Dispatches from the Creation Wars

Jay Wexler of the Boston University School of Law has an upcoming article in the Washington University Law Quarterly which responds to the arguments of Francis Beckwith concerning the constitutionality of teaching ID. Beckwith is a Discovery Institute fellow and the associate director of the Dawson Center for Church-State Studies at Baylor. He is also a friendly adversary who has posted comments here from time to time. He has argued for many years that it is not unconstitutional for public schools to teach ID in science classrooms.

You may recall the brouhaha that erupted between Brian Leiter, UT law professor, and Lawrence VanDyke, then a Harvard law student, a couple years ago. That fight involved a book note that VanDyke wrote in the Harvard Law Review endorsing the thesis of Beckwith’s 2003 book Law, Darwinism and Public Education: The Establishment Clause and the Challenge of Intelligent Design. Leiter attacked VanDyke rather viciously over that endorsement and I became involved when I jumped in to argue that, while Leiter was unduly harsh in his language and tone, he was right on the substantive issues. That led to several exchanges between VanDyke and myself, which you can find here.

Wexler mentions that incident briefly at the beginning of his article, then moves on to examining Beckwith’s arguments for the constitutionality of teaching ID in public school science classrooms. He begins by pointing out the essential mistake that Beckwith makes in evaluating whether ID is religious in nature. Rather than evaluate that question, Beckwith proposes to evaluate whether, under various court precedents, ID constitutes “a” religion:

Beckwith argues that ID is not a religion because it is not a conventional religion like Christianity or Judaism but rather a “point of view based on philosophical and empirical arguments,” one that simply provides
answers to the same question that evolution answers, namely: “What is the origin of apparent design in biological organisms and/or other aspects of the natural universe?” Beckwith also argues that ID is not a religion under the
prevailing Court of Appeals test because ID does not address fundamental questions, is not comprehensive in nature, and is not accompanied by formal or external signs (like rituals, services, clergy, holidays) that are associated with those belief systems generally recognized as religious.”

But as Wexler points out, this is the wrong question to ask. The issue is not whether ID is an actual religion, but whether it is essentially religious in nature. There is quite a difference between asking whether an idea or practice is religious and asking whether it is a religion. As Wexler argues, Beckwith’s reasoning would reverse virtually all of the Court rulings on religion and public schools. Prayer is also not, in and of itself, a religion, but it is clearly a religious practice; thus, to require that all students engage in that practice is clearly an establishment of religion.

The rest of the article is well worth reading, though I don’t agree with all of Wexler’s arguments. One of these days, I’ll get around to writing a more thorough review of all of these important articles. I should also note that Timothy Sandefur has an upcoming article on the same subject in the Kansas Journal of Law and Public Policy, which I hope will be available online at some point after it is published. There is also this very long article, also from the Washington University Law Quarterly, written by Matt Brauer, Barbara Forrest and Steven Gey.

I should also note that Beckwith posts a very brief response to some fairly rude comments on this matter over at the Panda’s Thumb. At least one of the commenters there claimed that Frank is essentially a theocrat, which is crude and inaccurate. I’m frankly getting a little tired of hearing such accusations thrown around so casually. There are real theocrats in this country, and I’m as staunch a critic of the reconstructionists as anyone, but it’s lazy thinking to equate everyone who shares a theologically conservative Christian view with those people.

Comments

  1. #1 raj
    November 28, 2005

    Beckwith is affiliated with Baylor (which is owned by the Southern Baptists)? I was unaware of that. That will put a gloss on anything from him that I read.

    One of the things that I find amusing is that the IDers are singularly unwilling to present evidence for ID. I have a background in science (physics) as well as in law, and I know what evidence is.

    NB: apparently Beckwith is also associated with a Federalist society group blog, SouthernAppeal. They don’t like having dissenting opinions in their comment threads.

  2. #2 Ed Brayton
    November 28, 2005

    Yes, Beckwith teaches at Baylor. The mere fact that Baylor is a Baptist university shouldn’t make you question him any differently though. Like most officially religious schools, Baylor long ago left most of its religious baggage behind except in ceremonial matters. Baylor is a top notch school by any measure and has many fine scholars, including many who are not Christians at all. Baylor is actually fairly liberal in most ways and even the Board of Trustees, all of them Baptist I believe, are far more moderate than you might imagine. The hiring of Dembski and Beckwith (not connected in any way, just coincidental) was a matter of some controversy and the family of J.M. Dawson, for whom the church-state studies institute of which Beckwith is associate director, lobbied in protest of his hiring because he is not as staunch a separationist as Dawson was. And it should be noted that pretty much the entire science faculty at Baylor strongly protested Dembski’s hiring. So the mere fact that Baylor is a Baptist school doesn’t mean much. It certainly isn’t Liberty University or Bob Jones, it’s much closer to a Wake Forest or a Depaul – nominally religious universities that long ago proved their scholarly merit.

