her article hint at the massive errors to follow: she says that "[t]he Scopes trial serves as a central event for the fundamentalist-modernist controversy, pitting the American Civil Liberties Union against Christian church leaders and scholars." Id. at 589. If Ellerbe is referring to Scopes as a historical matter, this is probably true, but her phrasing suggests that today's evolution controversy is one raging between the ACLU and "Christian church leaders and scholars," which ignores the complicated landscape of opinion on the subject, and the fact that many Christian church leaders and scholars have no qualms with evolution.

She claims that "[r]ecent legal battles" over the separation of church and state "include Newdow v. United States Congress. . .which involves whether the speaking of the phrase ‘under God' in the Pledge of Allegiance in public schools serves to violate the Establishment Clause of the First Amendment." Id. at 589. But this is a mischaracterization of the question in Newdow. Among the questions in that case was whether Congress' addition of the phrase "under God" to the Pledge in the 1950s violates the Establishment Clause (which states "Congress shall make no law respecting an establishment of religion. . .") Nobody--not Dr. Newdow, not the defendants, not the amici--ever argued that "speaking. . .the phrase ‘under God'" is a violation of the law. Any person in America is free to use that phrase at any time, in any classroom or any other place in this country, regardless of the decisions in the Newdow case.*

Then Ellerbe says that there is "a continuous battle over the ‘separation of church and state,' a concept Thomas Jefferson first articulated in his letter on the First Amendment. . .." Id. at 589. In fact, while Jefferson's letter to the Danbury Baptists is the most famous source for this quotation, the concept of separation of church and state is much older, and dates back at least to the seventeenth century, when the great Christian libertarian John Milton used a similar phrase in his Second Defence of the English People. See also Bernard Bailyn, The Ideological Origins of The American Revolution 246-272 (Cambridge: Harvard University Press 1976) (1967) (detailing long history and wide popularity of disestablishmentarianism in American colonies). This problem will crop up again later in the article.

That all of these errors occur on the first page of Ellerbe's article bodes ill for the rest. Her main thesis is that "[t]he objectives of the American education system and Supreme Court jurisprudence leave the door open for the teaching of competing origins theories within the confines of the Constitution if certain criteria are met." Id. at 590.

To prove this thesis, she seems willing to go to any lengths. In fact, she never does name the "criteria" specifically. Instead she begins by first citing several cases which have held that government schools may use the Bible or other religious items in a curriculum, so long as they are not being used to teach students that a religious view is true. Students may be taught, for instance, about the culture of the Middle East, and discussions of Islam may play a legitimate role in such lessons. Students may be taught about the history of music, and Handel's Messiah can be part of an assignment. But government schools may not be used to teach children that a particular religion is the truth. Thus, Ellerbe concludes, "study of a concept related to religion would be deemed constitutionally acceptable in an appropriate subject matter context." Id. at 597. Second, Ellerbe argues that the term "science" should be defined, not by reference to the scientific method or other epistemological considerations like falsifiability, but rather by "look[ing] to whether a theory is true or warranted by the evidence. . .. [S]cientific legitimacy is best tested using the weight and reliability of empirical research supporting the evidence for the theory." Id. at 594. This definition "would accept as science a broad range of theories that are supported by extensive research and empirical evidence, including competing theories of origins science that are backed up by legitimate evidence." Id.

Ellerbe concludes from these two premises that "[i]f one accepts [her] definition[ ] of science...discussion of alternative origins theories may be equally appropriate in a science classroom as well as in a philosophy course." Id. at 597.

It's hard to know what to say to this rather banal conclusion. It is of course true that a science teacher may teach students that, in the olden days, people thought that the earth was at the center of a universe whose gears were being wound by the angels. Nobody--not even the ACLU--argues that science teachers may not teach students that at one time people believed in creation stories. The law has never prohibited teachers from using religious material for secular purposes, such as teaching "the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education," Epperson v. Arkansas, 393 U.S. 97, 106 (1968). Nor has anyone ever suggested that the law forbids schools from teaching things that are "supported by extensive research and empirical evidence, including competing theories of origins science that are backed up by legitimate evidence." Ellerbe, supra, at 594. In fact, government schools can (unfortunately) legally teach theories that are not supported by extensive research, or any evidence at all.

