“Response to Timothy Sandefur”
No portion of this work shall be reproduced or republished
without the express written consent of its author.
The
following response includes edited portions of my book, Law, Darwinism, and
Public Education (Rowman & Littlefield, 2003), though the bulk of the
material is written specifically for this reply. This will be my last word on
my
I
apologize for the unevenness of this essay. But it is something I put together
in haste in order to issue a final response as quickly as possible so that I
may return to working on several writing projects, one of which is overdue.
I
will first give a brief summary of my take on First Amendment religion
jurisprudence and then move on to the cases Sandefur cites and why they fail to
establish his position.
In
Lemon v. Kurtzman, the U. S. Supreme Court provided a three-part test that has
been used by many courts to determine whether or not a given public policy or
law runs afoul of state neutrality on religion and thus the establishment
clause. The Court believed that this test is based on the history of the
Court’s decisions on the matter of Church and State. Thus, if a challenged
policy or law passes this test, it is constitutional. However, it need only
fail one prong of the test in order to be declared unconstitutional:
Every analysis in this area [church/state cases] must begin
with consideration of the cumulative criteria developed by the Court over many
years. Three such tests maybe gleaned from our cases. First, the statute must
have a secular legislative purpose; second, its principle or primary effect
must be one that neither advances nor inhibits religion, Board of Education v.
Allen, 392 U.S. 236, 243(1968); finally, the statute must not foster “an
excessive government entanglement with religion." Walz
[v. Tax Comm’n of
The
operative terms in this test are “secular purpose,” "principle and primary
effect" and "excessive government entanglement," all of which
were applied in McLean v. Arkansas, though the secular purpose prong is
the only one employed by the Court in Edwards v. Aguilard.
Because
the First Amendment also has a Free Exercise Clause, and because apparently”
neutral” laws may inhibit religion and/or its Free Exercise, the Court has
ruled that the government may accommodate religion and that such an
accommodation may pass the Lemon test: “Everson and Allen put to
rest any argument that the State may never act in such a way that has the incidental
effect of facilitating religious activity . . .. If this
were impermissible. . . . a church could not be
protected by the police and fire department, or have its public sidewalk kept
in repair. The Court has never held that religious activities must be
discriminated against in this way.”[2]
It
should be noted that some scholars as wells some post-Lemon
opinions by Supreme Court Justices have criticized and questioned certain
aspects of the Lemon Test.[3]For
example, in Lynch v. Donnelly, Justice Sandra Day O'Connor proposed an
alternative to the Lemon Test, one that is commonly called the “endorsement
test.” According to this test, if a government action creates perception
that it’s either endorsing or disfavoring a religion, the action is
unconstitutional. The concern of this test is whether the disputed activity
suggests "a message to nonadherents 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." (Lynch,
465
It
is clear, then, that Sandefur is mischaracterizing the endorsement test when he
writes that my description of it leads me to take “an extreme separation view
of the Establishment Clause whereby it is an establishment of religion anytime
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.” As a fair reading of the endorsement test
indicates, it is far from an extreme separation view, and a charitable reading
of Justice O’Connor reveals it to be a “reasonable-person” type standard, and
not a “gives someone the impression they’re outsiders” standard.
Sandefur
is correct that the Endorsement Test is not the test for establishment.
In fact, there is probably no one test. It is difficult to know what
establishment test the Court currently embraces. According to Gerald Gunther
and Kathleen M. Sullivan, although the Court’s use of the Lemon test has faced
a variety of criticism, it “has not formally renounced” the test, “but has
relied on it less and less in recent years. The Court’s decisions over the last
decade increasingly employ entirely different sets of analytical devices for
distinguishing establishments.”[5]
These devices include the neutrality test, Lemon Test, the endorsement test (in
both its forms), and the no coercion test. Perhaps this is where the Court is
heading: different tests for different sorts of establishment cases.
