Beckwith’s “burden”: the First Amendment itself

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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.

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Timothy Sandefur has an excellent post at the Panda's Thumb fisking Frank Beckwith's article in Legal Times concerning the Cobb County decision. The crux of Beckwith's argument is that the ruling "presents a Catch-22 that makes it nearly impossible for... Read More

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Beckwith’s analysis also fails to suggest why his views, which are uniquely offensive to my Christian beliefs, should enjoy government endorsement.

He starts from the assumption that he understands deity completely and all other understandings are in error. It is precisely against such hubris that the founders set up a government that wouldn’t take sides in such squabbles.

The decision means that his sect may not lobby government against science, or against my faith. That’s not a high price to pay, considering that my faith doesn’t get to lobby government against his sect, either.

Beckwith’s analysis is clouded because his goose is unhappy being in the same species with my gander. That’s not a problem the law is capable of resolving.

I hope the lawyers for Cobb County bring Beckwith on to consult for them. He really gives up the game in his “Sticker Shock” article:

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?

So, the sticker was about religious opposition to evolution after all. Beckwith appears to agree with the “reasonable observer.” Strike 1.

So it is not biological evolution per se that troubles these citizens (though it no doubt also bothers many of them). Rather, what troubles them is a materialist understanding of what counts as knowledge, a view that implicitly excludes their theological views from receiving serious respect in the institutions for which their tax dollars are confiscated and their children are required to attend if they do not bear the expense of private education.

Science doesn’t use a “materialist understanding of what counts as knowledge,” it uses methodological naturalism, for the simple reason that supernatural explanations are not testible and that science conducted in this fashion has been wildly successful. Teaching science therefore has a legitimate secular purpose, whether or not a particular religion agrees. The government certainly cannot include a particular religion’s theological views in classroom instruction – that’s the whole point of the bit in the First Amendment about the government not establishing religion. Strike 2.

Third, although “evolution is a theory, not a fact” has its genesis in the literature published by creationists…

Beckwith yet again agrees with the reasonable observer! Strike 3, you’re out!

Dr. B writes

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.

The two key words in the above passage: “they believe.”

I am happy to see those words because they impart at least the whiff of an attempt by Beckwith to be honest about what’s going on between the Johnsonite Christians and public schools.

Given those two words, I tend to agree with Beckwith’s assessment. For the Johnsonites, there is a Catch-22. The Catch-22 is that generally speaking our legal system, like science, is biased towards measuring the weight of “natural” facts about the world. Judges do not care – or at least they can not pretend to care – about what a deity might have told someone regarding the veracity or reliability of the opposing party.

Because no reasonable person in 2005 can question the fundamental principles underlying evolutionary theory and be taken seriously, the Johnsonites are doomed to lose in their quest to redefine science.

They are in a Catch-22 situation in the same way that a person who believes he is a bird is in a Catch-22 situation when he keeps getting arrested trying to climb telephone poles in the nude.

What arrogance to boldly claim that widely recognized facts about life on earth are “uniquely hostile” to one’s creation mythos! In fact, Dr. Beckwith, every one of the creation stories of every religion that has ever existed has been rendered null and void from the viewpoint of science. Furthermore, science has shown that the ritual eating of human brains can be hazardous to one’s health (obviously, the latter is nothing more than Leftist propoganda and discrimination). The goal of science is not to debunk religious beliefs (although if the belief can be debunked, there is no better tool). The goal of science is to try to understand the natural world and explain observations scientifically.

The Johnsonite’s offense is akin to my claiming offense that Frank Beckwith drinks bottled water, according my religion, anyone named Frank Beckwith who drinks bottled water is destroying the planet. I guess that I and millions of others like me would be in a “Catch-22” when we go to court to seek an injuction to end Frank Beckwith’s “uniquely hostile” behavior.

If anyone has any doubt that this diseased logic is limited to crying about evolutionary biology, look no further than the Johnsonite sect’s approach to gays in this country. According to these misguided paper-skinned anti-Christian “Christians”, the mere public presentation of a gay person without a disclaimer is “offensive” to their “beliefs”! Likewise, pleas for the tolerance are treated as insensitive attempts to hinder indoctrination of “beliefs” about gay evilness to their children.

The American public is going to put two and two together and it’s going to equal four. The Johnsonites will still claim that the answer is five but they will find that fewer and fewer people are interested in reciting from that script or listening to it. It was never very funny or clever to begin with.

