Dispatches from the Creation Wars

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, 15–16 (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 government’s 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 Lemon’s 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 58–60. And in Edwards, we relied on a statute’s 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.


  1. #1 Ginger Yellow
    June 27, 2005

    Um, Justice Souter, Sunday being a day of rest has nothing to do with Christ, except insofar as Christians observe the sabbath on a different day to Jews and Muslims.

    Ed: what’s the explanation for allowing the Texas monument? How does it differ from the others? Do you agree with the ruling on that front?

  2. #2 Dan
    June 27, 2005

    I agree that McCreary is significant within the ID context. It reaffirms the crucial role of the purpose inquiry and makes clear that the inquiry can take into account relevant historical facts. This is bad news for the ID faithful in Dover; its also a real bummer for those in Kansas who want ID in the science classroom. The Kansas hearings will provide plenty of purpose-based ammunition with which to defeat ID there. As long as courts must look at the actual purpose behind ID-in-the-science-classroom efforts, it stands little chance of success.

    McCreary also demonstrates, though, the exceptionally tenuous nature of Establishment Clause doctrine. Justice O’Connor’s swing vote was the deciding factor, and my guess is that her vote explains the unmistakable endorsement overtones that permeate the majority opinion. Replace O’Connor with McConnell, as just one example, and the dissent wins. The same is likely true with many of those on the Bush short list.

    In short, I’m satisfied with this outcome, but I don’t think it represents stable jurisprudence. Once the makeup of the Court changes, I think the Establishment Clause will, too.

  3. #3 Ed Brayton
    June 27, 2005

    Ginger Yellow wrote:

    Ed: what’s the explanation for allowing the Texas monument? How does it differ from the others? Do you agree with the ruling on that front?

    I haven’t gotten around to reading any of the decisions in Van Orden yet, so I can’t say for sure. I suspect that context had a great deal to do with it, however, since the monument is one of over 15 other such monuments on the grounds of the capital building there, which might mitigate arguments based on either the purpose prong or an endorsement test. But I’ll post more on that when I’ve had a chance to read it.

  4. #4 Ed Brayton
    June 27, 2005


    The first thing I thought when I read Souter’s decision was “well at least Dan doesn’t have to rewrite 20 or 30 pages of his article now.” I also agree with your assessment of the tenuous nature of both rulings. Given the splits on the court on this, I knew it was unlikely that the two cases would reach the same conclusion. And if they did, it was far more likely to go the other way in terms of scrapping Lemon. So I’m happy with the McCreary ruling saying what it did, but I also agree that there will be many more cases coming and a slight shift in the court could well reverse course.

  5. #5 Dan
    June 27, 2005

    what’s the explanation for allowing the Texas monument? How does it differ from the others? Do you agree with the ruling on that front?

    I won’t presume to speak for Ed here, but I can offer an explanation. Justice Rehnquist wanted to uphold both displays but he couldn’t get O’Connor’s vote in either case. His plurality opinion in Van Orden rests on nothing more than historical grounds. Essentially “we’ve done this in the past, so we can do it again.” History, standing alone, is in my view an exceptionally weak ground on which to base constitutional doctrine. Especially the history in an area like the Establishment Clause, where there is anything but agreement on what the history means. It isn’t surpising that Justices Scalia and Thomas signed on; Justice Kennedy has made clear in prior decisions that he simply doesn’t see displays like this one posing any danger of establishment. Justice Breyer’s concurrence in the judgment relied, at least nominally, on Lemon, but in the end, one gets the feeling that he just said “it’s a close call, it doesn’t seem too bad, and no one’s complained for 40 years, so it’s OK.” All in all, doctrinally, Van Orden is pretty meaningless, I think. McCreary is far more significant, at least for the time being.

  6. #6 Dan
    June 27, 2005

    The first thing I thought when I read Souter’s decision was “well at least Dan doesn’t have to rewrite 20 or 30 pages of his article now.”

    LOL. It would have been damned inconsiderate of the Court had it written an opinion forcing me to re-write my article. I’ll send off a nice thank-you note to Justice Souter!

  7. #7 Dan
    June 27, 2005

    Jack Balkin has a spot-on analysis of Scalia’s dissent in McCreary. Here’s an interesting question that I’ve seen posed before with regard to Justice Thomas, but it also applies to Justice Scalia. Do you suppose they’d write differently if they knew they were the 5th vote? It’s one thing to opine about non-incorporation or government endorsements of monotheism when one knows that what one is saying makes little difference in practical terms. Would they continue to espouse these positions if it really mattered? The answer is a bit…unsettling.

  8. #8 Ed Brayton
    June 27, 2005

    I just read Balkin’s analysis, and it led me to write an analysis of another aspect of Scalia’s decision, which I’ll probably post tomorrow. I’ve posted enough for one day!

  9. #9 Jon Rowe
    June 27, 2005

    I’ll check Balkins post. I have a feeling he’s stealing the Thunder of a post I’m working on now.

  10. #10 raj
    June 28, 2005

    Ginger, the fact that the Supremes allowed the Texas display is that its original purpose was that its erection was that it was nothing more than a movie ad–for Cecil B. DeMille’s Ten Commandments movie. A silly movie shown every year by ABC around Easter time.

    Lots of puns in there, but it’s true. And it’s odd that so many people put so much stock in what was little more than a movie ad.

    In the KY case, the display was not a movie ad. Nor was the Roy Moore’s rock (the Alabama case). Those displays were erected for explicitly religious reasons. And the erectors said so at the time.

  11. #11 raj
    June 28, 2005

    Balkin’s post is very good.

    Scalia is what JFK was feared to be in the election of 1960: an agent of the Harlot Vatican, the Whore of Babylon. JFK wasn’t, but Scalia apparently believes himself to be.

    (I’m being sarcastic)

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