More on neutrality

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The comments to my earlier post on neutrality suggest that I have not been entirely clear. Matt Brauer says that "the issue is of the state ‘preferring' rationality to non-rationality, as it should." I agree it ought to. But if we're talking about the Constitution, then we aren't talking about what the state ought to do; we're talking about what the state may or must do. The state certainly ought to prefer rationality. But the First Amendment, even as incorporated to the states through the Fourteenth, does not clearly say that the state must do that; indeed, it doesn't even clearly say that the state may do that.

(Quickly, for the non-lawyers: The First Amendment, as originally written, only prohibited the federal government from interfering with state religious establishments--it was written to allow states to have established churches. It also prohibited the federal government from interfering with the free exercise of religion. The Fourteenth Amendment, passed in 1868, is said to have "incorporated" the Bill of Rights to the states--that is, courts (more or less) interpret the Fourteenth Amendment as saying that states are not allowed to do the things that the federal government wasn't allowed to do under the Bill of Rights. As Justice Thomas pointed out in his concurrence in Zelman, however, and as Prof. Amar has written in his Bill of Rights, the Establishment Clause applies very clumsily to the states, since it was written precisely so as to not apply to the states! It was not applied to the states until Everson, in the 1940s.)

Does the First Amendment, as incorporated to the states, require, or allow, states to choose rationality over non-rationality? Well, the Establishment Clause does limit the state's choices. The state may not choose certain categories of non-rationality over others. At least some Justices believe that the Establishment Clause prohibits "not only the institution of an official church, but any government act favoring religion, a particular religion, or for that matter irreligion." Mitchell v. Helms, 530 U.S. 793, 867-68 (2000) (Souter, Stevens, Ginsburg, JJ, dissenting) (emphasis added). See also Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 798 (1995) (Stevens, J., dissenting). This would seem to be the logical extension of Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968), which said that "[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." This would suggest that the state may not distinguish between epistemologies based on reason and experiment, and epistemologies based on faith and revelation. So how can it distinguish between evolution and creation? Courts and commentators have answered this by saying that evolution isn't "nonreligion," so the state doesn't have to treat it as equal to religion. For instance, in the comments to my original post, Doug G. says that "science is [not] just another philosophy, but rather a legitimate means of determining truth. . .. If there can be ‘good' and ‘bad' science for the purposes of its use in a law suit, then the Court is saying that one is more likely to represent the ‘truth' and is a reasonable basis on which to judge the issue at hand." That's an attractive argument--and it's the one that the courts have adopted. See, e.g., McLean v. Bd. Of Ed., 529 F. Supp. 1255, 1267-68 (D. Ark. 1982). But I am not satisfied with it because I think it begs the question. What we're asking is, may the state prefer science over religion as "a legitimate means of determining truth"? Under Daubert and other cases, the answer is clearly yes--but under Ballard and other cases, the answer is clearly no.

May the state prefer--or, if you will, "establish"--rationality as the basis of its policies? As Rev. Lovejoy says on the Simpsons, "long answer yes with an if; short answer no with a but." While it is certain that the state ought to prefer rationality to non-rationality, it is not clear that the Constitution requires it to do so; and it is clear that it does not have unfettered discretion to do so. The state may require parents to have their children vaccinated, despite the parents' religious views. Jacobson v. Massachusetts, 197 U.S. 11 (1905). It may get a court order to require blood transfusions even where the parents, as Jehovah's Witnesses, believe that this is sinful. In the Matter of Cabrera, 552 A.2d 1114 (1989); Jehovah's Witnesses v. King's County Hosp., 278 F. Supp. 488, 504 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968). But it may not require a pregnant woman to take a transfusion against her religious views for the benefit of her unborn fetus, In re Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997), or find, as a matter of tort liability, that a party's refusal of medical treatment on religious grounds was unreasonable. Williams v. Bright, 632 N.Y.S.2d 760, 766 (Sup. Ct. 1995) ("If the Jehovah's Witness rejection of blood transfusion in surgery is deemed by a jury to be ‘unreasonable,' then a judgment has been made as to the soundness of the religion.... The making of such a decision is clearly beyond the scope of what any agency of government may do.").

