Beckwith's Reply on the Establishment Clause Posts

Francis Beckwith has posted a more well thought-out response to my posts criticizing his claim that the NCSE website violates the Establishment Clause. Some quick notes:

First, Prof. Beckwith continues to refer to me as an attorney for the Pacific Legal Foundation, so I must again reiterate that I speak for myself on Panda’s Thumb, and not for my employers, clients, or donors.

Now, as for the good stuff, Prof. Beckwith cites the Lemon test. Fine enough. Then he says that Lemon’s been criticized. True. He then says that Justice O’Connor “proposed an alternative to the Lemon Test” in her opinion in Lynch. This differs significantly from his earlier claim that Justice O’Connor’s Lynch opinion is the test for establishment. In fact, her “alternative” remains just that–an alternative that has never been adopted by the Court.

He also argues that Rosenberger is not applicable to this case because <blockquote>“The funding in Rosenberger was not direct; it was indirect funds given to a third-party printer. And its purpose was not to advance a particular view of religious knowledge as correct; its purpose was to reimburse a student organization for its printing costs, which happens to be an organization that advances a religious point of view…. [Also] UVA was not directing the propagation of a religious point of view. It was merely, as a result of the Court’s holding, exercising “principles” that “provide the framework forbidding the State from exercising viewpoint discrimination, even when the limited public forum is one of its own creation.” (from Rosenberger) </blockquote>Such distinctions are not persuasive. First, the funding to the NCSE website is no more direct than the funding in Rosenberger; the money was given to the NSF, which gave the money to the NCSE, which gave the money to someone to set up and maintain a website; its purpose was to pay a foundation’s Internet publication costs, which happens to be an organization that “seems” to Beckwith to be advancing a religious point of view. And the NSF is not directing the propagation of a religious point of view. It is merely explaining “principles” that provide the framework for educating students in science. Prof. Beckwith’s attempt to distinguish Rosenberger seems weak to me.

In any case, the questions of how relevant the Lynch “alternative” is, or the facts of Rosenberger, are mostly just lawyers fighting. The real question is Prof. Beckwith’s own views. Here’s the relevant part: he says that government funding for the NCSE website violates the Establishment Clause because <blockquote>“one way to nurture hostility toward religion would be for the state to propagate the view that theology is not part of a knowledge tradition that may count for or against the deliverances [sic] of ‘science.’ For the NCSE/Berkeley site seems to me to be suggesting that public school teachers, in responding to religious queries while teaching evolution, ‘scan and interpret student’ questions ‘to discern their underlying philosophic assumptions respecting religious theory and belief.’”</blockquote>1) This is precisely the argument that was rejected in Smith v. Board of School Com’rs of Mobile County, 827 F.2d 684 (11th Cir. 1987), which I cited earlier, and to which Beckwith does not respond. The government, in pursuit of legitimate secular objectives, may make statements which might “seem” to people to “suggest” that people use secular methods to answer questions. That simply does not constitute an establishment of religion, under Lemon or its progeny.

2) If Beckwith’s interpretation were to become law–that government funds could never be allowed to “propagate [a] view” that theology is or is not “part of a knowledge tradition that may count for or against” whateveritis–or, worse, that government could never do something that “seems” to propagate such a thing–then, as I pointed out repeatedly, a variety of things conservatives think are perfectly legitimate, such as declarations of days of Thanksgiving, the placement of “In God We Trust” on coins, or the President’s Easter radio address, would violate the Establishment Clause as well. The courts have never adopted such an extreme separation view. I and most religious conservatives think this is wise. Courts have generally held that something more than a mere image of endorsement–and usually something more than mere funding of private parties who “propagate a view”–is necessary to violate the Establishment Clause. In one recent case, the Sixth Circuit Court of Appeals held that Ohio’s adoption of the state motto “With God All Things Are Possible” does not violate the Establishment Clause.See American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Bd., 243 F.3d 289 (6th Cir. 2001). Were Prof. Beckwith’s interpretation of Justice O’Connor’s Lynch opinion–extremely subjective as it is–to be adopted, this case would have to be reversed, as would many others. I asked Prof. Beckwith to address this point, but he still hasn’t. He says that I misrepresent his view by calling it extreme. But I think it is extreme. That’s why the Court has never adopted it, and why so many religious conservatives hope that it never does.

3) Beckwith says that “[i]ronically, Rosenberger, at a higher level of generality, could be read to support the position I defend in my American Spectator piece.” Well, I suppose that, at a high enough “level of generality,” just about all things look alike. The fact is, the Establishment Clause analysis in Rosenberger, and in all the other cases I cited, say that government does not violate the Establishment Clause simply by giving a grant to a private organization for legitimate secular reasons, when that private organization also happens tp advocates a religious position. Now, I don’t mean to concede that the NCSE website does advocate a religious position–I think that suggestion is absurd. But I’m just assuming it does for purposes of this argument.

In Prof. Beckwith’s favor, I will say that I think his argument that the fact that the NSCE website is on a University of California server strikes me as much stronger than his claim that the NSF grant violates the Establishment Clause. Not convincing, but stronger. I know of no cases on the subject, however. Complete separation of government funding and religious statements are not, however, required by the Establishment Clause. That Clause only forbids “governmental indoctrination,” or “defin[ing] recipients [of government largesse] by reference to religion,” or “creat[ing] an excessive entanglement’” of government and religion. Mitchell v. Helms,</i> 530 U.S. 793, 808 (2000) (plurality op.) It just seems like very far reaching to claim that the fact that a single descriptive page on a long website about evolution, hosted on a University of California server, constitutes establishment. Again, a mere image of endorsement does not violate the First Amendment.

You know, the Capitol Square Review case cited above includes some words from which I think Prof. Beckwith could profit:<blockquote>Much of what government does is irritating to someone. For example, the substantive content of the forms distributed by the Ohio Department of Taxation–particularly the line on the income tax form that says “AMOUNT YOU OWE”–is likely to be more irritating to more Ohioans than any motto imprinted on the Tax Department’s stationery. This hardly makes the income tax unconstitutional. Our level of irritation with a given governmental action is simply not a reliable gauge of the action’s constitutionality. The mere fact that something done by the government may offend us philosophically or aesthetically does not mean, ipso facto, that the Constitution is offended.</blockquote>243 F.3d at 309.