But Ellerbe is reaching for something more. She wants government schools to be free to teach an "alternative origins theory," (meaning of course, a religious explanation for the origin of species) as being true. The Supreme Court, she notes, has never "held that schools are not justified in exposing students to multiple origins theories, yet [its] holdings appear to emphasize the importance of avoiding endorsement of any particular theory in teaching such alternatives." Id. at 605. Appear to? In fact, the Court is quite explicit on this point. While a government teacher may tell a student any number of things--including false things, unfortunately--he may not tell a student that a particular religious claim is either true or false. Under the First Amendment, and repeated, crystal clear holdings by the Supreme Court, a teacher may tell the the student the history and context of a religious truth claim; he may tell the student how many people believe in it; he may tell the student that he personally believes it or thinks it's poppycock. But he may not tell the student that a religious claim is true or false. Why? Because the government may not establish religion. "Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family." Edwards v. Aguillard, 482 U.S. 578, 584 (1987).

Ellerbe is wrong, therefore, when she claims that all "alternative origins theories" can be taught as true in government classrooms. Supra at 605. In fact, there is only one particular type of origin theory which may not be taught as true in a government classroom: that is, the religious type of origin theory.

It is at this point, when we are ready to hear Ellerbe's explanation of why "Supreme Court jurisprudence...[allows] the teaching of [religious] origins theories [as being true] within the confines of the Constitution," id. at 590, that we discover that instead she wants to change those confines, through a direct attack on the separation of church and state: "[F]or courts to require that all state action avoid either promoting or inhibiting religion proves particularly problematic with respect to the origins science controversy," she begins. Id. at 605.

For instance, many of the teachings and activities in America's public school system relate to various religious doctrines as much if not more than does origins science instruction. The concepts of truth telling as well as respect for others and their property, not to mention the celebration of various holidays, not only form the foundation of our country but also originate from religious ideals. To prohibit any teaching or activity in the public school system that might in any way move students toward religious beliefs would require schools to eliminate all character-based teachings and rules and to cease any activity that may shed a positive light on any faith. Such a requirement would certainly aid our schools in their present downward spiral of violence and apathy. Exposing students to multiple theories regarding the origin of life without requiring them to accept one in particular as universal truth does not endorse adherence to a religious faith at any greater level than does requiring that students tell the truth, punishing students who refuse to respect authority, or hosting a Christmas-themed musical.

Id. at 605-06.

There are any number of things to object to in this paragraph. For one thing, while some Establishment Clause cases have gone too far in my opinion, the fact is that nothing in the cases or in the Establishment Clause requires teachers to eliminate character-directed education. (In fact, as I have pointed out before, attempts to educate children on matters of character have often aroused the ire of Christian conservatives, who object to even attempting to teach children virtues on a non-sectarian basis!) Second, it is simply not true that "the concept of truth telling" and other virtues "originate from religious ideals." I and many other atheists of a wide variety of philosophical affiliations, adhere to moral principles, including truth-telling. (Daniel Dennett even provides an evolutionary explanation for the origin of truth telling in Freedom Evolves (2003).)

But more to the point, this paragraph reveals that Ellerbe's attempt to prove that "alternative," "scientifically valid," non-evolutionary "origins theories" can be taught in a classroom "as part of a secular program of education," id. at 597, is in reality an argument in favor of direct religious instruction in government classrooms. Now, there are many problems with religious instruction in government classrooms--Thomas Jefferson, James Madison, and others who won the battle to separate religion from government explained many of these reasons in their great writings. Their opponents would have made precisely the same arguments--and did make precisely the same arguments. Abolish the state-run church, they said, and you would have chaos and the death of religion. The fact of the matter is, as Alexis de Tocqueville pointed out, that religion has flourished in the United States in large part thanks to the separation of church and state. A full defense of the separation of church and state is beyond my ability in a blog post; but perhaps we can refer to the United States Supreme Court, which said in 1878,

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. . .. In the preamble of [the Statute for Virginia for Religious Freedom] religious freedom is defined; and after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the church and what to the State. . ..

[A]t the first session of the first Congress the [First] amendment. . .met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards. . .took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,--I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. . .." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.

Reynolds v. United States, 98 U.S. (8 Otto) 145, 162-64 (1878). For Ellerbe, however, the separation of church and state is not a vital tradition of a free society, with a long and glorious history behind it. Rather, it's been "read into the Establishment Clause" by the Supreme Court, id. at 611, so as to accommodate the fact that the "composition of American society has changed drastically in over 200 years." Id. at 595. This drastic change "has led the courts to interpret the Establishment Clause through the lens of a diverse population and modernized world view." Id. These twos sentences appear to be the full extent of Ellerbe's familiarity with the tradition and justification of separating church and state.

