Beckwith’s Reply on the Establishment Clause Posts

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Francis Beckwith has posted a more well thought-out response to my posts criticizing his claim that the NCSE website violates the Establishment Clause. Some quick notes:

First, Prof. Beckwith continues to refer to me as an attorney for the Pacific Legal Foundation, so I must again reiterate that I speak for myself on Panda's Thumb, and not for my employers, clients, or donors.

Now, as for the good stuff, Prof. Beckwith cites the Lemon test. Fine enough. Then he says that Lemon's been criticized. True. He then says that Justice O'Connor "proposed an alternative to the Lemon Test" in her opinion in Lynch. This differs significantly from his earlier claim that Justice O'Connor's Lynch opinion is the test for establishment. In fact, her "alternative" remains just that--an alternative that has never been adopted by the Court.

He also argues that Rosenberger is not applicable to this case because

"The funding in Rosenberger was not direct; it was indirect funds given to a third-party printer. And its purpose was not to advance a particular view of religious knowledge as correct; its purpose was to reimburse a student organization for its printing costs, which happens to be an organization that advances a religious point of view.... [Also] UVA was not directing the propagation of a religious point of view. It was merely, as a result of the Court's holding, exercising "principles" that "provide the framework forbidding the State from exercising viewpoint discrimination, even when the limited public forum is one of its own creation." (from Rosenberger)
Such distinctions are not persuasive. First, the funding to the NCSE website is no more direct than the funding in Rosenberger; the money was given to the NSF, which gave the money to the NCSE, which gave the money to someone to set up and maintain a website; its purpose was to pay a foundation's Internet publication costs, which happens to be an organization that "seems" to Beckwith to be advancing a religious point of view. And the NSF is not directing the propagation of a religious point of view. It is merely explaining "principles" that provide the framework for educating students in science. Prof. Beckwith's attempt to distinguish Rosenberger seems weak to me.

In any case, the questions of how relevant the Lynch "alternative" is, or the facts of Rosenberger, are mostly just lawyers fighting. The real question is Prof. Beckwith's own views. Here's the relevant part: he says that government funding for the NCSE website violates the Establishment Clause because

"one way to nurture hostility toward religion would be for the state to propagate the view that theology is not part of a knowledge tradition that may count for or against the deliverances [sic] of ‘science.' For the NCSE/Berkeley site seems to me to be suggesting that public school teachers, in responding to religious queries while teaching evolution, ‘scan and interpret student' questions ‘to discern their underlying philosophic assumptions respecting religious theory and belief.'"
1) This is precisely the argument that was rejected in Smith v. Board of School Com'rs of Mobile County, 827 F.2d 684 (11th Cir. 1987), which I cited earlier, and to which Beckwith does not respond. The government, in pursuit of legitimate secular objectives, may make statements which might "seem" to people to "suggest" that people use secular methods to answer questions. That simply does not constitute an establishment of religion, under Lemon or its progeny.

2) If Beckwith's interpretation were to become law--that government funds could never be allowed to "propagate [a] view" that theology is or is not "part of a knowledge tradition that may count for or against" whateveritis--or, worse, that government could never do something that "seems" to propagate such a thing--then, as I pointed out repeatedly, a variety of things conservatives think are perfectly legitimate, such as declarations of days of Thanksgiving, the placement of "In God We Trust" on coins, or the President's Easter radio address, would violate the Establishment Clause as well. The courts have never adopted such an extreme separation view. I and most religious conservatives think this is wise. Courts have generally held that something more than a mere image of endorsement--and usually something more than mere funding of private parties who "propagate a view"--is necessary to violate the Establishment Clause. In one recent case, the Sixth Circuit Court of Appeals held that Ohio's adoption of the state motto "With God All Things Are Possible" does not violate the Establishment Clause.See American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Bd., 243 F.3d 289 (6th Cir. 2001). Were Prof. Beckwith's interpretation of Justice O'Connor's Lynch opinion--extremely subjective as it is--to be adopted, this case would have to be reversed, as would many others. I asked Prof. Beckwith to address this point, but he still hasn't. He says that I misrepresent his view by calling it extreme. But I think it is extreme. That's why the Court has never adopted it, and why so many religious conservatives hope that it never does.

