Just in case you aren’t as tired with the whole NCSE-violating-the-Establishment-Clause thing as I am. . .
First, let me reiterate that my views as expressed on Panda’s Thumb are entirely my own, and not the views of my employers, fellow employees, donors, or clients, and are not intended to be taken as such.
When last we left off, I had explained (twice) that Francis Beckwith’s argument is based on an incorrect understanding of Establishment Clause law, and pointed out that conservatives have been at the forefront of attacking just this incorrect understanding–that, were his views to become the law, much that conservatives advocate would go by the wayside. I then asked for his response to this.
First, Prof. Beckwith says that his allegation that the NCSE website violates the Establishment Clause is “based on my understanding of contemporary Supreme Court jurisprudence. I would prefer that the Court not hold that view. But given that view, it seems reasonable to conclude that there are establishment concerns.” Now, as I’ve explained, Prof. Beckwith’s “understanding of contemporary Supreme Court jurisprudence” is faulty. But consider for a moment what he is saying. He 1) takes an extreme separation view of the Establishment Clause whereby it is an “establishment of religion” any time the government gives someone the impression that they’re outsiders based on their religious views, and whereby government dollars may never–no matter how many neutral, secular criteria they are filtered through–go to someone who makes a religious statement; 2) argues that this is required by the cases, despite the existence of Zelman, and Rosenberger, and Witters, and Helms, and the fact that Justice O’Connor’s Lynch opinion is not “the test” for establishment; 3) argues that this extreme separation view ought not to be the law, presumably because he believes that a correct understanding of the Establishment Clause would permit government funding of religious education; and finally, 4) argues that his extreme separation interpretation of the cases (which he does not personally believe in) should apply, to bar the NCSE website as a violation of the Establishment Clause.
Parts 1, 2, and 3 just about set up the archetype of a straw man argument. Merely because government funds go to a private organization which makes a statement on religious matters–even if that statement is advocacy of a particular religious view–does not necessarily violate the Establishment Clause. Nor does a mere feeling of “exclusion” on the part of some people constitute Establishment. (Although I admit, some cases have confused this issue, like Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000), which I believe was wrongly decided.) But part 4 is even stranger. Prof. Beckwith says that government ought to be able to fund religious education or advocacy–but not when it’s (supposedly) religious education or advocacy with which he personally disagrees. He would, I imagine, defend very strenuously the right of a Catholic student in a public high school to publish an article in her school newspaper about her faith, even though it is published with government funding–but if the student published an article explaining why she doesn’t think the fact of evolution is contrary to her Catholicism, he would say that this violates the Establishment Clause. But see Panarella v. Birenbaum, 32 N.Y.2d 108 (1973) (“Taxsupported colleges may provide financial assistance for a student newspaper publishing an occasional article attacking religious beliefs, so long as the nature of the attack is arguably within constitutionally protected publication.” Id. at 112).
Indeed, if a teacher started telling her class that life was created by a supernatural Designer, he would, I presume, fly to her defense–but if she started telling her class that many people believe that the process of evolution is compatible with a belief in God, he would object that this violates the Establishment Clause. Such a position appears to lack logical consistency. He attempts to evade this inconsistency by saying “I may not agree with all of contemporary SC jurisprudence, but that’s not the point.” But if he believes that the cases (as he interprets them!) ought to be overruled, and therefore believes that the NSF should to be allowed to make grants to groups that make religious statements, then he certainly didn’t make that clear in his original article!
Prof. Beckwith then asks, “is it the role of the state to fund a project that propagates a particular definition of what constitutes ‘religious knowledge’ as the correct one?” The answer to that is that once we have conceded the government’s authority to run an educational program at all–which I personally do not, but for reasons unrelated to this discussion–then we have also conceded the government’s right to fund quality education. Doing so will necessarily embody an epistemological bias–that is, a preference for accuracy over inaccuracy, or for literacy over illiteracy–but that is entirely legitimate, given the concession that government may teach. When one concedes that government has the right to protect public health, one must also concede its authority to require people to get vaccinations, despite the fact that some might wrongly believe them to be ineffective, (See Jacobson v. Massachusetts,</i> 197 U.S. 11 (1905)). When one concedes that government may teach students about World War II, one must concede that it may teach them about the Holocaust, despite the fact that there are people who deny that it occurred. When one concedes that government may teach students geography, one must also concede that it may teach them that the world is round, despite the fact that there are probably people who do not believe this. If one concedes that the government has the right to give grants to private organizations that teach science, including science which some people consider controversial for religious reasons, then one must concede that the government may choose to give grants to private organizations that make accurate statements about both the science and the religious controversy (See Crowley v Smithsonian Institution, 636 F.2d 738 (D.C. Cir. 1980)).
