After reading the majority opinion in the McCreary case, involving the posting of the Ten Commandments in a county courthouse, I am convinced that the ruling is extremely good news for those of us who are active in fighting the attempts of creationists (in whatever form) to weaken science education in public schools. But in order to understand why, some background is required. We’ve been waiting with great anticipation for this decision because it would involve the Lemon test, the set of criteria that the court has used (sometimes) for the last 35 years or so to determine whether a policy violates the Establishment Clause. The Lemon test has three prongs – purpose, effect and entanglement. In order to meet the test, a policy must have a clear secular purpose, have the effect of neither advancing not inhibiting religion, and must not unnecessarily entangle church and state.
In the battle against creationism in science classrooms, the purpose prong is very important because those who advocate putting creationism into classrooms invariably make pronouncements of religious intent. In the Dover case, for instance, the school board member who proposed putting “intelligent design” into science classrooms announced he was doing so because “someone died on a cross 2000 years ago” and it was time for someone to “take a stand for Him.” But in the course of the last few years, there have been many voices on the court for either modifying or even doing away with the Lemon test, particularly the purpose prong, and many of us feared that the McCreary case might be used to renounce the test, in part or in whole. The appellants in McCreary specifically asked the court to do away with the purpose prong, arguing that it was nebulous and impossible to truly understand the purpose of a person or governing body.
That would have been a serious blow to the legal strategy in the Dover case as well as potential future cases and would have deprived our side of a major legal rationale in our favor. Alas, our fears were for nought. Not only did the majority of the court not accept the arguments of the county’s attorneys, the majority opinion, written by Justice Souter, explicitly and resoundingly reasserts the validity of the purpose prong and its importance in adjudicating Establishment Clause cases:
The touchstone for our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. Epperson v. Arkansas, 393 U. S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 1516 (1947); Wallace v. Jaffree, supra, at 53. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the governments ostensible object is to take sides…
Indeed, the purpose apparent from government action can have an impact more significant than the result expressly decreed: when the government maintains Sunday closing laws, it advances religion only minimally because many working people would take the day as one of rest regardless, but if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable…
Despite the intuitive importance of official purpose to the realization of Establishment Clause values, the Counties ask us to abandon Lemons purpose test, or at least to truncate any enquiry into purpose here. Their first argument is that the very consideration of purpose is deceptive: according to them, true purpose is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent. The assertions are as seismic as they are unconvincing.
The ruling even goes on to note many cases in the history of such findings of purpose or intent, and specifically mentions the 1987 ruling that removed creationism from public school science classrooms as a model for both the importance and validity of attempting to discern legislative purpose:
The cases with findings of a predominantly religious purpose point to the straightforward nature of the test. In Wallace, for example, we inferred purpose from a change of wording from an earlier statute to a later one, each dealing with prayer in schools. 472 U. S., at 5860. And in Edwards, we relied on a statutes text and the detailed public comments of its sponsor, when we sought the purpose of a state law requiring creationism to be taught alongside evolution. 482 U. S., at 586-588.
Even O’Connor, who has often preferred an “endorsement test” instead of the Lemon test, wrote in her concurring opinion that determining purpose was important in this case because it “conveys an unmistakable message of endorsement to the reasonable observer.” Bottom line: We could not have asked for a clearer endorsement of the Lemon test, or the purpose prong specifically, than this decision. It appears that the rumors of Lemon’s demise have indeed been premature, and that is very good news for the future of sound science education in America.