Ellerbe's characterization of the separation of church and state--like her knee-jerk characterization of the ACLU--betrays a prejudiced notion that you are either with us or against us, as well as an exaggerated assumption that those opposed to teaching religion in schools are seeking to squash "any activity that may shed a positive light on any faith" or to prohibit teaching something "that might in any way move students toward religious beliefs." In fact, that is not the concern of defenders of evolution, or of defenders of the separation of church and state (which, I hasten to repeat, includes many religious folks). If a student reads a class assignment, and is moved by it to investigate a faith on his own, and ultimately decides to adopt that faith, that is entirely his own concern, and defenders of the separation of church and state have no objection to such a thing. The problem arises when the government taxes a Catholic to teach Protestantism, or teaches a student who is an atheist that God created the world.

There are many other flaws in the article, which I'll pass over (except for one more; one that always irritates me more than it ought to: modern evolutionary science, she says, originated with "Charles Darwin, who published ‘Origin of the Species' in 1859." Id. at 591. No. The book is Origin of Species, not Origin of The Species. This error is typical of people who are not well versed in the science of evolution and assume that the book discusses human evolution. In fact, the book mentions human evolution only in its final sentence). I will just say that it is unfortunate that an obviously accomplished law student would write, and the Louisiana Law Review would publish, an article so riddled with mischaracterizations, baseless assumptions, and apparent ignorance of the fundamentals of this debate.

Ellerbe concludes on an unintentionally ironic note. "While theories posed as alternatives or complements to evolution are currently labeled rogue or superstitious," she writes, "through classroom discussion and experimentation, they may either be proven sound or soundly defeated. Many highly-praised scientific discoveries began in the scientist's imagination as an idea and only later became accepted after trial and error, observation, and extensive testing." Id at 609. Quite so. If the ID creationists ever come forth with a testable hypothesis, or experiment, so that ID can either be proven sound or soundly defeated, maybe then it will have some respectability as an enterprise on an equal footing with real science. In the meantime, however, it remains an entirely religious endeavor, and as such it belongs in a church, or in a private classroom, but not in classrooms paid for by my tax dollars.

Update: As luck would have it, Judge Bauer of the Seventh Circuit issued a dissent today that puts the case for the separation of church and state rather eloquently:

The admonition of the Constitution that creates the separation of church and state forbids any government entity from endorsing, or seeming to endorse, religion but does not at all prevent individual members who make up a government entity from practicing or loudly announcing their deep religious convictions. They can place displays on their private property, put religious symbols on the bumper stickers of their cars, wear religious symbols on their clothing, and even, by living up to the admonitions of the commandments in their personal and political lives show, by their example, their deep commitment to the religion of their choice. What they cannot do is, by word or action, spend public money endorsing or seeming to endorse on behalf of the government agency they represent, an endorsement of any religion.... [A]s I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, "Render unto Caesar the things that are Caesar's and to God the things that are God's." Neither God nor religion requires an endorsement from Government--nor does the law permit it.


*--Full disclosure: the Pacific Legal Foundation, where I am employed, filed an amicus brief against Newdow in this case. My posts on Panda's Thumb in no way represent the views of the staff, supporters, or clients of the Pacific Legal Foundation.

Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.cgi/704

Comment #12646

Posted by Flint on January 4, 2005 01:52 PM (e) (s)

I will just say that it is unfortunate that an obviously accomplished law student would write, and the Louisiana Law Review would publish, an article so riddled with mischaracterizations, baseless assumptions, and apparent ignorance of the fundamentals of this debate.

But it’s not very surprising, is it? I’m willing to speculate that both Ellerbe and the LLR regard evolution as a false religious doctrine per se. This being the case, it must be permissible to teach religious doctrines as truth. Neither Ellerbe nor the LLR have the slightest doubt what the truth is, so it must be scientific. After all, isn’t science the pursuit of truth?

Not to mention that telling the truth is religious, respecting property rights is religions, and so are building character and celebrating holidays and, golly, just about everything that’s right and worthy! Why should origins be any different? Science requires evidence? Well, what do you suppose the bible IS, if not evidence? Doh! It’s the word of God Himself!

Anyway, legal arguments always seem problematic to the outsider. It’s like the (probably apocryphal) story wherein a robber baron called in his lawyer and asked him for a legal way to get what he wanted. The lawyer said “But sir, what you are asking is illegal!” And the robber baron replied, “I didn’t ask if it were legal. I asked for a legal way to DO it.” Ellerbe isn’t concerned with whether teaching her religious doctrine as truth in public schools is legal, she is searching for a legal way to DO it. And the LLR surely published it because they share the same desire. Schools (in their view) are teaching our children *wrong doctrine* and claiming it’s science. The situation is desperate.

