Religious Conservatism on the Supreme Court: Implications for Creationism?

It’s always a risky game to predict what the Supreme Court will do about anything, but we can always discern the general trends, and as a decades-long member of the (spooky, scary!) Federalist Society, I thought I’d take a crack at answering the first three of Joe Felsenstein’s questions about the future of teaching evolution.

What would this court do if asked to decide a case similar to the Dover School Board case?

In the Dover case — which, believe it or not, is going on 20 years ago, now — the district court found that the school board violated the First Amendment by adopting an “Intelligent Design Policy.” This policy required that a statement be read to students in ninth grade biology class which said that biological evolution “is not a fact,” that it contained “gaps ... for which there is no evidence,” and that “Intelligent Design ... differs from Darwin’s view.” It encouraged students to consult Of Pandas and People, a book which advocated ID creationism, and which was made available to students. After a thorough trial on the factual issues, the court found this unconstitutional using two different legal tests: the “Endorsement Test” and the “Lemon test.”

These tests are intellectual devices judges use to answer whether government has crossed the constitutional lines that bar it from either establishing a religion — that is, creating an official church or creed of some kind — or inhibiting the free exercise of religion — that is, punishing or burdening someone for practicing a faith. And these two tests are quite similar. The Lemon test, however, is a three-part analysis dating back to the 1971 case of Lemon v. Kurtzman. The Endorsement Test is somewhat older.

The Endorsement Test asks “whether an objective observer, acquainted with the text, legislative history, and implementation of the [law being challenged in court], would perceive it as a state endorsement of prayer in public schools,” or, to put it another way, whether it “sends the ancillary message to members of the audience who are non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

The Lemon test is somewhat more comprehensive. It asks three questions: whether the challenged law has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an “excessive entanglement” with religion — meaning, whether it draws government too close to a church.

The Lemon test has come under a lot of criticism over the years, primarily by religious conservative justices such as Antonin Scalia and Clarence Thomas, who view it as either too vague to be helpful or as inherently biased against religion. They think courts applying the Lemon test tend to unfairly block the government from engaging in policies that do nothing more than treat religious people or institutions equally. Personally, I’ve never found this argument persuasive — and I’ve never seen anyone offer a really good alternative to Lemon — but it’s been a major issue among conservative lawyers, who think Lemon does not lead to true religious neutrality, but instead tends to exclude religious perspectives from government policy even where those perspectives do not amount to compelling someone to pray or to subsidize a church.

This morning, in Kennedy v. Bremerton School District, the Supreme Court overruled both the Endorsement Test and Lemon, although it did so in language intended to make readers think these tests had been overruled “long ago.” The Court says, for example, that “[over] time, [the Lemon test] came to involve estimations about whether a ‘reasonable observer’ would consider the government’s challenged action an ‘endorsement’ of religion.” The fatal flaws of the Lemon and Endorsement Tests, it claims, is that they used an “abstract, and ahistorical approach to the Establishment Clause” instead of relying on “historical practices and understandings.” Going forward, courts should “focus[] on original meaning and history.”

What precisely does this mean? Unfortunately, one of the fatal flaws in the now-dominant constitutional theory of Originalism is that it substitutes appeals to past generations’ subjective understandings for any conceptual and logical legal argument. Since such a substitution is not literally possible, some of the better Originalist thinkers have fashioned clever ways to smuggle in the latter by dressing up “abstract and ahistorical” arguments in ancient clothing (this is called “the Construction Zone”). Pointing to historical practice is not only confusing, since these practices sometimes conflicted and can be interpreted in different ways, but because we must infer general rules from those practices, and inferring general rules is, like it or not, necessarily an “abstract and ahistorical” undertaking. It’s no surprise, therefore, that the Kennedy decision itself employs an “abstract an ahistorical” principle, when it bases its decision on the presence or absence of “coercion” — which is an abstraction; a concept, not a list of specific historical events. Obviously history can inform a proper grasp of the law — just as the views of previous generations of scientists can help us understand a natural phenomenon — but actually understanding what the law is requires an objective analysis, which must rely on abstractions and “ahistorical” appeals to principle rather than, as Alexander Hamilton put it, rummaging through musty parchments. Given this confusion, it’s unsurprising that the Court drops the entire issue at that point, and gives us no guidance as to what exact kinds of “historical practices and understandings” should govern the question of whether something constitutes an “establishment of religion” or the “free exercise thereof.”