3) Beckwith says that "[i]ronically, Rosenberger, at a higher level of generality, could be read to support the position I defend in my American Spectator piece." Well, I suppose that, at a high enough "level of generality," just about all things look alike. The fact is, the Establishment Clause analysis in Rosenberger, and in all the other cases I cited, say that government does not violate the Establishment Clause simply by giving a grant to a private organization for legitimate secular reasons, when that private organization also happens tp advocates a religious position. Now, I don't mean to concede that the NCSE website does advocate a religious position--I think that suggestion is absurd. But I'm just assuming it does for purposes of this argument.

In Prof. Beckwith's favor, I will say that I think his argument that the fact that the NSCE website is on a University of California server strikes me as much stronger than his claim that the NSF grant violates the Establishment Clause. Not convincing, but stronger. I know of no cases on the subject, however. Complete separation of government funding and religious statements are not, however, required by the Establishment Clause. That Clause only forbids "governmental indoctrination," or "defin[ing] recipients [of government largesse] by reference to religion," or "creat[ing] an excessive entanglement'" of government and religion. Mitchell v. Helms, 530 U.S. 793, 808 (2000) (plurality op.) It just seems like very far reaching to claim that the fact that a single descriptive page on a long website about evolution, hosted on a University of California server, constitutes establishment. Again, a mere image of endorsement does not violate the First Amendment.

You know, the Capitol Square Review case cited above includes some words from which I think Prof. Beckwith could profit:

Much of what government does is irritating to someone. For example, the substantive content of the forms distributed by the Ohio Department of Taxation--particularly the line on the income tax form that says "AMOUNT YOU OWE"--is likely to be more irritating to more Ohioans than any motto imprinted on the Tax Department's stationery. This hardly makes the income tax unconstitutional. Our level of irritation with a given governmental action is simply not a reliable gauge of the action's constitutionality. The mere fact that something done by the government may offend us philosophically or aesthetically does not mean, ipso facto, that the Constitution is offended.
243 F.3d at 309.

15 Comments

I’m suprised Beckwith is still trying to defend the original accusation that the UE website violates the First Amendment. His argument rests on the view that the website advocates nonoverlapping magisteria (NOMA). However, this view is clearly false. You can’t have NOMA with out the NO, and the UE website clearly does not advocate NO.

Link to remind us what we are talking about.

Reed: the devastating brevity of that argument continues to bring a tear to my eye (no sarcasm intended).

This only makes Tim’s argument stronger, but in the interests of nitpicking, Understanding Evolution is not really a “NCSE website”. My understanding of the facts is that: only 3 out of 22 people credited on the website are NCSE employees, and while I don’t know exactly how much of the grant went to NCSE, it was on the order of $1000 (out of a ~1 million dollar combined grant). NCSE’s role was essentially to give advice and review, and to help write the grant in the first place. Just wanted to make sure the credit is distributed fairly (or the blame, if you are Beckwith).

Thanks to Timothy for his rebuttal to me on this matter. It is unlikely that we will convince each other, but I have learned from our interaction. BTW, I apologize for mentioning his employment affiliation. I was trying to be complementary. My bad.

To Reed: You may want to look at the essay of mine to which Timothy responded. It quotes from a section of the Understanding Evolution site in which there are cartoon students asking questions. One student asks (the red-haired girl in the back row who have to click to see the question), “If I accept evolution, do I have to quit going to church?”: Here’ the answer the site suggests: “Science and religion deal with different things. Science tries to figure out how things work and religion teaches about morality and spirituality. There doesn’t need to be a conflict.” It can be found here. Compare this with Stephen Jay Gould’s description of NOMA:

“Each subject [science and religion] has a legitimate magesterium, or domain of teaching authority - and these magesteria do not overlap . … The net of science covers the empirical universe; what it is made of (fact) and why does it work this way (theory). The net of religion extends over questions of moral meaning and value.” (Stephen Jay Gould, “Nonoverlapping Magisteria,” Natural History 106 [Mar. 1997]: 16)

Maybe I’m missing something, but it seems to me that the UE is offering something almost indistinguishable from NOMA.