Comment #12648

Posted by Reed A. Cartwright on January 4, 2005 02:17 PM (e) (s)

I’ve been thinking about potential legal arguments about the constiutionality of teaching “intelligent design” creationism in public school science class.  I would argue that if something is genuinely scientific, it can be taught because science is inheriently non-sectarian.  However, this is the exact property of science that “intelligent design” advocates and activists routinely complain about, which establishes to me that not only are they not scientific, but inheriently sectarian and thus not suitable for public school classrooms.

Comment #12651

Posted by TonyB on January 4, 2005 02:38 PM (e) (s)

When a California state senator, on whose staff I was privileged to serve, held hearings in 1980 on character education in public schools, this was interpreted by many (on both left and right) as an opening through which sectarian beliefs could be smuggled into the classroom. We frequently heard the claim that one could not have morals without also embracing a specific religious framework for them (for which read “conservative Christianity”). It’s a good thing we didn’t try to talk about evolution at the same time.

Perhaps it’s appropriate that on Christmas Day I read a letter to the editor in my hometown newspaper, the Porterville Recorder, in which a student at Cal State Fresno (my alma mater) explained that atheism is incompatible with morality and that this had been taught to him by his Fresno State profs. (I have my doubts about that last part.) Moved by the spirit of the season, I wrote a response citing Luke 18, wherein the believer is cautioned not to beat his breast in public like the vain Pharisee, but I doubt it will do any good.

Comment #12652

Posted by Flint on January 4, 2005 02:43 PM (e) (s)

Reed:

Yes, I think there’s no debate that if the ID people could clearly define what is and is not ID, suggest some tests to identify and distinguish actual examples, and experimentally support the claim that what is defined as ID is qualitatively different from “natural” or “undesigned” or whatever, and demonstrate some evidence of design, then (after the usual gestation period of peer review and replication), the competing claims would graduate to something presentable in science class, *even though* they are sectarian. In brief, if some religious faith turns out to be right according to traditional scientific investigation, then it is eligible for science curricula as a scientific truth, which is to say, tentative and subject to change any time.

Comment #12656

Posted by Ed Darrell on January 4, 2005 04:16 PM (e) (s)

So, Tim, when is your law review article giving the facts going to appear?  And where?

Comment #12658

Posted by John R. on January 4, 2005 05:06 PM (e) (s)

Before the significance of the LLR article is elevated disproportionately, please keep in mind that it represents nothing more than the opinion or argument of one law student.

What some readers of this blog may not appreciate is that a “Law Review” should not be equated with a peer-reviewed scientific journal.  A law review is a student-edited journal, and it rarely speaks with anything approaching a single editorial voice.  The opinions are those of the authors, not the editors.

For example, in the same issue of the Louisiana Law Review may be found various articles investigating the legal and sociological implications of cohabitation, supporting gay rights and same-sex marriage, discussing the history of habeas corpus, comparing the laws governing human remains in formerly colonial countries, and discussing the rights of transsexuals in Europe and the United States.  Hardly a hotbed of right-wing conservatism.

Whatever else one makes of Ms. Ellerbe’s Comment, it should be recognized as the opinion of one law student.

Nothing more.

Comment #12659

Posted by Timothy Sandefur on January 4, 2005 05:15 PM (e) (s)

John R. is correct, of course. Few law reviews are peer edited. Recently, Judge Posner complained that the law review world is really just mass self-publishing. Still, some law reviews are better than others, and some law reviews take care to publish only serious scholarship, and law reviews tend to have faculty oversight which would weed out the worst work. So I think it’s still a shame that something so extraordinarily bad as this article would be published.

Mr. Darrell: I’m working on something, but it will be a while yet.

Comment #12668

Posted by ACW on January 4, 2005 06:49 PM (e) (s)

Something has been troubling me about the theory underlying First Amendment jurisprudence; I think I know what the answer must be, but I am no lawyer, and have no idea how to build a defence for that answer.

Mr. Sandefur wrote:

While a government teacher may tell a student any number of things—including false things, unfortunately—he may not tell a student that a particular religious claim is either true or false.

Here is my concern: what happens when a  proposition P is both (a) regarded as true by a consensus of scientific opinion, and (b) an article of doctrine of some religion, and thus a religious claim?  Flint, above at #12652, presents the obvious common-sense answer that condition (a) trumps condition (b), but he is no lawyer either and provides no precedent for this claim.  Is it not possible that condition (b) trumps condition (a), in which case the religious claim P could not be presented as truth in government-funded schools, no matter how convincing the evidence in its favor is?

