Francis Beckwith has an article about the Cobb County disclaimer case in Legal Times which is misleading and alarmist. According to Professor Beckwith, the decision is a threat to religious tolerance. Nothing, however, could be further from the truth.
As I explained in an earlier post, the court found that the Cobb County disclaimer was unconstitutional because although it had some secular purposes, and thus passed the first part of the Lemon test, the sticker sent an unmistakable message of government endorsement of religious views, which violates the second part of the Lemon test. For Prof. Beckwith, however,
This reasoning presents a Catch-22 that makes it nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs. For who but the citizens who take religious offense would be the most vocal critics of such policies and the most visible proponents of ways to mitigate them?
As with so much that Prof. Beckwith writes, this has a superficial logic to it, until you examine what really happened in this case. The Cobb County school board was not attempting to "remedy" a public policy that infringed on religious toleration. There is nothing to remedy about a public policy of teaching students the facts about science. Rather, this was an attempt to appease a religious group which refuses to accept those facts, and brought its political power to bear on the bureaucracy. Beckwith attempts to portray this as the school board trying to make amends for an assault on religious freedom, when the real facts are almost the opposite. The school board was making a policy uniquely to flatter the beliefs of these "citizens who take religious offense."
Whether such appeasement is a legitimate secular policy is, I think, a serious question. The judge in this case said that it was. I am not so sure. But what is clear to those not endeavoring to mislead, is that the Cobb County disclaimer was not an attempt to "remedy a religious offense," since nothing more offensive than teaching the facts had occurred. Let us imagine that a group of atheist parents get together and persuade the school board to slap a sticker on their history books that says "Religion is a lie; God does not exist; exercise your independent judgment." Would this be an "attempt to remedy public policy that atheists believe are uniquely hostile to their beliefs"? No--it would be an offensive intrusion into the classroom of a religious ideology which is forbidden from entering there.
Prof. Beckwith's misrepresentation of the case serves his goal of creating alarm in his religious readers: the decision really means that religious citizens "cannot. . .lobby their government"! So the decision "impose[s] a special burden on the political activity of religious citizens, a burden not placed on secular political participation." None of this is true. Religious citizens can lobby the government as much as they wish. What cannot happen is that the government cannot appease their religious views by adopting policies which endorse those views in the classroom. And no special burden is imposed on religious political activism from which secular activism is immune--as I said, a sticker endorsing atheism would be subject to this decision just as much as the religious sticker was.
Let's pause on this last point of Prof. Beckwith's, however. Note that he is complaining that religious lobbying (which has as its goal the creation of government policies which endorse religion) bears a heavier "burden" than does secular lobbying (which has as its goal the creation of government policies which are neither here nor there with regard to religion). His attempt to equate religious government policy with other government policies is a manifestation of a common theme with Prof. Beckwith: he believes that government must remain neutral between natural explanations of natural phenomena, and magical explanations of natural phenomena. For Beckwith, the First Amendment mandates government neutrality across the board between magical and non-magical thinking. Government simply cannot prefer one over the other. This, of course, is why he complains so often that "science is taught as exclusively materialistic and...presented as the paradigm of knowledge and rationality." (I feel moved to add that, in reality, science is these things.)
But there is nothing in the First Amendment that requires government to be consistently neutral between rational and magical understandings of the world. Indeed, it is startling to imagine what the world would be like if there were. But the government does not have to treat seriously the claims of any mystic or any crackpot who believes that the world is flat or that the earth was created in 4004 B.C. or that blacks are genetically inferior or that crystals and chanting will cure your cancer or that the Atkins diet has anything scientifically going for it. It must respect the fact that a person believes these things, and must not get in the way of such beliefs. But it can--indeed, it must--make decisions based on purely secular criteria. And it cannot make its policies based on religious beliefs. In other words, the one thing it cannot do is treat religious lobbying as the same as secular lobbying. Government may accede to secular lobbying. It may not accede to religious lobbying.* Why? Because government may "make no law respecting an establishment of religion." And if Beckwith finds that to be a "burden," that tells us much more about his relationship to the First Amendment and to religious freedom than his Legal Times article does.
*-for religious reasons, of course. Government may certainly accede to religious lobbying for secular reasons, as when it allows conscientious objectors out of the draft. Such an exception, I think, proves the rule.