One case that is instructive is Smith v. Board of School Com’rs of Mobile County, 827 F.2d 684 (11th Cir. 1987). There, the court rejected a challenge brought by parents who objected to the use of textbooks in classes like home economics, on the grounds that these books taught “secular humanism.” For instance, the parents complained that “the books ‘imply strongly that a person uses the same process in deciding a moral issue that he uses in choosing one pair of shoes over another,’ and teach that ‘the student must determine right and wrong based only on his own experience, feelings and [internal] values’ and that ‘the validity of a moral choice is only to be decided by the student.’” Id. at 690-91 (quoting Smith v. Board of School Com’rs of Mobile County, 655 F.Supp. 939, 986 (S.D. Ala. 1987)). The Court of Appeals rejected this: <blockquote>Examination of the contents of these textbooks, including the passages pointed out by Appellees as particularly offensive, in the context of the books as a whole and the undisputedly nonreligious purpose sought to be achieved by their use, reveals that the message conveyed is not one of endorsement of secular humanism or any religion. Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decision-making. This is an entirely appropriate secular effect. Indeed, one of the major objectives of public education is the “inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system.” It is true that the textbooks contain ideas that are consistent with secular humanism; the textbooks also contain ideas consistent with theistic religion. However, as discussed above, mere consistency with religious tenets is insufficient to constitute unconstitutional advancement of religion.</blockquote>Id. at 692 (citations omitted).
Even more pertinent is Crowley, supra. In that case, the plaintiff challenged the use of government funds by the Smithsonian to set up an exhibit on evolution. He argued that this violated the Establishment Clause because it spent government funds to promote what he called a “religion” of secular humanism. The court rejected this; it sought to “balance between appellants’ freedom to practice and propagate their religious beliefs in creation without suffering government competition or interferences and appellees’ right to disseminate, and the public’s right to receive, knowledge from government, through schools and other institutions such as the Smithsonian. This balance was long ago struck in favor of diffusion of knowledge based on responsible scientific foundations, and against special constitutional protection of religious believers from the competition generated by such knowledge diffusion.” 636 F.2d at 744. It noted that the “solid secular purpose of ‘increasing and diffusing knowledge among men’” id. at 740, was sufficient to permit the expenditure of federal funds despite the fact that some people might interpret the display as having religious connotations: <blockquote>Nor does it follow that government involvement in a subject which is also important to practitioners of a religion becomes, therefore, activity in support of religion. For example, birth control and abortion are topics that involve both religious beliefs and general health and welfare concerns. Many religious leaders have vigorously opposed government support of the teaching and practice of birth control and government support, or even toleration, of abortion. Controversy, including litigation, about these subjects has been prolific and spirited. No court, however, has finally held that government advocacy of or opposition to either birth control or abortion violates the establishment clause of the first amendment.</blockquote>Id. at 742 (citations omitted). See further Cornwell v State Board of Education, 314 F Supp 340 (D.C. Md. 1969), aff’d 428 F2d 471 (4th Cir.), cert. denied 400 US 942 (1970); Civic Awareness of America, Ltd. v Richardson, 343 F Supp 1358 (E.D. Wis. 1972); Smith v Ricci, 446 A.2d 501 (N.J. 1982), app. dismissed, 459 US 962; Gregory G. Sarno and Alan Stephens, Constitutionality of Teaching or Otherwise Promoting Secular Humanism in Public Schools, 103 A.L.R. Fed. 538.
Prof. Beckwith has expanded his response somewhat on his own weblog. His response cites no cases, replies to none of the points made in my original two posts, and most notably, does not mention Rosenberger. Just to make sure we’re clear on this, in Rosenberger, “(1) direct government funding to a private organization (Wide Awake Productions) (2) to advance a particular view of religious knowledge as correct (the validity of Christianity) and (3) to advance the view that all other options are incorrect (e.g., atheism is not true), and (4) to do so on government property (the University of Virginia campus) and (5) under the direction of a government actor (UVA).” This was held not to violate the Establishment Clause, and Prof. Beckwith would appear to agree with that holding. (By the way, I should point out that the reasons for which the NCSE website does not violate the Establishment Clause are the same reasons that I have argued that textbook disclaimers do not constitute establishment, either. I give myself five points for consistency.)
Government has the power–indeed, the duty–to do secular things. It has the power, conceded at least for purposes of this discussion, to educate the public through NSF grants. It has the power to choose reason over unreason, and truth over fiction. It has the authority, therefore, to do all of these things put together.