Nevertheless,
in some recent cases the Court in its holdings seems to be moving toward some
variation of the endorsement test as a proxy or substitute for the Lemon test
(even when the holding does not explicitly mention the endorsement test).[6]
These cases involve the providing of public funds to, and/or the use of public
facilities by, individuals and/or institutions which propagate
religious-oriented speech. The Court’s holdings in these cases seem to be
saying that if a state funds or provides public facilities or forums for
citizens affirming differing points of view, and it cannot reasonably be
inferred that the government would be endorsing a religion if these venues
included expressions of religious points of view, the state cannot, and is not
required to, exclude religious points of view from the benefits accorded to
others in these venues simply because these views are religious. The Court,
however, has applied the endorsement test (or something similar to it in the
pre-O’Connor era) to limit the communication of a viewpoint when the
speaker (or inanimate proxy) is a representative or agent of the state, and/or
whose religious views may be reasonably perceived as being endorsed by the
state. (“[W]e
must draw lines with reference to the three main evils against which the
Establishment Clause was intended to afford protection: ‘sponsorship, financial
support, and active involvement of the sovereign in religious activity.'” (Lemon,
403
II. Sandefur’s Rebuttal to My Case
Sandefur
cites several cases to rebut my argument that the NCSE/Berkeley website
violates the establishment clause. But none is really to the point. Zelman
and Helms involved vouchers given to parents (or directed by parental
choice) in which religious schools benefited, but only as a result of parental
choice and not direct government funding for the purpose of advancing religion.
In these cases vouchers could be used for religious or non-religious schools.
So, the key here is state-neutrality, i.e., no state endorsement of religion or
irreligion.
Witters
and Rosenberger are cases in which a person (Witters) and group (Rosenberger)
were denied government benefits on Establishment Clause grounds based on the
fact that they intended to use these benefits for the purpose of funding
education for ministry (Witters) and funding the production of a student
newspaper that advanced a religious viewpoint,(Rosenberger), even though
similarly-situated persons and groups were given precisely the same benefits
because they intended to use the benefits for non-religious education and
advancing a non-religious viewpoint. So, the reason why the Court sided with
Witters and Rosenberger is because the state cannot target adherents of a
particular point of view for exclusion from government benefits based on the
Federal Constitution’s Establishment Clause simply because the point of
view is religious. In both Witters and Rosenberger the actors
were entirely private and the state was not asked to directly pay for a
particular religious point of view to be advanced. Witters
was a blind citizen who was denied scholarship money for ministry
education on the basis of the Federal Establishment Clause. Ironically, Witters
never received the money, because on remand the state Supreme Court held that
the state of Washington could deny Witters the money based on the state
Constitution(irrespective of the Federal Constitution) and the fact that the
U.S. Supreme Court refused to address whether Witters would be entitled to the
money based on the Federal Free Exercise Clause (irrespective of the state
Constitution).Nevertheless, if Witters had received the money on Federal Free
Exercise grounds or because the state amended its constitution, he would have
been given the funds in order to select an education of his choice, as in the
cases of the parents in Helms and Zelman; the money would not
have been given to him for the purpose of his studying for the ministry.
In Roseberger, Wide Awake Publications was an approved
To obey the Establishment Clause,
it was not necessary for the University to deny eligibility to student
publications because of their viewpoint. The neutrality commanded of the State
by the separate Clauses of the Amendment was compromised by the University's
course of action. The viewpoint discrimination inherent in the University's
regulation required public officials to scan and interpret student publications
to discern their underlying philosophic assumptions respecting religious theory
and belief. That course of action was a denial of the right of free speech and
would risk fostering a pervasive bias or hostility to religion, which could
undermine the very neutrality the Establishment Clause requires. There is no Establishment
Clause violation in the University’s honoring its duties under the Free Speech
Clause.[8]
Ironically, Rosenberger,
at a higher level of generality, could be read to support the position I
defend in my American Spectator piece. For one way to nurture hostility
toward religion would be for the state to propagate the view that theology is
not part of a knowledge tradition that may count for or against the
deliverances of “science.” For the NCSE/Berkeley site seems to me to be
suggesting that public school teachers, in responding to religious queries
while teaching evolution, “scan and interpret student” questions “to discern
their underlying philosophic assumptions respecting religious theory and
belief.” Consider this statement on the
This
brings me to my last point. Sandefur attempts to rebut my case against
Just to make sure were 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.
But Sandefur’s analysis is mistaken. First, elements 1 and 2 are not accurate.