I can’t help but be reminded of the old white supremacist argument that whites deserve to have a place of superiority over other races, and therefore any government policy that fails to actively promote white interests versus other interests is discriminatory and oppressive against whites. Evidently some people’s Christianity is the new supremacist movement–if a government institution fails to actively promote a pro-Christian agenda, it is thereby oppressing and discriminating against Christianity. To make government policy “fair and balanced” by that standard is to implicitly establish Christianity as officially superior to all other beliefs, in direct violation of the First Amendment.

Let’s look at a not-so-hypothetical situation outside of science for a moment. Assume that the so-called World Church of the Creator (Matthew Hale’s neo-Nazi “church” that advocates preservation of the “white race” at the expense of everyone else) has several of its citizens write to a local school board, asking that the following sticker be placed in US History textbooks:

Racial equality is a theory, not a fact. You should consider all aspects of race relations with an open and skeptical mind.

My point is this: Science is the most obvious battleground for the church-in-school issue; but it’s not the only one. Perhaps this is merely another example of the “wedge” phenomenon. I chose a particularly ridiculous example because one can point to individuals (and even “scientists”) who provide some authority for the proposition in question. As much as the so-called Bell Curve has been discredited, it still exists as a book; so do all of those texts musing on the “Sons of Ham”; so, for that matter, does the WCC’s own doctrine.

The problem is not a “pro-Christian” agenda in any general sense. It is the imposition of a particular dogma from within Christianity that actively excludes the beliefs and practices of many other Christians.

I’d actually agree with Beckwith that “nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs,” but only due to the peculiar beliefs of those particular citizens. After all, though the content of the sticker was misleading at best, there’s nothing more benignly religious they could have substituted. That was the most bland and vague language possible.

But yet, it is precisely because of the anti-evolution crowd’s beliefs, biblical literalism, that they fail. Their beliefs simply don’t jive with a secular State, and nothing will ever appease them. So, while Beckwith’s statement above is true, it’s also irrelevant to the law.

I guess for some, Caesar is still out to get them.

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.

In the warped mind of fundamentalists, public schools already promote a “religion” – Secular Humanism. At least that used to be the “argument” they made on behalf of “equal time.” Not sure what crap their selling these days, though.

Beckwith … complains so often that “science is taught as exclusively materialistic and because it is presented as the paradigm of knowledge and rationality.”

Maybe Mr. Beckwith can propose a way to perform science non-materialistically. He’d be the first to do it. But we all know that the proposition itself is absurd.

As folks have suggested, some people have bizaare beliefs and we can’t really accomodate them in an educational setting. Consider some practical applications: Should the FDA endorse coffee enemas for curing cancer? (Perhaps they should only “make people aware” that these alternative cures are available, and that the standard procedures have gaps in their efficacy.) Should the government try to regulate adverse environmental impacts, or just not bother because the Rapture is coming any day now?

The Creationists/Religious Right types in this situation always cause me to remember the updated law from the end of Orwell’s Animal Farm “ALL ANIMALS ARE EQUAL BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS”, but inserting “religion” for animals.

Also from my observation RR types always accuse you of “promoting” something unless you are totally in agreement with them. i.e., just mentioning homosexuality with adding that “God will smite you and have you roast forever” unless you condemn it like them.

Dr. Beckwith Wrote:

They want public schools to teach the children of their community that it is rationally permissible to entertain doubts that materialism is the whole story of the order and nature of things.

OK, correct me if I’m wrong, but “entertain[ing] doubts that materialism is the whole story of the order and nature of things” sounds to me like a pretty good definition of religion. So they want (their) religion to be considered rational. I’m sorry, religion is *not* rational. So what? Human beings are not completely rational. Get over it! Science, however, *is* rational, at least in the ideal form that scientists strive for. The self-correcting methodological practices of science exist in order to compensate for the fact that it is being practiced by non-rational humans. No one is asking students of science to become completely rational Vulcans and sacrifice their humanity, but science actually works for the betterment of the human condition so that we have the means and the freedom to uphold all of the non-rational stuff that makes life worthwhile. Voters in a democracy need to make informed decisions about the results of science, and failing to understand science means that they can be easily mislead by people with all sorts of agendas. Hey, wait a minute, that sounds familiar…

Timothy Sandefur Wrote:

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.*

*-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.