Well, OK, I agree that it’s not possible.  It can’t be the case that (b) trumps (a).  If it were, then all the creationists would have to do to get Darwinist evolutionary theory out of public schools would be to create a sham religion which espoused the theory they so hate.

(This takes me on a digression, alas: how does our tradition of First Amendment jurisprudence defend the public interest against individuals committing otherwise illegal acts and trying to take shelter behind sham religions?  Suppose I defend my refusal to stop at stop-signs on the basis of the Book of Jebus, chapter 6, verse 8: But ordinances displayed upon octogons thou needest not obey, for eight-sided is the Shield of Satan, and his ordinances are not binding to thee.  Clearly this kind of defense does not go, as many generations of tax protestors have found to their cost.  But why doesn’t it go?  Whence does the government derive its authority to separate fake religions from real ones?)

Back from that digression, my real question is: where is the paper trail that establishes that a scientific truth may be taught, regardless of whether it also happens to be religious dogma?  I would, of course, especially appreciate responses from actual legal scholars.  Thank you.

Comment #12673

Posted by Timothy Sandefur on January 4, 2005 07:26 PM (e) (s)

I doubt that ACW’s first question has ever been put quite that way in a court of law, but it seems that he’s asking about what’s often called “accomodationism,” which is the theory that the Free Exercise Clause of the First Amendment requires government to make certain exceptions in favor of people whose exercise of religion would be unduly burdened by certain government acts.

For example, in Sherbert v. Verner, 374 U.S. 398 (1963), the plaintiff was denied unemployment compensation when it was discovered that she refused to work on Saturdays. Unemployment compensation rules required a person to make certain attempts at employment, so she was denied compensation on the grounds that she wasn’t really trying to keep a job. She argued that, as a Seventh-Day Adventist, she was forbidden to work on Saturdays, and therefore that this unemployment compensation rule violated her right to Free Exercise. The Supreme Court agreed.

Now, more recently, the Court reversed course (although, in a perplexing move, it refused to actually overrule Sherbert), and held, in Employment Division v. Smith, 494 U.S. 872 (1990), that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879 (citation omitted). In that case, a guy was denied unemployment compensation after he was fired for using an illegal drug (peyote), which he used for religious reasons. The Court said that, so long as a law is not a pretextual attempt to interfere with someone’s freedom of religion, that he can’t get out of the law just because it interferes with his religious beliefs. The reason was that Sherbert’s accomodation rationale would allow a person to get out of a law by claiming that it violated his religious beliefs. See id. at 885 (“To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs…permitting him, by virtue of his beliefs, to become a law unto himself…contradicts both constitutional tradition and common sense.” (citation omitted)).

This, of course, answers ACW’s second question, and comes as close as I can think of to answering his first question, of whether a neutral law with legitimate secular criteria could be invalidated because it happens to coincide with a religious belief. Indeed, in many cases, the Court has repeatedly held that, just because a government act happens to benefit religion does not mean it violates the Establishment Clause, so long as there are valid, secular reasons for that government act. See Agostini v. Felton, 521 U.S. 203, 244-45 (1997) (citing examples). This, as ACW points out, is the only idea workable within a rule of law!

Comment #12677

Posted by Francis J. Beckwith on January 4, 2005 08:32 PM (e) (s)

[A]s I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, “Render unto Caesar the things that are Caesar’s and to God the things that are God’s.” Neither God nor religion requires an endorsement from Government—nor does the law permit it.

Jesus is endorsed as a persuasive authority by a unit of the judicial branch of government in order to show that “neither God nor religiom requires endorsement from Government—nor does the law permit it.”  It’s like the time one of my students told me that she would not answer any hypothetical questions, to which I responded, “Are you saying that if I were to ask you a hypothetical question, you wouldn’t answer it?”, and she answered “yes.”  Classic.

FJB

Comment #12681

Posted by Francis J. Beckwith on January 4, 2005 08:42 PM (e) (s)

[A]s I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, “Render unto Caesar the things that are Caesar’s and to God the things that are God’s.” Neither God nor religion requires an endorsement from Government—nor does the law permit it.

Jesus is endorsed as a persuasive authority by a unit of the judicial branch of government in order to show that “neither God nor religiom requires endorsement from Government—nor does the law permit it.”  It’s like the time one of my students told me that she would not answer any hypothetical questions, to which I responded, “Are you saying that if I were to ask you a hypothetical question, you wouldn’t answer it?”, and she answered “yes.”  Classic.