The funding in Rosenberger was not direct; it was indirect funds given to a
third-party printer. And its purpose was not to advance a particular view of
religious knowledge as correct; its purpose was to reimburse a student
organization for its printing costs, which happens to be an organization that
advances a religious point of view. Consequently, 3 is
incorrect as well. 4 is correct. 5, however, is
incorrect, for UVA was not directing the propagation of a religious point of
view. It was merely, as a result of the Court’s holding, exercising
“principles” that “provide the framework forbidding the State from exercising
viewpoint discrimination, even when the limited public forum is one of its own creation.”(from Rosenberger)
Therefore, it seems to me that the
The Paleontology and the National Center for Science Education are
developing a new website on evolution. The site has three segments, each
tailored to a specific audience (teachers, students, and the general
public),and together they will provide a rich and robust area for exploration
and learning, leading to a better understanding of evolution and how it impacts
our lives. The first (current) phase of the project focuses on teachers. For
teachers, our goal is to improve teacher understanding of the nature of
science, the patterns and processes of evolution, and the history of
evolutionary thought, and thus increase the teacher’s confidence level to teach
these subjects effectively. The site will also provide classroom resources,
including a selection of effective approaches and teaching strategies and a
searchable database of curricula, teacher-tested activities, and lesson plans
that are consistent with those modeled in the National Science Education
Standards.[11]
(2) The National Science Foundation (NSF)—a
federal government entity that funded the site in question—knew that
Berkeley/NCSE was developing this site and that it was claiming that its
lessons had the imprimatur of the government’s science authorities (i.e.,
“consistent with those modeled in the National Science Education Standards”)[12]
and that it would offer these authoritative lessons to public school teachers
that would include links to religious organizations that agree with these
lessons.
Given the claim on the Berkeley site that
evolution is the unquestioned view of all those who are real scientists,[13]
and given the fact that Berkeley is a state actor whose work is funded by the
NSF (a state actor), and given that the site itself claims that its lessons are
consistent with standards, that carry with them the government’s imprimatur,
and that are published by a press that offers “definitive information” on the
subject because it issues the reports of professional groups operating under a
charter granted by Congress,[14]
it seems clear that the Berkeley cite is a case of the government violating neutrality
on religion. For the site’s section on religion is an integral part of it, but
it offers a understanding of religious knowledge as the correct one, even
though it is controversial and not widely accepted among serious religious
believers and unbelievers.
[1]Lemon v.
Kurtzman, 403 U.S. 602(1971) (striking down as unconstitutional statutes in
Pennsylvania and Rhode Island that involved public aid programs to private
school teachers including parochial school teachers).
[2] Roemer v.
Board of Public Works 426U.S. 736, 747 (1976) (emphasis added)
[3]See, for
example, Steven V. Monsma, Positive Neutrality: Letting Religious Freedom
Ring (Westport, CT: Greenwood Press, 1993); Robert Cord, The Separation
of Church and State: Historical Fact and Current Fiction (New York: Lambeth
Press, 1982),169-211; Carl H. Esbeck, “Equal Treatment: Its Constitutional
Status,” unequal Treatment in a Pluralistic Society, eds. Stephen V.
Monsma & J. Christopher Soper (Grand Rapids, MI: Erdmann, 1998); Michael W.
McConnell, “The Origins and Historical Understanding of Free Exercise of
Religion,” Harvard Law Review 103 (May, 1990); Michael W. McConnell,
“Should Congress Pass Legislation Restoring the Broader Interpretation of Free
Exercise of Religion?,” Harvard Journal of Law &Public Policy 15
(1992); Michael W. McConnell, “Accommodation of Religion: An Update and a
Response to the Critics,” George Washington Law Review 60 (March 1992);
Marsh v. Chambers,436 U.S. 783 (1983) (upheld “the Nebraska Legislature’s
practice of opening each legislative session with a prayer by a chaplain paid
by the State,” but did not apply the Lemon Test); Lynch v. Donnelly 465 U.S.
668, 687-694 (1984)(O'Connor, J., concurring) (suggesting an “endorsement
test.”); Mueller valley, 463 U.S. 388 (1983) (upheld Minnesota’s policy that
allowed taxpayers to deduct from gross income actual expenses incurred for
textbooks, tuition, and transportation for dependents attending elementary and
secondary schools whether public or nonpublic, maintaining that Lemon is
settled law but is “no more than a signpost”); Meek v. Pitting 421 U.S. 349,
374 (1975) (Brennan, J., dissenting) (finding a fourth prong to the Lemon Test:
"...four years ago, the Court, albeit without express recognition of the
fact, added a significant fourth factor tithe test: `A broader base of
entanglement of yet a different character is presented by the divisive
political potential of these state programs.' [Lemon, 403 U.S.,
622]”); Wallace v. Jaffrey, 472 U.S. 38, 112 (1985) (Rehnquist, J., dissenting)
(arguing that the Lemon test is “a constitutional theory [that] has no basis in
the history of the amendment it seeks to interpret, it is difficult to apply,
and yields unprincipled results”); Edwards, 482 U.S., 636-637 (Scalia,
J., dissenting) (criticizing the “purpose” prong of the Lemon test)
[4]O'Connor's
endorsement test and versions of it defended by legal scholars have been
criticized as well. See, for example, Steven D. Smith, “Symbols, Perceptions,
and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement”
Test,” Michigan Law Review 86 (November, 1987); and Derek H. Davis,
“Equal Treatment: A Christian Separationist Perspective,” in Equal Treatment,
136-157)
[5]Gerald Gunther and Kathleen
Sullivan, Constitutional Law, 13th ed. (Westbury, NY: Foundation Press,
1997), 1501.