This is why I don't think the question can really be answered by saying, as Tom Clark does, that "science. . .simply seeks to explain phenomena in ways that are maximally predictive and unifying. . .. [I]t's a method of explaining the world, and not the only one available. . .." Quite true--but may the state adopt that method of explaining phenomena? carrie says that "[t]here is no science ‘worldview,' only falsifiable theories that have been tested using this method (always subject to revision!)." Granted, but this still begs the question. We are confronted with people who assert that the Constitution requires the state to view the scientific method and non-scientific epistemologies like faith and revelation as equally valid. What legal grounds do we have to refute that? And what are the implications of refuting it?

I come down on the side of saying that the Establishment Clause does allow states to rely on science as the proper method for determining the truth. I think that is the only common-sense solution--the creation of schools itself embodies a government preference for rationality over irrationality. But I think that position requires me to say that Ballard should be overruled. And just think what that would mean: someone files a lawsuit against a faith healer for fraud; the plaintiff's attorney introduces the results of various experiments performed on the effectiveness of faith healing; this evidence establishes that faith healing is baseless; the court finds liability. That would establish a precedent very dangerous for religious freedom: some wacko atheist in California could file a lawsuit under Business and Professions Code §17200--which prohibits all "unfair" business practices--against the Catholic Church on the grounds that priests do not actually do anything during mass; that transubstantiation and confession and the rest is all a big lie--well, I think it clear that this could lead to the eradication of religious liberty, something to which I would be very much opposed.

So how can the Constitution allow the state to give blood transfusions to the children of Jehovah's Witnesses--which obviously embodies a government endorsement of rationality over irrationality--while simultaneously prohibiting the state from inquiring into the validity of confession and transubstantiation? The answer the courts have devised is to draw a distinction between the rationales for these two positions--the blood transfusions case is about science, and the transubstantiation case is about religion. This allows us to adopt a seemingly a-religious grounds for teaching students the scientific method but not religious faith. See, e.g., McLean, 529 F. Supp. at 1267-69 (defining science and finding that creationism is not science). See also Eugenie Scott, Creationism, Ideology, And Science, in Paul R. Gross, et al. eds., The Flight from Science And Reason 505 (1996) ("teachers [must] distinguish between where science leaves off and where philosophy begins.") As I've explained, I think this distinction is flawed--because there is no point at which science leaves off and philosophy begins, at least not if philosophy is to avoid mysticism. See Daniel Dennett, Darwin's Dangerous Idea 21 (1995) ("There is no such thing as philosophy-free science; there is only science whose philosophical baggage is taken on board without examination.") But I do not know what legal substitute I would offer to the courts. What I would like is a "fundamental explanation of the realm." See Robert Nozick, Anarchy, State And Utopia 19 (1974) ("Fundamental explanations of a realm are explanations of the realm in other terms; they make no use of the notions of the realm... [T]he less our explanations use notions constituting what is to be explained, the more...we understand."): How can we defend a policy of teaching the scientific method, when the other side flies to a higher strain and answers that the state is constitutionally required to treat the scientific method itself as no more valid than dogma? That is the deepest side to this debate.

(Deep breath...) Now, having said all of that, I don't think it's necessary to resolve any of it for the purposes of the controversy over creation "science," including ID. Advocates of creationism claim to be defending science. Thus, the state has decided to teach science, and all sides have stipulated to its decision to do so. So, once that decision is made, I think it's obvious that the state has the right to teach only actual science.

Hm...This is why people hate lawyers, isn't it?

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Thanks for the explication, Tim. I’m still trying to digest it, but what you said makes a lot of sense.

The First Amendment, as originally written, only prohibited the federal government from interfering with state religious establishments—it was written to allow states to have established churches.

I strongly disagree with this statement. When the bill of rights was passed, the concern was the federal government abusing its power and harming the liberties of the “quasi-independent” states from which it was made. “Congress” is mentioned in the first amendment not to allow states to have their own churches, but because the document was focused on the union. Initially the only constraints placed on states were those necessary for them to work in a union.

To say that the founding fathers thought that states should be able to have established churches would also mean that the founding fathers thought that states should be able to prevent protest, assembly, speech, press, etc.

