More on neutrality

The comments to my earlier post on neutrality suggest that I have not been entirely clear. Matt Brauer says that “the issue is of the state ‘preferring’ rationality to non-rationality, as it should.”</b> I agree it ought to. But if we’re talking about the Constitution, then we aren’t talking about what the state ought to do; we’re talking about what the state may or must do. The state certainly ought to prefer rationality. But the First Amendment, even as incorporated to the states through the Fourteenth, does not clearly say that the state must do that; indeed, it doesn’t even clearly say that the state may do that.

(Quickly, for the non-lawyers: The First Amendment, as originally written, only prohibited the federal government from interfering with state religious establishments–it was written to allow states to have established churches. It also prohibited the federal government from interfering with the free exercise of religion. The Fourteenth Amendment, passed in 1868, is said to have “incorporated” the Bill of Rights to the states–that is, courts (more or less) interpret the Fourteenth Amendment as saying that states are not allowed to do the things that the federal government wasn’t allowed to do under the Bill of Rights. As Justice Thomas pointed out in his concurrence in Zelman, however, and as Prof. Amar has written in his Bill of Rights,</a> the Establishment Clause applies very clumsily to the states, since it was written precisely so as to not apply to the states! It was not applied to the states until Everson,</i> in the 1940s.)

Does the First Amendment, as incorporated to the states, require, or allow, states to choose rationality over non-rationality? Well, the Establishment Clause does limit the state’s choices. The state may not choose certain categories of non-rationality over others. At least some Justices believe that the Establishment Clause prohibits “not only the institution of an official church, but any government act favoring religion, a particular religion, or for that matter irreligion.” </b>Mitchell v. Helms, </i>530 U.S. 793, 867-68 (2000) (Souter, Stevens, Ginsburg, JJ, dissenting) (emphasis added). See also Capitol Square Review and Advisory Bd. v. Pinette,</i> 515 U.S. 753, 798 (1995) (Stevens, J., dissenting). This would seem to be the logical extension of Epperson v. Arkansas, </i>393 U.S. 97, 103-04 (1968), which said that “[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” This would suggest that the state may not distinguish between epistemologies based on reason and experiment, and epistemologies based on faith and revelation. So how can it distinguish between evolution and creation? Courts and commentators have answered this by saying that evolution isn’t “nonreligion,” so the state doesn’t have to treat it as equal to religion. For instance, in the comments to my original post, Doug G. says that “science is [not] just another philosophy, but rather a legitimate means of determining truth. . .. If there can be ‘good’ and ‘bad’ science for the purposes of its use in a law suit, then the Court is saying that one is more likely to represent the ‘truth’ and is a reasonable basis on which to judge the issue at hand.” That’s an attractive argument–and it’s the one that the courts have adopted. See, e.g., McLean v. Bd. Of Ed., 529 F. Supp. 1255, 1267-68 (D. Ark. 1982). But I am not satisfied with it because I think it begs the question. What we’re asking is, may the state prefer science over religion as “a legitimate means of determining truth”? Under Daubert and other cases, the answer is clearly yes–but under Ballard and other cases, the answer is clearly no.

May the state prefer–or, if you will, “establish”–rationality as the basis of its policies? As Rev. Lovejoy says on the Simpsons, “long answer yes with an if; short answer no with a but.” While it is certain that the state ought to prefer rationality to non-rationality, it is not clear that the Constitution requires it to do so; and it is clear that it does not have unfettered discretion to do so. The state may require parents to have their children vaccinated, despite the parents’ religious views. Jacobson v. Massachusetts,</i> 197 U.S. 11 (1905). It may get a court order to require blood transfusions even where the parents, as Jehovah’s Witnesses, believe that this is sinful. In the Matter of Cabrera, 552 A.2d 1114 (1989); Jehovah’s Witnesses v. King’s County Hosp., 278 F. Supp. 488, 504 (W.D. Wash. 1967), aff’d, 390 U.S. 598 (1968). But it may not require a pregnant woman to take a transfusion against her religious views for the benefit of her unborn fetus, In re Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997), or find, as a matter of tort liability, that a party’s refusal of medical treatment on religious grounds was unreasonable. Williams v. Bright, 632 N.Y.S.2d 760, 766 (Sup. Ct. 1995) (“If the Jehovah’s Witness rejection of blood transfusion in surgery is deemed by a jury to be ‘unreasonable,’ then a judgment has been made as to the soundness of the religion…. The making of such a decision is clearly beyond the scope of what any agency of government may do.”).