FJB

Comment #12687

Posted by Ralph Jones on January 4, 2005 09:47 PM (e) (s)

In answer to ACW: Teach the conclusions of scientists in science classes. Teach the beliefs of religionists in comparative religion classes. Students believe whatever they conclude. Education is not indoctrination. Quite the opposite. At its best, it develops the critical thinking skills that defend against propganda.

Comment #12688

Posted by Great White Wonder on January 4, 2005 09:54 PM (e) (s)

At its best, it develops the critical thinking skills that defend against propganda.

But is propoganda utilized to defeat amoral values necessarily a bad thing??  Teach the controversy!!!!

Comment #12689

Posted by Ed Darrell on January 4, 2005 09:56 PM (e) (s)

Dr. Beckwith fails to note the judge’s use of the authority of the opponent in opposition to the opponent’s case.  The Judge has made a hostile witness out of the scriptures.

That’s not exactly “citing as authority.” 

It’s also known as “exposing hypocrisy.”

I suppose that’s too simplistic for graduate level philosophers, but it carries weight among us simple Bible students.

Comment #12691

Posted by grubstreet on January 4, 2005 10:09 PM (e) (s)

On the subject of law reviews: The Tennessee Law Review is putting out a special issue on the topic of “Who Wrote Shakespeare?,” with contributions primarily from so-called Oxfordians (people who believe the Earl of Oxford wrote Shakespeare, despite minor glitches in the evidence such as Oxford’s death in 1604, before about half the plays were written).  This debate is to Shakespeare studies what ID is to biology.  This publication is already being touted as some sort of academic watershed lending credibility to these arguments.

Comment #12692

Posted by Ed Darrell on January 4, 2005 10:10 PM (e) (s)

Without looking to be certain, I would suggest ACW’s question may be answered in Judge Overton’s decision in McLean v. Arkansas.  My recollection is that the arguments in the Arkansas legislature, and by the Arkansas attorney general, were first that creationism was science, and second, that evolution was taken on faith, like religion, and so a belief of a few Christians in creationism was “as scientific” as a “belief” of scientists in evolution.  Overton’s decision includes lengthy discussion of what is science and what is not. 

In the end, Overton noted that there was no science backing creationism, based on the admissions of each and every creationist witness in the case.  Each was asked two questions, generally, whether they knew of science that backed creationism, and from where they thought creationism sprang.  Each answered they knew of no science, and each answered that creationism was based on a particular (or peculiar) religious interpretation of Genesis.

Had there been solid scientific evidence in favor of creationism as science, Overton suggests implicitly at least that he would have ruled in favor of a law requiring its teaching with evolution. 

Several religions believe in the efficacy of medical care by professionals (who rely on naturalism in their diagnoses and treatments of disease and trauma).  Here in Dallas we have hospitals operated by Methodists and Presbyterians, by Baptist universities and Catholic institutions.  Mormons formerly operated dozens of hospitals throughout the Mountain West.  I doubt that any judge would rule germ theory of disease, or circulation of the blood, or setting of bones, or methods of surgery, to violate the establishment clause, simply because most Christians also endorse those processes and have faith in their healing properties. 

I think it’s also important to note that Congress passed a law effectively nullifying parts of Smith, allowing and licensing the religious use of peyote.  My old boss, Orrin Hatch, was one of the principal advocates of the law — based on his appreciation, as a Mormon, for the preferable state of having government stay out of religious affairs wherever feasible.  (Hatch is not a user of peyote — Latter-day Saints oppose such use of hallucinogens.)

Comment #12693

Posted by Francis J. Beckwith on January 4, 2005 10:17 PM (e) (s)

Ed wrote:

I suppose that’s too simplistic for graduate level philosophers, but it carries weight among us simple Bible students.

You’re humility is so impressive, even I’d be proud to have it. :-)

Comment #12710

Posted by Timothy Sandefur on January 5, 2005 09:50 AM (e) (s)

I fail to see the alleged irony to which Dr. Beckwith refers. There is nothing logically inconsistent with pointing out that, in addition to being unconstitutional, attempts to ally Christianity with the state violate some of the principles of the New Testament.

I strongly disagree with one statement by Mr. Jones, although perhaps his wording was just a little inaccurate. “Teach the conclusions of scientists in science classes,” he says. No! Merely teaching the conclusions of science in a science class is practically worthless. Science classes exist to teach the method of science. As Carl Sagan said,

If we teach only the findings and products of science—no matter how useful and even inspiring they may be—without communicating its critical method, how can the average person possibly distinguish science from pseudoscience? Both then are presented as unsupported assertion. In Russia and China, it used to be easy. Authoritative science was what the authorities taught. The distinction between science and pseudoscience was made for you. No perplexities needed to be muddled through. But when profound political changes occurred and strictures on free thought were loosened, a host of confident or charismatic claims—especially those that told us what we wanted to hear—gained a vast following. Every notion, however improbable, became authoritative….

