The decision in Selman</a> is pretty straightforward. When deciding whether something violates the Establishment Clause, courts apply the Lemon test, which says that something violates the Establishment Clause if it is (1) not adopted for a secular purpose (2) if its operation inhibits or promotes religion, or (3) if it creates an excessive entanglement of government and religion. More recent cases have combined the second and third parts of this test, but that’s still the rough outline.
With regard to part 1 of the test, the court finds that the disclaimer was not created solely for a religious purpose (p. 22): “To the contrary, the court found that the School Board sought to advance two secular purposes…to encourage students to engage in critical thinking…[and] to reduce offense to those students and parents whose personal beliefs might conflict with teaching on evolution.” Are these, indeed, legitimate secular purposes? The first certainly is–assuming that’s what the School Board really had in mind. (And it’s not for me to dispute, since that’s the judge’s call, and he provides a very thorough discussion of that issue.)
But the second one, I’m not so sure. Government may not soothe the irrational fears of the populace in ways that undermine constitutional restrictions. Consider, for example, the days of segregation. In the cases enforcing its decision in Brown v. Board of Ed., the Supreme Court repeatedly rejected appeals by school boards that tried to delay desegregation purportedly to prevent civil disorder. “Private biases,” the Court said in another race case, “may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. ‘Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.’” Palmore v. Sidoti</i>, 466 U.S. 429, 433 (1984) (quoting Palmer v. Thompson</i>, 403 U.S. 217, 260-61 (1971) (White, J., dissenting)). I’m not likening religion to segregation; I’m saying that I am unconvinced that merely reducing offense felt by some religious folks is a legitimate secular interest.
But then, I’m a bit of a hard-liner. The judge is clearly very concerned with giving school districts room to maneuver in a society full of non-specialists and those ignorant of, and hostile to, the concept of evolution:<blockquote>[T]he School Board adopted a sticker that is not openly religious but served to put students, parents, and teachers on notice that evolution would be taught in a manner that is inclusive rather than exclusive. The School Board sought to show consideration for their constituents’ personal beliefs regardig the origin of life while still maintaining a posture of neutrality towards religion. The school Board’s decision to adopt the Sticker was undisputably influenced by sectarian interests, but the Constitution forbids only a purpose to endorse or advance religion. (p. 28).</blockquote>
In other words, “cut the Board a little slack.”
That being said, the Court goes on to part 2: “[T]he effects prong asks whether the statement at issue in fact conveys a message of endorsement or disapproval of religion to an informed, reasonable observer.” (p. 31) The Court finds that the sticker violates this part because the history of religious hostility to evolution education, combined with the controversy that led up to the adoption of the sticker by the school board,<blockquote>The critical language of the Sticker that supports the conclusion that the Sticker runs afoul of the Establishment Clause is the statement that “[e]volution is a theory, not a fact, concerning the origin of living things.” This statement is not problematic because of its truth or falsity, although testimony from various witnesses at trial and the amicus brief submitted by the Colorado Citizens for Science, et al., suggest that the statement is not entirely accurate. Rather, the first problem with this language is that there has been a lengthy debate between advocates of evolution and proponents of religious theories of origin specifically concerning whether evolution should be taught as a fact or as a theory, and the School Board appears to have sided with the proponents of religious theories of origin in violation of the Establishment Clause. (pp.33-34)</blockquote>
(I’m proud to say that I wrote the amicus brief for the Colorado Citizens, et al., with the help of Georgia attorney Lynn Fant, and you can read it here. It even cites Panda’s Thumb entries!) In addition, the Court notes that “encouraging the teaching of evolution as a theory rather than as a fact is one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations.” (p. 35) These facts and more support the Court’s conclusion that a reasonable, informed observer would interpret the sticker as an endorsement of a religious viewpoint, and therefore a violation of Lemon’s part 2, and therefore a violation of the Establishment Clause.
The decision is thorough, well-reasoned, and entirely consistent with the law of the First Amendment. We should be grateful to Judge Cooper for his careful attention to detail and his very thoughtful opinion. Congratulations also to the Colorado Citizens for Science, Kansas Citizens for Science, Michigan Citizens for Science, Nebraska Religious Coalition for Science Education, New Mexico Academy of Science, New Mexicans for Science and Reason, New Mexico Coalition for Excellence in Science and Math Education, and Texas Citizens for Science, for having the guts to stand up and speak in court. Good for you folks!