Get Out of Evolution Free?

<img src=> The current issue of Nexus: A Journal of Opinion* features a deeply flawed student article by Crystal V. Hodgson, Coercion in The Classroom: The Inherent Tension between The Free Exercise and Establishment Clauses in The Context of Evolution.</i> Hodgson’s analysis is more honest than that of most proponents of creationism; nevertheless, her understanding of the First Amendment partakes of the confusion so common among them.

The most common such confusion is to conflate the analysis of the Free Exercise and Establishment Clauses, and it appears that Hodgson commits this error. But in any case, the result of her flawed understanding is a misleading analysis and incorrect conclusions.

There are numerous minor mistakes throughout the piece. For example, Hodgson claims that America “was founded by deeply religious persons of the Christian faith,” a claim which is at least not uncontroversial, and certainly does not apply to people like Thomas Jefferson, James Madison, Benjamin Franklin, Thomas Paine, and other important founders. She refers to Lemon v. Kurtzman,</i> 403 U.S. 602 (1971), as a “recent” case, when it’s almost thirty-five years old. She says the Supreme Court has “forbidden the display of religious holiday decorations in public buildings,” which is inaccurate: the Court has forbidden displays which send a message of endorsement, but has allowed religious displays which do not send such a message. See Allegheny v. ACLU,</i> 492 U.S. 573, 613-15 (1989). She says that “[b]y removing evolution from public school science agendas, a clear Establishment Clause violation occurs,” which is not true–government school officials could, if they wanted, eliminate their entire biology curriculum and not violate either the Establishment or Free Exercise Clauses. Cf. Palmer v. Thompson,</i> 403 U.S. 217 (1971); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973)). What violates the Establishment Clause is altering the biology curriculum, or doing anything else with the purpose of teaching religion to students in government classrooms.

But these and other flaws aside, Hodgson makes two main arguments: first, that the Court should adopt an “accomodationist” view of the First Amendment, and second, that under such a view, the Free Exercise Clause is violated when a government school teaches evolution as the only scientifically valid explanation of the origins of man.

Now, we’ve already heard the argument that teaching evolution as the only scientifically valid explanation of man’s origins violates the Establishment Clause. I’ve explained the problems with that theory in an earlier post. But that argument has even more plausibility than Hodgson’s, since the Establishment Clause is clearly violated by government establishing a religious orthodoxy. If it could be shown that evolution was a religious orthodoxy–which, of course, it cannot, see McLean v. Arkansas Bd. of Ed., </i>529 F.Supp. 1255, 1274 (D.C.Ark.1982); Pezola v. Capistrano Unified School District, 782 F. Supp. 1412, 1418 (C.D. Ca. 1992)–then there would be a serious argument that evolution education violates the Establishment Clause. But the Free Exercise Clause is different. It is violated when “individuals [are] coerced by the Government’s action into violating their religious beliefs,” or where “governmental action penalize[s] religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens….”<blockquote>It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment….. [But t]his does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit”: “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”</blockquote>

Lyng v. Northwest Indian Cemetery Protective Ass’n,</i> 485 U.S. 439, 449-451 (1988) (quoting Sherbert v. Verner,</i> 374 U.S. 398, 412 (1963) (Douglas, J., concurring)). (That Hodgson is confusing the Free Exercise and Establishment Clauses is revealed also by her discussion of the Lemon test, which is applicable only in Establishment cases, and not in Free Exercise cases.)

But let us consider Hodgson’s innovative argument that evolution education in government schools violates the Free Exercise Clause. She begins with an argument that the Court ought to embrace the “accomodationist” view of that Clause.

The accomodationist view is the notion that when a generally applicable law, which is unrelated to religious suppression, incidentally burdens a person’s religious exercise, the Court ought to require such a law to satisfy “strict scrutiny.” To simplify, suppose the government passes a law which has nothing to do with religion–such as a law that says you can’t get unemployment compensation if you refuse to take jobs that are offered you. Then along comes a person who refuses to work on Saturday, for religious reasons, and therefore refused to take a good job that requires Saturday work. Is the Free Exercise Clause violated when that person is denied unemployment benefits? The Supreme Court said yes in a case called Sherbert v. Verner,</i> 374 U.S. 398 (1963).