Frank

P.S. I must extract myself from this discussion or I will get nothing done. Sigh.…

One more thing… (promise). The fact of the UE being on the Berkeley server has always been part of my case, and in fact an integral part of it. This is from my American Spectator article: “The guide is published on the UC Berkeley server. However, because the NSF is an agency of the federal government, and because UC Berkeley is a state actor, there is a portion of the guide that should attract the attention of those who believe that the government should not be in the business of teaching that a particular theological point of view is the correct one.”

Perhaps I am misunderstanding Timothy’s last response. But it sounds like he’s saying that the Berkeley-server connection is something new, that I recently added it to my case. It has always been part of the case. If I’m misunderstanding him, I apologize.

Frank

Frank,

Thank you for pointing out that other part. I hadn’t seen it brought up before.

Science and religion deal with different things. Science tries to figure out how things work and religion teaches about morality and spirituality. There doesn’t need to be a conflict.

This does appear to be inspired by NOMA; although, it is weaker IMO. Nevertheless, I will return to a point I made about the other UE page. Namely, from a secular, academic point of view, are there any errors in the passage? Four statements are made.

1. “Science and religion deal with different things.”

2. “Science tries to figure out how things work.”

3. “[R]eligion teaches about morality and spirituality.”

4. “There doesn’t need to be a conflict.”

Can you find something academically erroneous in them? Furthermore, can you establish that these errors are due to sectarian influence? I believe that you have to accomplish this before you can argue that there is an injury to people who disagree with UE’s positions.

Frank, if you’re reading this, I suggest you stop using Plantinga to learn your theology, and instead use Howard van Till, Nancey Murphy, Ernan McMullan, Don Cupitt, and Michael Ruse.

Plantinga is a theistic realist, which only puts science and religion on a crash course. Plantinga (and Johnson) is trying to argue that Christian theism is really physics, not metaphysics, and that’s why there’s conflict. The best he can do to justify this is to claim relevation, and thus try to move ontological claims out of the belief category and into the knowledge category. For Plantinga, there is no difference between faith and reason.

Dembski’s whole argument depends critically on this distintion between Christion physics vs. Christian metaphysics, although he hardly makes this fact explicit. When Dembski argues that his filter can detect the influence of a supernatural cause, his claim only makes sense in the context of a realist epistemology.

Needless to say, this kind of Christian theology is hardly the mainstream view. The basic problem with conflating naturalism and supernaturalism is that if you make an observation, then how do you know whether it was due to natural causes or supernatural causes? Talk about a demarcation problem!

All scientists, and most theologians, recognize this and for them there is no conflict because they’re not strict realists. They correctly realize that what scientists do is study not “natural” laws per se, but rather “interaction” between the observer and his environment. So forget about naturalism vs. supernaturalism because that’s only going to confuse you.

Scientific theories are constructions, reached by consensus among a community of scientists. Such models are intersubjective, not objective.

Science, properly understood, is about predication and control, not metaphyics. That’s why there’s no conflict between science and religion.

Forget about Plantinga because he’s only going to confuse you.

In all honesty I don’t get why the establishment clause couldn’t be taken as strictly as you say {with the subsequent reprinting of money w/o blatant promotion of religious Theism, etc., etc.}, without the NCSE website being in the least bit of trouble. The fact of the matter is, is that Beckwith thinks Secularism in law and government, materialism in science, and so forth, are all a form of religion, and if everything is religious then even having an establishment clause is incoherent because its just a matter of whose religious ox is getting gored. The NCSE is perfectly allowed to say that religion can’t dictate science - this isn’t a trespass on the establishment clause, it’s an affirmation of it. Basically what Beckwith is saying is that the establishment clause - the separation of church and state (such as state-sponsored secular science education)- is in violation of the establishment clause because the state {and science, and definitions of religion and science, and whatever else he decides} is a religion.

His argument rests on the view that the website advocates nonoverlapping magisteria (NOMA).

For the sake of argument Reed what if it did advocate NOMA*? Would that violate the 1st amendment?

*and, to be frank, I think the hairs are being split awfully thin on whether it does or not.