I was hoping that you could say a little bit more about this claim: “there is no point at which science leaves off and philosophy begins, at least not if philosophy is to avoid mysticism”

Tim writes,

So how can the Constitution allow the state to give blood transfusions to the children of Jehovah’s Witnesses—which obviously embodies a government endorsement of rationality over irrationality—while simultaneously prohibiting the state from inquiring into the validity of confession and transubstantiation? The answer the courts have devised is to draw a distinction between the rationales for these two positions—the blood transfusions case is about science, and the transubstantiation case is about religion. This allows us to adopt a seemingly a-religious grounds for teaching students the scientific method but not religious faith. See, e.g., McLean, 529 F. Supp. at 1267-69 (defining science and finding that creationism is not science). See also Eugenie Scott, Creationism, Ideology, And Science, in Paul R. Gross, et al. eds., The Flight from Science And Reason 505 (1996) (“teachers [must] distinguish between where science leaves off and where philosophy begins.”) As I’ve explained, I think this distinction is flawed—because there is no point at which science leaves off and philosophy begins, at least not if philosophy is to avoid mysticism. See Daniel Dennett, Darwin’s Dangerous Idea 21 (1995) (“There is no such thing as philosophy-free science; there is only science whose philosophical baggage is taken on board without examination.”) But I do not know what legal substitute I would offer to the courts.
[…]
Hm…This is why people hate lawyers, isn’t it?

Yep. I guess we’re stuck with you though ;-).

I think that the quandary you’ve explicated is based on some problems with your fundamental premises: you are treating law as if it were philosophy. Your problem is that the fundamental goal of philosophy is a self-consistent system of truth. In contrast, the fundamental purpose of the law is something entirely different: a system that promotes Life, Liberty, and the Pursuit of Happiness. These two goals are distinct and not always in harmony. The law can include self-contradictions even if they are bad philosophy.

The Founding Fathers had seen the religious wars of Europe and knew that the state establishing “religion” was bad news, whatever the religion. They didn’t say that all other concerns are subservient to this one rule – this would mean that the government would not be able to stop murder, if murder was “part of my religion.” In the case of education, democratic society has decided that knowledge is a good thing and public education is the way to disseminate it, for the good of society. Just because there are an infinite variety of potentially “religious” beliefs that education might contradict doesn’t mean that we should excise everything that potentially offends someone: that way lies madness.

Frankly, I think that the Founding Fathers made a distinction between the knowable and unknowable, between proximate, publically verifiable realm of knowledge and the ultimate, matter-of-personal-conscious realm of religion. This may seem like a lousy distinction to a philosopher (philosophy ranges over both of these realms freely), but as a practical matter it works quite well: Disputes in the ultimate realm cannot (or at least have not, as a matter of historical fact) been resolved by evidence and logic, so the state should stay out of making determinations about the ultimate realm. However, rational people can come to consensus on matters in the proximate realm (and have, as a historical matter), and furthermore rational government and functional society are impossible without doing so. Therefore the state is justified in making determinations of fact (via all the usual processes of elected representatives and appointess by elected representatives) in decision-making, and in disseminating facts via public education.

The Establishment Clause is nonsensical without something like this distinction between proximate facts and ultimate “religion”. I think that much of the confusion about the Clause stems from people thinking about it like philosopher kings (government founded on promoting “Truth”) rather than Founding Fathers (government founded on practical considerations and a deep appreciation of human corruptibility).

On this logic, if the state starts to teach demonstrably inaccurate science (as in the many falsehoods in the Ohio lesson plan), and if the reasons for the promotion of these falsehoods can be demonstrably traced to the promotion of religion (also clearly the case in Ohio), then I think there are grounds for an Establishment Clause violation.

Which is where you lawyers come in, and where my high-falutin’ arguments may be contravened by precendentsm which I know nothing about. So, thanks for listening to MHO.

I’m afraid that tle lawyer here is up to legal tricks. The courts have long accepted science as fact and scientific evidence as factual evidence (go watch CSI or Law & Order). Furthermore, the Supreme Court in it’s Daubert ruling, is working to ensure that only real science is used in the courts. Therefore, to conflate science with philosophy (or not even just philosophy, but religion) for the sake of arguing that the two are indistiguishable and therefore, neither can be preferred by the state under the First Amendment, ignores an extensive amount of jurisprudence that not only accepts the existence of science as a special realm and indicator of factual truth but indeed relies on it.

The whole issue of the teaching of ID along with evolution is only a First Amendment issue to the ID side anyway. It oly exists if you accept the supposition that evolution and ID merit equal consideration in a science classroom (i.e., if they are both just potentially equally relevant natural philosophies). If they are not (and they ARE not) then the argument is meaningless.

Basically, Tim’s legal arguments have no meaning unless you accept science as being just another philosophical construct, among many. We scientists don’t, the legal system doesn’t, and the government doesn’t. Even the ID folks don’t becuase they argue that ID is science. That makes all this First Amendment discussion a fine hypothetical (and probably more fine if you’ve got a few beers under your belt), but irrelevant to the issue of whether ID should be taught alongside evolution in classrooms.