I would quibble with the statement that “it must make decisions based upon a purely secular criteria.” “The Government” is just a way of representing the collective will of the citizens. If enough people convince their representatives to pass a particular law, then that “decision” will be made regardless of whether the motivations were secular or not.

The Lemon Test requires that all legislation have a secular purpose. Therefore the government must make decisions based upon a purely secular basis.

I’m not sure what Mike S.’s point is. It’s true that government (as Washington is reputed to have said) is not reason, but force, and that if enough people convince their representatives to ignore the Constitution, that the representatives will do so—they do this all the time. But the theory of the American Constitution is that the Constitution itself represents the highest form of popular will—a different, more permanent popular will than the temporary and fleeting will of a particular legislature. So when the particular legislature violates the Constitution, it cannot be said to be acting in accord with the will of the people; rather, it is acting in accord with a temporary popular passion. “[T]he Constitution,” writes Hamilton, “ought to be preferred to the statute, the intention of the people to the intention of their agents.” In this case, the First Amendment limits the government to the conduct of secular affairs; it has no part in religious affairs. Thus, while it’s true that a popular passion might drive the legislature to ignore that rule, doing so is unconstitutional, and is thus force, not law.

Aggie Nostic writes “[ i]n the warped mind of fundamentalists, public schools already promote a ‘religion’—Secular Humanism. At least that used to be the ‘argument’ they made on behalf of ‘equal time.’” That’s right. I wrote about that argument in this post.

Great White Wonder says “[w]hat arrogance to boldly claim that widely recognized facts about life on earth are ‘uniquely hostile’ to one’s creation mythos!” It is indeed arrogant to demand that the government make policy around one’s “creation mythos.” Nothing in the Constitution requires it to do so. Here, I think, Prof. Beckwith is committing the common fallacy of confusing the Constitution’s prohibitions for requirements. The First Amendment only tells the government to leave people alone. That is all—to allow people the free exercise of their religion, and to avoid forcing religion on them by an establishment. The First Amendment does not require the government actually to do anything—only to leave people alone. The perspective of many religious conservatives is that their religious views require them to employ the government to accomplish certain objectives (i.e., preaching)—and that when the government fails to do so, it is violating their “right” to employ the government as part of a religious mission. Beckwith commits a similar fallacy by seeing the principle of neutrality (which is a slippery concept to begin with, as I’ve already stated)—by, I say, seeing the principle neutrality as positive claim on government to do something. By confusing negative and positive rights claims, Prof. Beckwith sees it as a threat to religious toleration when the government fails to give certain special privileges to the religious feelings of a particular faction. (I blogged about a similar argument here.) But as Justice Douglas said, “the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring).

Mike S. Wrote:

“The Government” is just a way of representing the collective will of the citizens. If enough people convince their representatives to pass a particular law, then that “decision” will be made regardless of whether the motivations were secular or not.

Well, not really. Although technically legislatures can pass whatever laws they like in the strictest sense, if those laws are unconstitutional when they were passed (i.e. without a primarily secular purpose), it’s a short semantic walk to conclude that legislatures can not actually pass whatever laws they like.

It would probably keep the issues clearer by saying that the legislature may pass whatever enactment it likes, but if these enactments violate the constitution (and thereby exceed the legislature’s legitimate authority) these enactments are not laws, but merely enactments. It is for this reason that a legislative enactment which exceeds the legislature’s power, and which then violates the rights of an individual, can be said to deprive that person of liberty without due process of law, because such an enactment is merely force, and not law. Is that clear? When government is perverted into a weapon for giving powerful parties their desires for no public reason but only for the private aggrandizement of the politically powerful, then what it is doing is not law, but merely force–just as when an individual robs somebody with a gun.

I explained this concept in greater depth in my post, “What Is Substantive Due Process, Really?

For verily I say unto you, That whosoever shall say unto this mountain, Be thou removed, and be thou cast into the sea; and shall not doubt in his heart, but shall believe that those things which he saith shall come to pass; he shall have whatsoever he saith. Therefore I say unto you, What things soever ye desire, when ye pray, believe that ye receive them, and ye shall have them. (Mark 11:23-24)

I demand a sticker that says, “This textbook contains material on Newtonian physics. The First Law of Thermodynamics is a theory, not a fact, regarding the conservation of energy. This material should be approached with an open mind, studied carefully and critically considered.”