I have a serious question for Prof. Beckwith (who has been quite gracious on this blog): If the NCSE website violates the First Amendment under current establishment clause jurisprudence because it advocates the view that evolution and theology are compatible, then how is it NOT a similar violation to expend public funds on ID?

I understand that Prof. Beckwith’s view is that current establishment clause jurisprudence is mistaken (a statement with which I would wholeheartedly agree) – so I am not asking a normative question, merely one of the application of Prof. Beckwith’s analysis of the establishment clause.

As an aside to Mr. Sandefur: the Lemon test IS a mess, both conceptually and in practice.

Andrew writes: “If the NCSE website violates the First Amendment under current establishment clause jurisprudence because it advocates the view that evolution and theology are compatible, then how is it NOT a similar violation to expend public funds on ID?” That’s a good question, one in fact that I though would have been asked earlier. The “teaching religion” part of my case is based on the site’s assertion that religion and science are incommensurable (I know it does not use that exact word, but that’s what I think it is saying), that it is in fact the correct understanding on the matter (and includes links only to religious groups that agree), and that those that disagree with this understanding hold a misconception that is divisive. As far as the analogy with ID, it depends on how ID is presented. If it is presented as it is often defended–as a collection of arguments whose premises do not appeal to religious authority, but rather, to publicly accessible reasons–then a government funding of ID research would not run afoul of the First Amendment, if that’s all that the funding amounted to. However, if government-funded ID research is offered on a government web site specifically created to teach public school instructors the correct way to think about the relationship between religion and science with links to only religious groups that offer that prescription while denouncing detractors as misguided and intolerant (or something to that affect), then that, in my judgment, would run afoul of the First Amendment as well.

Here’s what I suggest should have been done on Understanding Evolution (for those who are curious). 1. The view that is currently affirmed there should remain and the site should say that it is probably the dominant view among mainline Christian and Jews. 2. The site should include a respectful mention that there are those who take a different point of view, and among those who take this position are serious religious people as well as atheists and agnostics.

BTW, the second position does not necessarily cut along the creation/evolution/ID divide as some may think. There are, for example, some theistic evolutionists (e.g., Richard Swinburne), who raise serious questions about evolution’s capacity to account for such phenomena as mind, moral properties, or the laws of nature. Since the UE site decries Social Darwinism, what would be wrong with including a thing or two about philosophical arguments against Social Darwinism, some of which offer a strong case against materialism as a worldview (though not against Darwinism as a theory of biology)? This would help distance Darwinism from materialism–thus out-Wedging the Wedge–and would expose students to important ideas that may help them better understand the relationship between science and society. Just a thought. (I’m kind of thinking out loud here; so, don’t ask me detailed questions about my “plan”).

Good night.

Frank

I guess I’m stuck on this phrase “ID research”. WHAT research? Can someone even envision what “ID research” might entail? Since the only thing offered so far is an argument from ignorance - not evolution, therefore God(I refuse to play this game that everyone knows is ridiculous and not call it God since that is what they mean) - “ID research” would in fact be “evolution research” in the hope that it would fail, i.e. not find an acceptable explanation for whatever phenomenon is under examination, so they can skip to the “therefore” part. So what does the phrase really even mean?

Prof. Beckwith: Ultimately, I think we’re going to disagree based on the factual distinction you’ve raised above – that the UE site smuggles in “the assertion that religion and science are incommensurable.”

The actual words the site uses are:

“Most Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings. In fact, many religious people, including theologians, feel that a deeper understanding of nature actually enriches their faith.”

This is pretty much word-for-word what you’ve argued for in part (1) of your plan above. Thus, your argument necessarily reduces to one about context; that is, because UE states (1) without stating (2), the implication to be drawn from it is that those sneaky evolutionists are trying to surreptitiously discount religiously-motivated criticisms.

Am I correct in reading your argument so far?

Andrew: The quote you extract from UE site, isolated from the other quotes I’ve cited in my numerous postings on this (including my AS piece), is pretty benign. The important quotes are the suggested answer to the student’s question (see above), the claim that science and religion deal with different things (I forget the exact words), and the judgment that people who don’t accept this hold a misconception that is divisive.

