Update on South Carolina

Comment #75294

Posted by Larry Fafarman on January 24, 2006 08:12 AM (e)

The Dover opinion did not rule that irreducible complexity is a religion — the Dover opinion only ruled that irreducible complexity had been refuted in peer-reviewed research papers and had been rejected by the scientific community at large. But that is not constitutional grounds for banning irreducible complexity from public-school science classes. There is only a constitutional separation of church and state. There is no constitutional separation of scientific error or pseudoscience and state.

IC is to ID as Mass is to Catholicism. It’s not, per se, the religion. But it is, part-and-parcel, part of the religion.

With the possible exception of Kitzmiller v. Dover, I could find no court opinion that ruled that evolution is genuine science. All I could find was a ruling that evolution is not a religion (McLean v. Arkansas Board of Education) —- but that could still mean that evolution is a pseudoscience or scientifically erroneous.

Actually, I think there was. A teach in CA filed suit saying that being forced to teach evolution violated the First Amendment.

John E. PELOZA v. CAPISTRANO UNIFIED SCHOOL DISTRICT

Nos. 92-55228, 92-55644.

United States Court of Appeals, Ninth Circuit.

I. The Section 1983 Claim

A. The Establishment Clause

[1] To withstand an Establishment Clause challenge(2), a state statute, policy or action (1) must have a secular purpose; (2) must, as its primary effect, neither advance nor inhibit religion; and (3) must not foster an excessive government entanglement with religions. Lemon V. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d,745 (1971).

Peloza’s complaint alleges that the school district has violated the Establishment Clause “by pressuring and requiring him to teach evolutionism, a religious belief system, as a valid scientific theory.” Complaint at 19-20. Evolutionism, according to Peloza, “postulates that the ‘higher’ life forms … evolved from the ‘lower’ life forms … and that life itself ‘evolved’ from non-living matter.” Id. at 2. It is therefore “based on the assumption that life and the universe evolved randomly and by chance and with no Creator involved in the process.” Id. at 1. Peloza claims that evolutionism is not a valid scientific theory because it is based on events which “occurred in the non-observable and non-recreatable past and hence are not subject to scientific observation.” Id. at 3. Finally, in his appellate brief he alleges that the school district is requiring him to teach evolutionism not just as a theory, but rather as a fact.

[2] Peloza’s complaint is not entirely consistent. In some places he seems to advance the patently frivolous claim that it is unconstitutional for the school district to require him to teach, as a valid scientific theory, that higher life forms evolved from lower ones. At other times he claims the district is forcing him to teach evolution as fact. Although possibly dogmatic or even wrong, such a requirement would not transgress the establishment clause if “evolution” simply means that higher life forms evolved from lower ones.

Peloza uses the words “evolution” and “evolutionism” interchangeably in the complaint. This is not wrong or imprecise for, indeed, they are synonyms.(3) Adding “ism” does not change the meaning nor magically metamorphose “evolution” into a religion. “Evolution” and “evolutionism” define a biological concept: higher life forms evolve from lower ones. The concept has nothing to do with how the universe was created; it has nothing to do with whether or not there is a divine Creator (who did or did not create the universe or did or did not plan evolution as part of a divine scheme).

[3] On a motion to dismiss we are required to read the complaint charitably, to take all well-pleaded facts as true, and to assume that all general allegations embrace whatever specific facts might be necessary to support them. Lujan V. Nat’l Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990); Abmmson V. Brownstein, 897 F.2d 389, 391 (9^th Cir.1990). Charitably read, Peloza’s complaint at most makes this claim: the school district’s actions establish a state-supported religion of evolutionism, or more generally of “secular humanism.” See Complaint at 24, 20. According to Peloza’s complaint, all persons must adhere to one of two religious belief systems concerning “the origins of life and of the universe:” evolutionism, or creationism. Id. at 2. Thus, the school district, in teaching evolutionism, is establishing a state-supported “religion.”

We reject this claim because neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are “religions” for Establishment Clause purposes. Indeed, both the dictionary definition of religion(4) and the clear weight of the case law(5) are to the contrary. The Supreme Court has held unequivocally that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not. Edwards V. Aguillard. 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (holding unconstitutional, under Establishment Clause, Louisiana’s “Balanced Treatment for Creation-science and Evolution-Science in Public School Instruction Act”).

Peloza would have us accept his definition of “evolution” and “evolutionism” and impose his definition on the school district as its own, a definition that cannot be found in the dictionary, in the Supreme Court cases, or anywhere in the common understanding of the words. Only if we define “evolution” and “evolutionism” as does Peloza as a concept that embraces the belief that the universe came into existence without a Creator might he make out a claim. This we need not do. To say red is green or black is white does not make it so. Nor need we for the purposes of a 12(b)(6) motion accept a made-up definition of “evolution.” Nowhere does Peloza point to anything that conceivably suggests that the school district accepts anything other than the common definition of “evolution” and “evolutionism.” It simply required him as a biology teacher in the public schools of California to teach “evolution.” Peloza nowhere says it required more.

The district court dismissed his claim, stating:

Since the evolutionist theory is not a religion, to require an instructor to teach this theory is not a violation of the Establishment Clause.… Evolution is a scientific theory based on the gathering and studying of data, and modification of new data. It is an established scientific theory which is used as the basis for many areas of science. As scientific methods advance and become more accurate, the scientific community will revise the accepted theory to a more accurate explanation of life’s origins. Plaintiffs assertions that the teaching of evolution would be a violation of the Establishment Clause is unfounded.

Id. at 12-13. We agree.

In the legal world, they’d call this a “slam dunk.” And you’d be the dunkee…