Beckwith need not be alarmed. Regardless of whether “evilution” is supposed to be in the curriculum in public schools, apparently it is often not being taught, according to an article in this morning’s NYTImes:

>Evolution Takes a Back Seat in U.S. Classes

(snip)

>Teaching guides and textbooks may meet the approval of biologists, but superintendents or principals discourage teachers from discussing it. Or teachers themselves avoid the topic, fearing protests from fundamentalists in their communities.

More at http://www.nytimes.com/2005/02/01/s[…]e/01evo.html

These “culture war” issues will likely lead to the end of public education in the US. People on your side of the culture war (and I’m on that side, too) should be prepared for it. In many areas, fundamentalists are getting their way. Not by getting creationism/ID taught along with evolution, and not by stickers, but by mau-mauing the public schools not to teach “evilution.” And there isn’t much that people on your side of the culture war can do about that.

So, Beckwith is clearly wrong when he says that decisions like the one in Cobb County leave fundamentalists out in the cold. And he misses the point that those decisions leave them (the fundamentalists) with no way to influence public policy regarding public education. They certainly have–influenced public policy, that is.

Kevin Wrote:

Although technically legislatures can pass whatever laws they like in the strictest sense, if those laws are unconstitutional when they were passed (i.e. without a primarily secular purpose), it’s a short semantic walk to conclude that legislatures can not actually pass whatever laws they like.

Obviously, there are laws that would be (or are) unconstitutional, such as, “The only legal religion is Presbyterianism.” There are other laws that obviously aren’t addressed by the U.S. Constitution, such as “You cannot park your car here from 6AM to 10AM Mon. thru Fri.” And there are many laws where a) we argue about whether the U.S. Constitution applies or not, and b) how it applies to the particular law. I’m sure Timothy knows the legal history better than I do, but we’ve been debating the meaning of the establishment clause since the beginning of the Republic, have we not? And hasn’t our understanding of establishment of religion changed over time? You may be clear about how you define establishment, but that doesn’t automatically mean that your definition is correct and/or permanent. The question is whether any law passed that doesn’t have an explicit secular rationale violates the establishment clause. I think this is an extremely strict standard, and not consistent with our legal and political history.

Timothy Sandefur writes, “The First Amendment does not require the government actually to do anything—only to leave people alone.” That sounds simple enough, but what about the cases where various Christmas displays have been ruled out-of-bounds (even poinsettias!)? Nobody made a law saying that a creche or a Christmas tree had to be placed in such-and-such a place (e.g. the Town Hall), it was just traditional to do so. Then someone decides that he/she is offended by such a display and files a lawsuit. Now who is leaving whom alone? And who is the minority (often, a very small minority) forcing the government to do something to cater to their religious sensibilities? We can get further into the weeds about defining what “the government” is when the legislative, executive, and/or judicial branches disagree, but the point is that the strict application of the ‘secular rationale’ rule doesn’t always lead to reasonable results.

I’ll have to read up more on the Lemon test, but it seems to me that whatever it says, it must ultimately be an interpretation of the establishment clause. Since the Constitution doesn’t spell out what, precisely, constitutes establishment, it ultimately has to be a subjective definition. It might be reasonable, and even if it isn’t it may be the current legal standard, but that doesn’t mean that it is ‘correct’ in some absolute sense.

Mike, your proposition that the establishment clause has “changed” is true only in the sense that the Court has reacted to new facets of society. If you’re holding your breath for the Court to rub out the last 100 years of jurisprudence on establishment in public schools, I’d quit now.

The “understanding” establishment in the last 20th Century actually hasn’t changed much, though the expression clause has quite a lot. After that first, early step of extending it to state governments, it was just a matter of refining the boundaries. Establishment issues in the public school arena have maintained a fairly consistent track, by my reckoning, but are fairly recent– they don’t appear until the early 20th century because mandatory public schooling is about that new. In any case, the current state of affairs is fairly set.

Note that the Lemon case states

Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment.

Also note that part of the Lemon test requires determining if the entanglement is excessive, which is obviously a subjective matter.

I’m not arguing that the boundaries are unclear with regard to evolution in science classrooms - I was responding to the blanket statement that Timothy made about government decisions needing to be secular.

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This page contains a single entry by Timothy Sandefur published on January 31, 2005 9:46 PM.

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