Non-lawyer Joseph M. Knippenberg of the Ashbrook Center has posted this article attacking the Kitzmiller decision on the grounds that it represents "hostility" to religion. I've pointed out many times that this accusation of "hostility" is generally just a complaint by people who believe that their religious freedom entitles them to use the government for their religious purposes, which is not correct. Freedom only means that we have the right to do what we want on our own time and with our own money; it does not include the right to use other people's money or infringe on other people's rights. Religious freedom does not include your right to use the government's school system to teach religion to people. When the court stops you from doing so, that is not "hostility," despite Dr. Knippenberg's claims to the contrary.
Knippenberg starts his post, understandably, by quoting the Dover ID disclaimer. But he then contends that since "the Board's statement doesn't explicitly mention, let alone endorse, religion," it therefore cannot violate the Establishment Clause. Of course, this is the kind of argument-from-superficiality that the Supreme Court has rightly rejected time and time again. As the great Justice Stephen Field once put it,
what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation...under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1866). In religion cases, the Court has been particularly keen on avoiding silly formalism, and has held that even a law that appears on its face to be religiously neutral, can violate the Establishment Clause if it discriminates in substance. "[T]he Establishment Clause extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," and "covert suppression of particular religious beliefs...." [It] protects against governmental hostility which is masked, as well as overt." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (citations omitted). Courts will therefore look behind a law to see if it is, in reality, enacted for unconstitutional reasons. In Hialeah, a law prohibiting the killing of animals in certain circumstances, which might have been seen as a legitimate public health law, was in fact a religiously motivated attempt to curtail religious animal sacrifice, and was unconstitutional. In Kitzmiller, Judge Jones found overwhelming evidence to support the conclusion that, like the law in Hialeah, the Dover ID policy was adopted for religious reasons despite whatever facial neutrality it might have.
Knippenberg acknowledges that "[o]ne's sole purpose in enacting a piece of legislation or pursuing a policy cannot be to promote a purely religious point of view," but complains that the Dover ID policy was not such an instance. There are secular reasons, he says, for adopting that policy, and therefore it ought to be upheld. Of course, this is not correct: the argument that species today are the product of a supernatural creation is a religious argument, no matter what it chooses to call itself. Knippenberg argues that the argument for design "is an argument from reason," but of course it is not. Positing a supernatural cause is not an argument from reason, but an argument from faith, since it depends necessarily on an Entity which is beyond nature and beyond comprehension. Still, this is not relevant. The Constitution, after all, does not make a distinction between the state endorsing a religious viewpoint for "religious" reasons as opposed to endorsing a religious viewpoint for purportedly "rational" reasons. It makes it illegal for the government to engage in any act "respecting an establishment of religion." That means, the government may not take any official position on the existence vel non of a godhead, whether that position is based on faith, loyalty, patriotism, algebra, indigestion, romantic longing, artistic inspiration, or political expediency. It is simply irrelevant for First Amendment purposes whether the ID disclaimer was supported by "a rational argument, in principle accessible to anyone who has reason." The Constitution forbids the state from making such arguments, or any arguments, to students supporting the existence of God.
Then Knippenberg engages a straw man. The Kitzmiller case, he claims "mean[s] that one could not teach the history and philosophy of science as part of a high school science curriculum without running afoul of the First Amendment." Of course, the decision makes no such claim. Schools are perfectly free, both before and after the decision, to teach students that people once believed that the origin of species was attributable to supernatural causes. They may even teach students that people still believe that the origin of species is attributable to supernatural causes. What they may not do is teach them that the origin of species is attributable to supernatural causes. This proposition is so clear, and has been restated so many times in the decisions on this subject, that it is discomfiting to run into it time and time again. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 593-94 (1987).
Knippenberg mischaracterizes Kitzmiller in an indefensible way:
This, then, is where Judge Jones would leave us: the fact that religious people agree with a rational argument is sufficient to make that argument religious and, consequently, to make it impermissible for a school board even to suggest it as an alternative to widely-held scientific orthodoxy. An argument that does not demand, but simply permits one to supply, a religious conclusion is religious and hence impermissible.
Only Phyllis Schlafly could have done a better job of misrepresenting what the case actually decided. Kitzmiller does not, in any way, suggest that religious people agreeing with a rational policy makes that rational policy into an impermissible religious viewpoint. Nothing like that happened in Dover. What Kitzmiller says is that there is no such thing as a scientific theory of Intelligent Design---a conclusion for which the trial judge describes a compelling amount of evidence; it is instead a religious viewpoint masquerading as science, and a religiously motivated school board sought to promulgate that viewpoint in government-run schools. This is unconstitutional, because the First Amendment prohibits the government from teaching that a religious viewpoint is true. If Dr. Knippenberg is going to accuse people of "disingenuousness," perhaps he should ponder the beam in his own eye.
Not satisfied with blatantly mischaracterizing (or at least, misunderstanding) what the decision actually holds, Knippenberg proceeds to adopt the old ID canard that teaching science in a government school science classroom is somehow an establishment of religion. "We can establish and protect scientific orthodoxy, but not religious orthodoxy," he complains. But there are two fundamental problems with this.
First, nobody objects to teaching genuine scientific controversies as such. The problem is that evolution is simply not a scientifically controversial matter, and teaching evolution as true is not "protecting" an "orthodoxy," any more than teaching students that the earth orbits the sun, or that human babies are not delivered by a stork. If a school were to teach these "alternatives," it might might very well be described as "unorthodox," but these "theories" do not deserve any serious attention because they are not scientific theories; they are simply untrue. To bar them from the classroom isn't censorship---it's responsible science education.
Second, and most importantly, there is no constitutional prohibition on teaching what Knippenberg calls "scientific orthodoxy." Government schools are free to teach a lot of things, including things that we might wish they wouldn't teach. Such schools are even constitutionally allowed to lie to children. But what they are not allowed to do is to teach children that a religious viewpoint is true. Religion is simply off limits. Religion is treated differently by the Constitution than are anything else, for solid historical and political reasons.
Knippenberg's mischaracterization of the decision, and his adoption of tired old fallacies (teaching science is establishment! it's hostility to not let me use the government to teach my religion!) should suggest to us the tremendous vacuum that makes up the argument supporting ID.