Given that government-funded schools are a century and a half older than the Constitution itself, and were in America’s early years quite heavily saturated in religion, it seems unlikely that a court relying on history alone — without any “abstract and ahistorical principle” to reinforce its constitutional understanding — would reach the same conclusion as the district court in the Dover case. Of course, schools — both public and private — were teaching Intelligent Design in 1791 (when the First Amendment was ratified), since it was the state of the art back then. And the Establishment Clause itself expressly allowed states to maintain their state-established churches; it was only over the course of the nineteenth century that they were abolished, and later still that the Fourteenth Amendment was viewed as forbidding states to force people to subsidize churches. Just the other day, Justice Barrett observed that the Court has “not conclusively determine[d] the manner and circumstances in which post-ratification practice may bear on the original meaning of the Constitution,” and therefore that it’s unclear whether “whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 [when the Fourteenth Amendment was ratified] or when the Bill of Rights was ratified in 1791.” If 1791 were our guide, it seems quite clear that the Dover would be decided differently. But if we instead take 1868 as our starting point, and draw from the understanding of that time that the schools were intended to be secular institutions devoted to teaching the natural world rather than religious doctrine, then the question becomes more complicated: our creationist friends will then seek to argue that teaching a sort of broadly theistic “creator” doesn’t cross the line — indeed, many religious conservative lawyers have argued that for decades already. They contend that the First Amendment only bars sectarianism in government classrooms, not what they call “general” religious views (whatever those are).

In the Dover case, the judge found that “a reasonable, objective observer who knows the policy’s language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose,” would understand that the school board’s Intelligent Design policy was “creationism re-labeled,” and was intended to reach students “that the intelligent designer is God.” Since an objective observer would understand that the ID policy was intended to express official government endorsement of religion, it constituted an unconstitutional establishment of religion. But if schools are allowed to teach vaguely defined “Judeo-Christian values,” because that was permitted in 1791 or 1868, then it’s hard to see how a court would decide the Dover case today.

Of course, there’s the abstraction of “coercion.” In the Kennedy decision, the Court says

government may not, consistent with a historically sensitive understanding of the Establishment Clause, “make a religious observance compulsory. Government “may not coerce anyone to attend church,” nor may it force citizens to engage in “a formal religious exercise.” Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause. But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.

Would all lower courts rule against such a school board, with the case appealed to the Supreme Court?

It would require a court-by-court analysis to answer this. Some recent judicial appointees are well known for being open advocates of ID creationism. Others would no doubt continue to hold that the First Amendment prohibits religious indoctrination in public schools.

Or would the increasing number of conservative justices who have been vetted by the Federalist Society allow the Supreme Court to dodge such an issue by letting the pro-ID or pro-creationism ruling of an appeals court stand, by refusing to hear the case?

The Supreme Court takes fewer than one percent of the cases it’s asked to take, so it’s overwhelmingly likely that virtually any appellate court ruling will “stand,” regardless of what it’s about or whether it’s right. I suspect that there’s little interest on the Supreme Court to take a creationism case, however. While I can’t speak for the Court, or even for the whole Federalist Society (having been a Society member for some 25 years now, I know well enough it’s impossible to speak for the whole Society), I can say that I’m not aware of a prominent contingent within it that’s particularly enthusiastic about creationism. Instead, the religious conservative faction of lawyers is more concerned with school prayer in general, and I think it more likely that the Court will be interested in cases involving that, than those involving creationism specifically. This is reading tea-leaves, of course, so take that for what it’s worth.

How soon can we expect the Discovery Institute to lawyer-up and decide that its original position of “Teach The Controversy” is maybe not such a bad approach after all?

Any reasonable observer would assume they were on the phone with their lawyers at about 10:30 am eastern time yesterday morning.