Consider the results of such a premise, though. The government passes a generally applicable law, having nothing to do with religion, and then a person pops up and claims that his religious views require him to violate that law; does the Free Exercise Clause act as a get-out-of-jail-free card? In Employment Div. v. Smith,</i> 494 U.S. 872 (1990), Oregon denied some folks unemployment compensation because they were fired for using illegal drugs. They claimed that they belonged to a Native American religion which required them to ingest the drugs, and therefore that the denial of unemployment compensation violated their Free Exercise rights. The Supreme Court held against them. “[T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Id.</i> at 879 (quoting United States v. Lee,</i> 455 U.S. 252, 263, n. 3 (1982) (Stevens, J., concurring in judgment)).<blockquote>The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs. . .–permitting him, by virtue of his beliefs, to become a law unto himself,–contradicts both constitutional tradition and common sense.</blockquote>

Id. at 885 (quotation marks and citations omitted). Thus the Smith Court abandoned the accomodationist view (although as if reveling in confusion, the Smith Court explicitly refused to overrule the Sherbert case, see, e.g., id.</i> at 884-885, or other cases, like Wisconsin v. Yoder,</i> 406 U.S. 205 (1972), which were based on the accomodationist view.)

Although some thoughtful conservatives (such as Thomas West) have defended Smith, there are many who believe that the Constitution ought to allow those with religious scruples to escape the requirements of generally applicable laws. Hodgson is among them. She argues that under the accomodationist view, the teaching of evolution in government school classrooms violates the Free Exercise Clause, because students are “taught only one explanation by the scientific ‘experts’ (a.k.a. their science teachers) at a time when…they are most susceptible to…undue influence from authority figures.” Even under the accomodationist view, though, the Court never held that merely being taught something violates the Free Exercise Clause. That interpretation holds that the Constitution is violated by laws which compel you to do something which your religious views forbid. Hodgson can show no example of a case which held otherwise; the closest she finds is the delightfully named Brown v. Hot, Sexy, and Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995). There, the court held, in a passage Hodgson quotes, that while the Constitution does protect a parent’s right to “choos[e] a specific educational program–whether it be religious instruction at a private school or instruction in a foreign language…[w]e do not think…that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children.”</b> Id. at 533. I’ve added that emphasis because Hodgson overlooks it. The point the Court makes here is that while parents may choose to teach their children what they believe is best (within limits), this does not give them a heckler’s veto over the content of education at a government school, when the parents exercise their choice by choosing to send a child to a government school. If the parents choose to home school their children, that’s a different question.

This is the conclusion a court would reach under an accomodationist interpretation. A student who is taught the fact that evolution is the only legitimate theory of the origin of species is simply not being coerced, as Hodgson herself admits: “public school students are not made to stand and assert belief in the theory of evolution, despite their literal interpretation of Genesis, the Koran, etc. Nor are they forced to live a lifestyle that is wholly contradictory to their religious mandates.” Acknowledging that this admission completely undoes her claim of coercion, she reverts to the peer-pressure argument: that students are “taught only one explanation by the scientific ‘experts’ (a.k.a. their science teachers) at a time when…they are most susceptible to…undue influence from authority figures.” But the peer-pressure argument (also called the “psychological coercion” argument) appertains only to Establishment Clause cases, where the relevant consideration is the message being sent by the government, as opposed to the coercion being effected by the government. The latter consideration is at the heart of Free Exercise cases, so that the question of pressure or influence is far less relevant. See, e.g., Locke v. Davey,</i> 124 S.Ct. 1307, 1311 (2004). Thus, even under an accomodationist view, the Free Exercise Clause is simply not violated by exposing students to evolution education in government schools, because there is no relevant coercion involved.

The answer to Hodgson’s question, “does the Constitution not also prohibit anti-religious instruction on the origins of life?” is, no it does not. Nothing in the Constitution–and certainly not the Free Exercise Clause, even under an accomodationist view–prohibits the state from propagating scientific explanations of the origins of life, even when students find such views difficult to square with their religious upbringing.

Now, the Court abandoned the accomodationist view in Smith, partly because the law simply cannot be made to depend on the religious proclivities of a very pluralistic society like our own–the accomodationist view would make the First Amendment into “a private right to ignore generally applicable laws.” 494 U.S. at 886. Hodgson doesn’t explain how embracing her accomodationist view in the educational context would avoid this problem. She thinks a student’s Free Exercise rights prohibit the state from exposing him to facts that are irreconcilable with the religious views of that student and/or his parents. But not even Yoder, a case which Hodgson praises, agreed with that. There, the Court held that “[t]here is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” 406 U.S. at 213. If a student comes into the classroom with religious reasons for his ignorance or bigotry, he cannot claim his free exercise rights are violated when the teacher exposes him to contrary facts–or even contrary theories or speculations. If a student believes that God made black men intellectually inferior to white men, the state would not violate his First Amendment rights by exposing him to the speeches of Martin Luther King. And if a student believes that God made white and black equal, the state would not violate his First Amendment rights by exposing him to the speeches of Stephen Douglas.