It is enormously easier to present in an appealing way the wisdom distilled from centuries of patient and collective interrogation of Nature than to detail the messy distillation apparatus. The method of science, as stodgy and grumpy as it may seem, is far more important than the findings of science.

Carl Sagan, The Demon-Haunted World: Science As A Candle in The Dark 21-22 (1996).

Comment #12713

Posted by Ed Darrell on January 5, 2005 10:33 AM (e) (s)

A candle in the dark?

Well, as Dickens once wrote:  ‘The stairs were dark.  But darkness was cheap, and Scrooge liked it.’

Comment #12719

Posted by Grand Moff Texan on January 5, 2005 11:35 AM (e) (s)

So this is the quality of work we can expect now that Oral Roberts is opening a law school?  Or perhaps people with experience in law will tell me that it’s always been this shoddy…

<i>“[t]he objectives of the American education system and Supreme Court jurisprudence leave the door open for the teaching of competing origins theories within the confines of the Constitution if certain criteria are met.” Id. at 590.</i>

This is apparently some new usage of the word ‘competition’ of which I was previously unaware.  When did compensating for competitive inadequacies through seeking political advantage in deceit and demagoguery become competitiveness?

Comment #12720

Posted by Timothy Sandefur on January 5, 2005 11:40 AM (e) (s)

Well, as a matter of memetics, that is a form of competitiveness, I suppose, though hardly a pleasant one.

Different law schools have different standards. The Harvard Law Review publishes, in theory, only quality material—although, as we all know, they recently betrayed that legacy very badly. In law, as in all things, no amount of oversight and regulation can replace the consumer protecting himself.

Comment #12768

Posted by Gary Hurd on January 6, 2005 12:12 AM (e) (s)

I have been a long time admirer of Yeshua ben Yosef’s legal ability when confronted by the Pharisees.  As reported in Matthew;

Matthew 22:15
Then the Pharisees went and plotted together how they might trap Him in what He said.

Matthew 22:16
And they *sent their disciples to Him, along with the Herodians, saying, “Teacher, we know that You are truthful and teach the way of God in truth, and defer to no one; for You are not partial to any.

Matthew 22:17
“Tell us then, what do You think? Is it lawful to give a poll-tax to Caesar, or not?”

Matthew 22:18
But Jesus perceived their malice, and said, “Why are you testing Me, you hypocrites?

Matthew 22:19
“Show Me the coin used for the poll-tax.” And they brought Him a denarius.

Matthew 22:20
And He *said to them, “Whose likeness and inscription is this?”

Matthew 22:21
They *said to Him, “Caesar’s.” Then He *said to them, “Then render to Caesar the things that are Caesar’s; and to God the things that are God’s.”

Matthew 22:22
And hearing this, they were amazed, and leaving Him, they went away.

The question was one of tax law, and the Pharisees clearly hoped that Yeshua would either make a statement bowing to an unpopular human- worse a Roman- law, or make a statement that would support a charge of sedition.  Of course, Yeshua in fine lawyer form evaded the trap by citing earlier law.  The coin that was required to pay the tax was Roman and had the “graven” image of Caeser.  Any and all such graven images were forbidden, and so the earlier scripture (in Exodus by the way) was used to counter challenge the Pharisees for even having such coins. 

Clever Rabbi, neh?

It seems to me that Judge Bauer has joined a keen understanding of the law and the Bible with a sense of humor.

Comment #12769

Posted by Gary Hurd on January 6, 2005 12:37 AM (e) (s)

Actually it is even more clear in Luke;

Luke 20:20
So they watched Him, and sent spies who pretended to be righteous, in order that they might catch Him in some statement, so that they could deliver Him to the rule and the authority of the governor.

Luke 20:21
They questioned Him, saying, “Teacher, we know that You speak and teach correctly, and You are not partial to any, but teach the way of God in truth.

Luke 20:22
“Is it lawful for us to pay taxes to Caesar, or not?”

Luke 20:23
But He detected their trickery and said to them,

Luke 20:24
“Show Me a denarius. Whose likeness and inscription does it have?” They said, “Caesar’s.”

Luke 20:25
And He said to them, “Then render to Caesar the things that are Caesar’s, and to God the things that are God’s.”