I’m not interested in people’s motives, and I don’t believe that UE folks are “sneaky evolutionists.” I have no doubt that the portion of ths site about which I have raised questions is a sincere effort on the part of conscientious people to try to solve a difficult problem around which teachers may have to navigate. What I am suggesting is that what the site is offering as a solution is one point of view among many, and therefore, should not be presented as if it were the correct one. That’s all.

Frank

Franks says:

“The important quotes are the suggested answer to the student’s question (see above), the claim that science and religion deal with different things (I forget the exact words), and the judgment that people who don’t accept this hold a misconception that is divisive.”

Here are the exact words Frank forgot:

“Religion and science (evolution) are very different things. In science (as in science class), only natural causes are used to explain natural phenomena, while religion deals with beliefs that are beyond the natural world.”

As discussed ad nauseum here and elsewhere, religion and science ARE very different things and no Federal Judge with any integrity will ever find otherwise, no matter how may philosophical brainteasers or refried Swinburnisms are thrown her way.

“The misconception that one has to choose between science and religion is divisive. Most Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings. In fact, many religious people, including theologians, feel that a deeper understanding of nature actually enriches their faith. Moreover, in the scientific community there are thousands of scientists who are devoutly religious and also accept evolution.”

Particularly in the context of that paragraph, the statement that “the misconception that one has to choose between science and religion is divisive” is hardly debatable: the evidence is overwhelming that devoutly religious people accept evolution (without jumping through elaborate philosophical hoops, I might add – they ACCEPT evolution because of the massive amount of scientific evidence which supports it), and in what possible way could the suggestion that these religious people forsake one or the other of their religious or scientific beliefs NOT be divisive??????

We are left then only with the question of whether in fact the misconception of having to choose between science and religion is promulgated by the ID community. The answer is YES, IDers do promulgate the misconception. The foundation of the ID argument is that science students are unfairly being presented with only one CHOICE for understanding the diversity of life on earth: evolution.

The IDers “unfairness” argument is divisive because it ignores the fact (proven by the existence of millions of unconflicted and devout scientists throughout the world) that there is NO NECESSARY conflict between the presently taught scientific theories for the origin and evolution of life and any non-scientific (e.g., religious) beliefs that a student (or her family) might have.

The mere fact that a group of people (like those Francis Beckwith seeks to represent) *believes* that a concept is “scientific” does not *make* that concept a scientific theory, especially (1) when 99% of scientists (and dare I say a majority of non-scientists) are convinced that ID is a useless crock of hooey and (2) when ID is largely and conspicuously supported by political conservatives and evangelical Christians, particularly those on the outer fringes of decent society (e.g., Moonies and if you have a problem with that term, be prepared to defend your leader’s statements). The significance of this latter point may be appreciated when one recognizes that there are a multitude of other scientific “theories” (note the quotes) which are taught at least as “dogmatically” as evolution but in which working scientists nevertheless find thousands of points of disagreement. The Discovery Institute, for some mysterious reason, can not be bothered with THOSE theories, although all of that non-evolutionary “dogma” vastly outweighs the evolutionary “dogma” in terms of the sheer numbers of theories taught. Even if ID were miraculously accepted in classrooms tomorrow, the remaining “dogma” would continue to wreak unspeakable havoc on our children’s minds. And yet, these conservative religious groups choose to focus all their energy on pushing ID.* To put it the way so many conservatives do nowadays: why do ID apologists hate America?

Perhaps if the IDers and apologists (you know who you are) would stop rambling on about “theistic realism” and start conducting and publishing experiments which demonstrate that ID is more than a political tool, then they might actually succeed in convincing a substantial minority of scientists that ID should be taught in science classrooms. Then we could have a real debate about the merits of ID.

I’m not holding my breath.

*not entirely accurate – they save some money to stop schools from spreading the “homosexual agenda” as well. Has anyone polled IDers and apologists to determine how many of them believe that homosexuals choose their orientation? Of course, we know that “many” scientists disagree about whether homosexuality is a choice …

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This page contains a single entry by Timothy Sandefur published on April 14, 2004 6:28 PM.

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