Once one concedes that the state may establish and run a school system, one must also concede that the state does have the Constitutional authority to teach students things that conflict with their religious beliefs. It has the authority to teach them pleasant things and unpleasant things, theories and speculations, poetry and bad economics, the great masterpieces of art and the dumbest educational fads that cross their desks. It even has the authority to teach them some untrue things. The only thing they may not do is establish religion or forbid a student from exercising his religion. Teaching a student scientific facts does none of these things. He may find the facts discomforting, but so long as his parents choose to send him to a government school, he may not claim an exemption from such discomfort.

If I may continue this digression, I believe education ought to cause discomfort. If it doesn’t, the teacher is probably doing a bad job. Education accomplishes nothing if it simply reiterates and comforts. The point of education is to confront students’ comfortable presuppositions, to teach them how to think for themselves; to teach them the skepticism and the habit of demanding evidence, without which a free society cannot long exist. Jacob Bronowski once said<blockquote>I once addressed, on a Christmas day many years ago, on behalf of the United Nations, an audience of about two thousand school children in London…. [I]n a moment of abandon I said to them: “This is how the world goes, you are going to have to make it different, you are going to have to stop listening to your parents. If you go on obeying your parents, the world will never be a better place.” And at that moment twenty newspaper men representing the European press got up from the front row and rushed for the telephone boxes. And by the time I got home one of the more adventurous correspondents from Geneva had actually phoned my daughter, then aged seven, at school in order to ask whether she was encouraged to disobey her parents at home. But that is what we mean. And indeed, if I may lapse for a moment into my views on sociology, one of the reasons why, on the whole, women have had difficulty so far in making very good scientists is that they are not contrary enough. Happily time will cure all that. Time will produce belligerent, contrary, questioning women as it has produced belligerent, contrary, questioning men…. [I]t is very important to recognize this kind of personality because, of course, it makes the changes in society….. [I]t is people like that who are the catalysts, the stimulators, the creators of change.</blockquote>

Jacob Bronowski, The Origins of Knowledge And Imagination 119-20 (1978). That Bronowski’s daughter, Lisa Jardine, has gone on to become a justly famous historian of art and science, and the first female Don at Oxford, serves only to prove him right.

Like Bronowski, the Courts have repeatedly held that the purpose of government education is what Hodgson dismissively refers to as “persuading school age children to…pursu[e] ‘intellectualism’ and logical thought,” and that this is a legitimate purpose. True, in some cases, students might be “persuad[ed]…to renounce their religion [sic].” But that is not the state’s concern one way or the other; if the student believes that his religion is compatible with intellectualism and logical thought, that is just fine; if the student decides it is not, and therefore renounces his religion, that is just fine also; and if the student renounces intellectualism and logical thought, that is fine, also. Government education, however, is based on the premise that the state has the right to require that students be exposed to intellectualism and logical thought. And exposing them to intellectualism and logical thought certainly does serve to inculcate the values that make them good citizens. Hodgson argues that students’ free exercise rights are violated by the teaching of evolution because<blockquote>[p]ublic school children are presently [sic] left with an origins of life instruction comprised solely of the theory of evolution. Many children are from families with religious beliefs that are contrary to the premises of Darwin’s theory. Namely, these students believe that a Supreme Being created man and all living creators in a six day period. This belief is obviously irreconcilable to Darwin’s theory of macro-evolution in which human’s [sic] evolved over thousands [sic] of years.</blockquote>

But the government may legitimately teach that the world is round and orbits the sun, or that blacks and whites are equal, or any number of other facts that might conflict with some student’s religious beliefs. Hodgson cannot show that a student’s Free Exercise rights are violated by being exposed in the classroom to the facts of life, because a student is simply not being coerced by the law, or forced to forego a constitutional or statutory or natural right by being exposed to such ideas. To once again quote Lyng, “The crucial word in the constitutional text is ‘prohibit’: ‘For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’” 485 U.S. at 449-451.

It might be argued, and with some justice, that there is coercion if students are not free to refuse to attend school. But (to some degree, at least) they are, and this, too, cuts off the coercion that Hodgson needs to make her case. This is why the Brown court’s reference to “the public school to which [parents] have chosen to send their children,” 68 F.3d at 533, is so important. If parents wish to send their children to a private school, or teach their children at home, they are free to do so. But as the Brown Court put it, once a parent decides to send a student to a government school, the parent has no right “to say to the state, ‘You can’t teach my child subjects that are morally offensive to me.’” Id. at 534.

Just as the Court in Smith held that religion cannot create a private right to be exempt from the laws, so, too, a student’s religion cannot create a private right to “see no evil, hear no evil” in the government classroom to which his parents have chosen to send him. The Free Exercise Cause is not a get-out-of-jail-free card; neither is it a carte blanche for ignorance.

*–Disclosure: When I was in law school, I served as articles editor for Nexus, and published my own student article, focusing on the Establishment Clause issues surrounding accreditation of creationist graduate schools.