Luke 20:26
And they were unable to catch Him in a saying in the presence of the people; and being amazed at His answer, they became silent.

Now, I still get a smile from Luke 20:22 because of the double meaning of “law” as used by the Pharisees set up the loophole exploited by Yeshua.

It is pathetic that Judge Bauer had to write a dissent.  His ought to have been the majority opinion if the Constitution was actually the governing law applied.  Instead, shallow religiously motivated thinking or political cowardliness seems to have ruled.

Comment #12832

Posted by Scipio on January 6, 2005 05:06 PM (e) (s)

In response to Grand Moff Texan Comment 12719:

Ellerbe went to law school at LSU.

Whether this is a comment on the quality of the legal education available at LSU is open to debate.  However, it is manifestly clear to me (who after all only went to the University of Mississippi Law School, and thus probably ranks a few levels below someone like GMT), that Oral Roberts University and Lousiana State University are not the same institution, nor are they in the same state.  Perhaps Mr. Moff Texan (Moff-Texan?) was attempting to make a clever comment on how graduates of LSU law school are no different than graduates of Oral Roberts University.  If so, I submit to him that he has never attended a football game in Death Valley.

Comment #12970

Posted by DaveScot on January 7, 2005 08:44 PM (e) (s)

“Any person in America is free to use that phrase at any time, in any classroom or any other place in this country, regardless of the decisions in the Newdow case.*”

You gotta be shitting me.  What planet do you live on?  Teachers can’t even say “Merry Christmas” in the public schools in the  Austin area.  The bauble bedangled pine tree at the local middle school this year was officially a “Holiday Tree” instead of a “Christmas Tree”.  Students can call it whatever they want but faculty cannot.

Comment #12975

Posted by Great White Wonder on January 7, 2005 08:54 PM (e) (s)

David Springer

Teachers can’t even say “Merry Christmas” in the public schools in the Austin area.

Yet another lie?  Wow.  Folks, David Springer may set a new record for dissembling on the Panda’s Thumb.  Jerry Don Bauer is going to have to return the crown by the end of the weekend.

Comment #13076

Posted by Timothy Sandefur on January 8, 2005 08:18 PM (e) (s)

Well, I don’t know if it’s a lie, but it’s at least a misunderstanding. Teachers most certainly can say Merry Christmas in Austin or anywhere else, and if a government official tells a teacher not to say that, the teacher has grounds for a lawsuit, in my opinion. If a school official decides to call a Christmas Tree a Holiday Tree, the official has that authority, but that decision is not required by the First Amendment; current law permits the display of Christmas trees, so long as they are not done in a way that puts a government imprimatur on religion.

As I’ve said before, school administrators are frequently ignorant of what the law permits and/or requires, and they tend to do stupid things as a result, like forbidding teachers to say “Merry Christmas.” But that is not the law, and school officials who do such stupid things risk (meritorious) lawsuits.

Also, I ask that commentors refrain from obscenities on Panda’s Thumb. Thank you.

Comment #13083

Posted by Ed Darrell on January 8, 2005 09:36 PM (e) (s)

Teachers across Texas greeted students with “Merry Christmas” through the entire month of December.  There were hundreds, perhaps thousands, of Christmas performances.  Christmas trees were put up in thousands of schools (we had at least two in our school in Irving).

It’s not that I don’t trust you, Dave, but do you mind letting me know which district you’re in?  I’d like to check out their policy on holiday greetings.  You can e-mail me if you wish.

Comment #13326

Posted by Bayesian Bouffant on January 11, 2005 01:42 PM (e) (s)

DaveScot:

The bauble bedangled pine tree at the local middle school this year was officially a “Holiday Tree” instead of a “Christmas Tree”.

Maybe they could call it a Babylon bush.

Historians say the Tannenbaum dates to the Druids of northern Europe, who lived several centuries before Christ and used pine boughs to mark the winter solstice. Even some evangelical Christians, acknowledging its pagan past, jokingly refer to their trees as “Babylon bushes.”
…

Comment #13327

Posted by Great White Wonder on January 11, 2005 01:49 PM (e) (s)

Ed

It’s not that I don’t trust you, Dave, but do you mind letting me know which district you’re in?  I’d like to check out their policy on holiday greetings.  You can e-mail me if you wish.

Did David Scott Springer ever write you back with confirmation for his allegations, Ed?

Trackback: Sandefur on Constitutionality of ID

Posted by Dispatches from the Culture Wars on January 4, 2005 08:05 PM

Mr. Sandefur has a thorough fisking of a law review article advocating the teaching of ID as constitutional at the Panda's Thumb. Travel hither and read....