Sorry to come on so strong, but we’ve got enough real battles in fending off ID.

If it was not for the First Amendment, there would be no constitutional barrier to teaching ID and/or Creationism in the public schools. Indeed, far from being a First Amendment issue for the ID folks “only,” it is primarily a First Amendment issue for the opponents of ID. It is the First Amendment that provides the legal basis underlying the legal challenges to teaching ID and/or Creationism in public schools. The reason these have been legally prohibited is that the courts have held that they are “religion,” and that teaching them is religious advocacy contrary to the “establishment clause” of the First Amendment.

There is no constitutional barrier against teaching “bad science” or “not science” in the schools. In the ID/Creationism cases, whether those points of view have scientific merit or not is relevant only because if the answer is “yes” it (indirectly) favors the conclusion that they “are not religion” (and constitutionally permitted) and if the answer is “no” it (indirectly) favors the conclusion that they “are religion” (and constitutionally not permitted).

Science is, of course intimately involved in the ID/Creationism legal controversies. But these are not “just” science. Rightly or wrongly, whether ID/Creaionism is taught in public schools is a legal matter, not just a question of science.

Well, it is certainly not my desire to make life harder for our side of this debate. But our laws and constitutions embody compromises between people of very different backgrounds, and that leads to contradictions in the law, as Nick says. If, as they say, the law is a seamless web, those contradictions will come back to haunt us in the future, so I am not satisfied just saying that the law should be allowed to be contradictory.

Look–there are really two perspectives on our side of this controversy. One says, like Eugenie Scott, that “If scientists give Americans the same choice as the [creationist] proposes, there will be scant interest in teaching and learning evolution…!! To encourage people to learn about evolution, it is necessary to allow them to retain their faith.” Creationism, supra, at 518. Thus, Scott concludes, scientists should attempt to “defuse” the hostility toward evolution by “avoid[ing] confusing the methodological materialism of science with metaphysical materialism…[and] avoid making theological statements.…” Id. at 520. Then there is the camp of Dawkins, Dennett, et al., who see this as trimming–as intellectually unsatisfying. I belong to this latter camp. I respect those who take the former view; I think they have reasonable arguments for their position, and it is certainly true that there are many people, including (as I understand) the leadership of the Catholic Church, who believe it entirely consistent to believe both in religion and in biological evolution. Moreover, I’m a proud, longtime contributor to NCSE, and will continue to support them for a long time to come. But in the end I still agree with Dawkins and Dennett, that this view really doesn’t address the problem.

To clarify: I do not think science is just one construct among many–I think it is the only valid epistemology. I do agree that it is not potentially equally valid to religion. But I didn’t write the law. Finally, Doug G. is correct is correct that the courts have taken the view of Scott, et al., and not of Dawkins, Dennett, and myself. I had hoped I was clear about that.

You say, “I do not think science is just one construct among many–I think it is the only valid epistemology.”

Do you mean that the scientific method is the only way of acquiring justified beliefs about the empirical world? Or do you just mean that scientific method is the only way of rationally explaining features of the empirical world?

If it was not for the First Amendment, there would be no constitutional barrier to teaching ID and/or Creationism in the public schools.

I don’t know where you live, Jeff, but here in Georgia our state constitution would block pseudoscience efforts even if the first amendment didn’t exist.

Whenever conservatives claim “states’ rights” and “local control” to get their faith-based agenda around federal constitutional standards, it is neccessary to remind them of the rights that our state constitutions give us, which are almost always stronger than the federal constitution.

Mr. Cartright is correct that State constitutions would (or could) also be invoked. Most (all?) State constitutions also have “freedom of religion” provisions, and at least some States have tended recently to interpret their constitutions somewhat independently of the way the federal courts have interpreted the similar provisions of the Constitution of the United States. I am not, however, aware of State cases about Creationism/ID that have relied on legal theories which are significantly different from those employed by the federal courts. Whether under State or federal law, these cases have evaluated the issues in terms of “establishment of religion” (or, in a couple, in terms of “freedom of speech” and similar concepts). If I’m wrong about this I’d like to know about it. In any event, it is fair to extend my shorthand (“First Amendment,” which is a reference to the federal constitution) to the more accurate “First Amendment or similar State constitutional provisions.”

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This page contains a single entry by Timothy Sandefur published on March 25, 2004 6:50 PM.

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