University of Chicago Law Professor Albert Alschuler posted some comments on the Kitzmiller decision that are embarrassingly bad in many places. I can do no better than Brian Leiter in refuting them—his post deserves to be read in its entirety. But I do want to emphasize one point. Alschuler accuses Judge Jones of declaring that “[t]he first amendment makes intelligent design unmentionable in the classroom.” As Leiter says, this is not even close to what Judge Jones said. Unfortunately, I expect this accusation to be repeated over and over again by those who profit greatly off of their image as a persecuted minority, hounded by evil atheist courts. All we can do is reiterate that it is not true.
The Court found that the government of Pennsylvania—acting through a local school board—has no authority to endorse a religious viewpoint by declaring that Intelligent Design is scientifically valid. But any individual in the Dover school district is free, today as always, to declare his personal belief in Intelligent Design, to tell other people about Intelligent Design, and to encourage people to read Of Pandas And People. What they are not free to do is to propagate ID on the government’s dime and on the government’s time. They are not free to spend taxpayer money on it, or put the government’s seal of approval on it. But they are absolutely free to propagate it on their own time and in their own ways—indeed, it would be entirely illegal for the government to stop them from doing so.
I cannot emphasize strongly enough how dangerous it is to confuse your right to do something with your power to do something with government money or with government authority. These two things are worlds apart. The Free Exercise Clause entirely protects the former. The Establishment Clause, however, severely restricts the latter—as it ought to.