[6]See, for
example, Widmer v. Vincent, 454 U.S. 263 (1981) (finding that a religious
student group’s free speech and association rights were violated when it was
prohibited by a state university from meeting on campus);Lamb’s Chapel v.
Center Moriches Union Free School District, 508 U.S. 384(1993) (ruling that it
does not violate the Establishment Clause for a public school district to
permit a church to show, after school hours and on school property, a
religiously-oriented film on family life); Soberest v. Catalina, 113U.S. 2462
(1993) (ruling that a school district may not refuse to supply a sign-language
interpreter to a student at a religious high school when such government
benefits are neutrally dispensed to students without regard to the
public-nonpublic or sectarian-nonsectarian nature of the school); Capitol
Square Review Board v. Pipette, 515 U.S. 753 (1995) (finding that it was
content-based discrimination for the government to prohibit a controversial
organization from sponsoring a religious display in a public park); Rosenberger
v The University of Virginia, 515 U.S 819 (1995) (ruling that it was a denial
of college students’ free speech rights, as well as a risk of nurturing
hostility toward religion, to prohibit the students from using student-funds
for a religiously-oriented publication); Mitchell v. Helms, 530 U.S. 793
(2000)(finding that direct funding to private schools including religious
schools does not violate Establishment Clause, since the distribution is
evenhanded and the use of the money to indoctrinate in religious schools cannot
reasonably be attributed to government); Mitchell, 530 U.S. 836
(O’Connor, J., concurring) (finding that direct funding to private schools
including religious schools does not violate Establishment Clause, since the
distribution is evenhanded and there is no evidence that funds given to
religious schools was used to indoctrinate)
[7]See also, Stone v.
Graham, 449 U.S. 39 (1980) (finding that required public school classroom
posting of Ten Commandments, even with a disclaimer stating that it has no religious
intent, is unconstitutional); School District of Abington Township,374
U.S. (ruling that required teacher-led Bible-reading in public schools, even
while allowing for parental permission not to participate, is
unconstitutional); Lee, 505 U.S. (finding that public middle school’s
invitation to a local clergyman to perform an invocation and benediction at
graduation ceremony is unconstitutional); and County of Allegheny v. ACLU, 492
U.S. 573 (1989) (ruling that a nativity display on city property, not
surrounded by secular symbols, is unconstitutional because it sends the message
that the county promotes and supports Christianity)
[8]Rosenberger 515
[9]http://evolution.berkeley.edu/evosite/misconceps/IVAandreligion.shtml
[10]http://evolution.berkeley.edu/evosite/misconceps/VIQuiz.shtml#
[11]http://web.archive.org/web/20030603162611/evolution.berkeley.edu/project.html
[12]The” National Science Education
Standards” does have the imprimatur of the government: (1) It
was approved by the National Research Council, which was” organized by the
National Academy of Sciences in 1916 to associate the broad community of
science and technology with the Academy's purposes of furthering knowledge and
advising the federal government.”
(http://www.nap.edu/readingroom/books/nses/notice.html)(2) It was published by
the National Academic Press, “created by the National Academies to publish the
reports issued by the National Academy of Sciences, the National Academy of
Engineering, the
[13]“Scientists
do not debate whether evolution (descent with modification) took place,
but they do argue about how it took place. Details of the processes and mechanisms
are vigorously debated. Antievolutionists may hear the debates about how evolution
occurs and misinterpret them as debates about whether evolution occurs.
Evolution is sound science and is treated accordingly by scientists and
scholars worldwide.” (http://evolution.berkeley.edu/evosite/misconceps/IIBcrisis.shtml)
[14]Ibid.