Casey Luskin has an article in the Liberty University Law Review which he claims isn’t about Intelligent Design creationism, but is instead meant to show how “zeal for Darwin encourages certain violations of the Establishment Clause.” It will come as no surprise to anyone that Luskin’s argument is flimsy, his evidence illusory, his readings of the case law distorted, and the overall effect essentially a fun-house mirror version of First Amendment law.
Luskin’s thesis is that criticizing Intelligent Design creationism = attacking a religious viewpoint. He combines this with an insistent denial that ID is a religious viewpoint, which is an amusing effort to stick to the Discovery Institute party line, but is not, strictly speaking, illogical. His position is that, if we assume the fact (which is a fact, but he assumes, rather than believing it) that ID creationism is a religious viewpoint, why, then, it violates the First Amendment to disparage it: “Sylvia Mader’s 2007 introductory biology textbook, Essentials of Biology…plainly communicates that ID runs counter to the factual scientific data,” he writes. “If she is correct that ID is a religious viewpoint, is it appropriate for state schools to use her textbooks that unambiguously claim ID is empirically wrong?”
The correct answer is, yes, it’s perfectly constitutional and perfectly appropriate–but of course, to Luskin, the answer is no: “Students who support scientific creationism would thus hear that their ‘set of religious beliefs’ is not only an ‘arbitrary faith,’ but that they are not using their ‘God-given gifts to reason and to understand’ in the way God intended. While many might agree with such arguments, religious neutrality forbids the government from attacking, opposing, and disapproving of such a ‘set of religious beliefs’ in this fashion.”
This is false. The neutrality requirement in the First Amendment forbids the government from taking a position on the truth or falsehood of a religious doctrine in religious terms, but it may take a position on any matter on areligious or non-religious terms. That is, the Constitution forbids the government from endorsing or propagating or censoring the doctrinal truth of a religious proposition, but it does not forbid the government from endorsing or propagating the factual truth of a proposition, even if those propositions turn out to be the same in content. It does not forbid the government from reaching a conclusion, and stating or endorsing that conclusion, from secular premises, even if that conclusion happens to clash with someone’s religious view. Government may not take religious positions, but it take secular positions that happen to clash with positions endorsed by a religious viewpoint.
This ought to be plainly obvious. Some people, for example, believe that AIDS is a punishment sent from God to scourge sodomites, or that blacks are inherently inferior to whites, or that ancient Indian tribes descended from Israelites and fought wars in chariots, or that earthquakes express Vulcan’s displeasure at man’s hubris.* The First Amendment forbids the government from taking any official doctrinal positions on these matters–but it does not forbid, and could not possibly forbid the government from teaching that, in fact, AIDS is caused by a virus, that blacks are not inferior to whites, that American Indian tribes have no relationship to the Israelites and lacked chariots, and that earthquakes are caused by geological activity. The First Amendment does not forbid the government from saying that there is no documentary evidence (or no fossil evidence or no eyewitness evidence) for P, even though P falls within a religious doctrine–and the Amendment cannot sensibly read to require this, because it would make all communication and all activities impossible. The most arbitrary claims would be insulated from challenge, and each person would have a heckler’s veto over government’s actions–the more irrational and mystical, the better.
To put it a bit more technically, if proposition P can be supported by religious argument R and also by secular argument S, government is entirely within its constitutional authority to take an official position on P on the basis of S. In fact, it’s even entitled to throw people in jail for P. But it may do nothing whatsoever on the basis of R. It may not support or oppose or endorse it. That’s why the government can make it illegal for people to use intoxicating drugs–even if they do so for religious purposes–but why it may not prosecute faith healing, even though faith healing is obviously fraudulent bunk.
Now, let’s play “name that logical fallacy” (to steal from our friends at the Skeptic’s Guide): “[E]ither ID is a religious viewpoint that is unconstitutionally opposed, inhibited, and disapproved when this textbook is used in public schools,” writes Luskin, “or ID is not a religious viewpoint and is thereby fair game for all forms of government-sponsored attacks, disparagement, hostility, as well as endorsement.” This is all very clever, no doubt–it is, as Lincoln once said, the kind of logic whereby a horse chestnut turns out to be the same thing as a chestnut horse. It’s the fallacy of the false dichotomy. In fact, ID is a religious viewpoint masquerading as a scientific theory–it is a religious position which is layered in factually untrue or arbitrary assertions. Government is entirely free to denounce the factually untrue statements and explode those arbitrary assertions. No, it cannot say that God does not exist, and it cannot say that man was not created by God through some guided process. On that, Luskin is correct. But government violates no law when it says (and rightly) that there is no factual basis for ID’s scientific claims.
It’s amazing that Luskin can get 88 pages out of this silliness–even if it is through Liberty University. But the bottom line is this: government may inhibit (short of censorship or compelled speech), oppose, and disapprove of any factual proposition whatsoever–including factual propositions that religious groups have taken a position on–so long as it does so from a secular background.
*–Update: I feel so bad. Vulcan was not the god of earthquakes; that was Poseidon/Neptune. I did not mean to denegrate, oppose, or disapprove of this non-materialistic explanation of earthquake generation, and I sincerely apologize to all members of the Supreme Council of Ethniokoi Hellenes.