This is why I don’t think the question can really be answered by saying, as Tom Clark does, that “science. . .simply seeks to explain phenomena in ways that are maximally predictive and unifying. . .. [I]t’s a method of explaining the world, and not the only one available. . ..” Quite true–but may the state adopt that method of explaining phenomena? carrie says that “[t]here is no science ‘worldview,’ only falsifiable theories that have been tested using this method (always subject to revision!).” Granted, but this still begs the question. We are confronted with people who assert that the Constitution requires the state to view the scientific method and non-scientific epistemologies like faith and revelation as equally valid. What legal grounds do we have to refute that? And what are the implications of refuting it?

I come down on the side of saying that the Establishment Clause does allow states to rely on science as the proper method for determining the truth. I think that is the only common-sense solution–the creation of schools itself embodies a government preference for rationality over irrationality. But I think that position requires me to say that Ballard should be overruled. And just think what that would mean: someone files a lawsuit against a faith healer for fraud; the plaintiff’s attorney introduces the results of various experiments performed on the effectiveness of faith healing; this evidence establishes that faith healing is baseless; the court finds liability. That would establish a precedent very dangerous for religious freedom: some wacko atheist in California could file a lawsuit under Business and Professions Code §17200–which prohibits all “unfair” business practices–against the Catholic Church on the grounds that priests do not actually do anything during mass; that transubstantiation and confession and the rest is all a big lie–well, I think it clear that this could lead to the eradication of religious liberty, something to which I would be very much opposed.

So how can the Constitution allow the state to give blood transfusions to the children of Jehovah’s Witnesses–which obviously embodies a government endorsement of rationality over irrationality–while simultaneously prohibiting the state from inquiring into the validity of confession and transubstantiation? The answer the courts have devised is to draw a distinction between the rationales for these two positions–the blood transfusions case is about science, and the transubstantiation case is about religion. This allows us to adopt a seemingly a-religious grounds for teaching students the scientific method but not religious faith. See, e.g., McLean, 529 F. Supp. at 1267-69 (defining science and finding that creationism is not science). See also Eugenie Scott, Creationism, Ideology, And Science, in Paul R. Gross, et al. eds., The Flight from Science And Reason 505 (1996) (“teachers [must] distinguish between where science leaves off and where philosophy begins.”) As I’ve explained, I think this distinction is flawed–because there is no point at which science leaves off and philosophy begins, at least not if philosophy is to avoid mysticism. See Daniel Dennett, Darwin’s Dangerous Idea 21 (1995) (“There is no such thing as philosophy-free science; there is only science whose philosophical baggage is taken on board without examination.”) But I do not know what legal substitute I would offer to the courts. What I would like is a “fundamental explanation of the realm.” See Robert Nozick, Anarchy, State And Utopia 19 (1974) (“Fundamental explanations of a realm are explanations of the realm in other terms; they make no use of the notions of the realm… [T]he less our explanations use notions constituting what is to be explained, the more…we understand.”): How can we defend a policy of teaching the scientific method, when the other side flies to a higher strain and answers that the state is constitutionally required to treat the scientific method itself as no more valid than dogma? That is the deepest side to this debate.

(Deep breath…) Now, having said all of that, I don’t think it’s necessary to resolve any of it for the purposes of the controversy over creation “science,” including ID. Advocates of creationism claim to be defending science. Thus, the state has decided to teach science, and all sides have stipulated to its decision to do so. So, once that decision is made, I think it’s obvious that the state has the right to teach only actual science.

Hm…This is why people hate lawyers, isn’t it?