    And yes, Beckwith does write for Southern Appeal, a conservative legal blog that I actually enjoy quite a bit. We have major disagreements over many things, but they’ve got a bright bunch of scholars over there. And as usual with bright folks, their positions on some issues will probably surprise you if you think they are closely defined by casual labels like “conservative”. Feddie (the grand poobah of Southern Appeal), for instance, despises Roy Moore even more than I do, for crying out loud.

  3. #3 raj
    November 28, 2005

    I beg to differ, Ed, on two grounds.

    One, Baylor has recently discriminated against gay people. As far as I’m concerned, that, in and of itself, is damning. The fact that they hired Dembski for their Polanyi ID center, and have kept him on-staff, is doubly damning. The idea that Baylor is anything other than a wholly owned subsidiary of the Southern Baptist Convention strikes me as being more than a bit questionable, if not absurd.

    Two SouthernAppeal is a Federalist Society blog, not a conservative blog. From what I have read of SA’s Feddie elsewhere (Legal Fiction), it is fairly clear that he is a Federalist Society adherent, if not a member.

    NB: I used to go to SA, but haven’t done so for a while. I have been banned from commenting there. They do not like dissenting opinions. Typical.

  4. #4 Ed Brayton
    November 28, 2005

    raj wrote:

    One, Baylor has recently discriminated against gay people. As far as I’m concerned, that, in and of itself, is damning.

    I know the incident that you are referring to, and of course I agree with you that it’s shameful. But I don’t think that means one should look at anyone who teaches there as suspect. I say that because I know other professors there, including a couple of biologists, who are every bit as opposed to ID as I am, and who are equally appalled by what happened with the alumni who is no longer allowed to lecture classes because he’s openly gay. I condemn Baylor for that as well, but that’s not grounds to condemn or cast a jaundiced eye on those who teach there.

    The fact that they hired Dembski for their Polanyi ID center, and have kept him on-staff, is doubly damning.

    Except that’s quite an oversimplification of what happened. Yes, they hired Dembski and established the Polanyi center. But they had a major revolt of their science faculty, virtually all of whom are strongly pro-evolution and anti-ID, and a large number of their alumni and financial supporters. In the aftermath of that revolt, Dembski managed to offend virtually everyone and make even his supporters look bad and the administration closed down the Polanyi center and took away Dembski’s title. He had a 5 year contract with them, however, and they had to honor that. But they didn’t let him teach any classes or actually do anything, he just served out his 5 years and then left. He is now with a seminary in Louisville.

    The idea that Baylor is anything other than a wholly owned subsidiary of the Southern Baptist Convention strikes me as being more than a bit questionable, if not absurd.

    I disagree. First, Baylor was established by the Baptist General Convention in Texas, not by the SBC. In the Baptist world, Baylor is known as a haven of liberalism. Their board of trustees and their most powerful alumni are known for being highly independent-minded. I mentioned the protest of Beckwith’s hiring as associate director of the Dawson Institute. Does that sound like something a wholly owned subsidiary of the SBC would do? When the convention named a couple of prominent Baptist ministers to the board of regents there was a big uproar from alumni over the movement toward fundamentalism and it was reversed.

    Two SouthernAppeal is a Federalist Society blog, not a conservative blog. From what I have read of SA’s Feddie elsewhere (Legal Fiction), it is fairly clear that he is a Federalist Society adherent, if not a member.

    Well, the Federalist Society is a group of conservative legal scholars. SA is not an actual FedSoc blog, but is a blog run by a FedSoc member. Indeed, that’s the source of the name “Feddie”, whose real name is Steve Dillard. The fact that he is a member doesn’t make it a FedSoc blog, any more than this is an MCFS blog or an ACLU blog.

    Despite my disagreement with many FedSoc members, prominent (Bork) and irrelevant (Lawrence VanDyke), I find the recent scare mongering from the left over this group to be patently ridiculous. I’ve seen screed after screed calling them a “secret society” (secret? They couldn’t be more public, for crying out loud) and an “evil Illuminati” out to “attack America from within.” That rhetoric is every bit as idiotic as when those on the right call anyone against the war a “terrorist sympathizer”.

  5. #5 Mike P
    November 28, 2005

    Oh, coincidence just seems like it cannot be random, even though it is. I was recently reading a blog, 90% True, by a Baylor student who created a bit of stir in the ongoing science versus bible controversy. Another student had sent an email to the class objecting to the professor’s first day speech where he announced that he would not discuss the bible in his biology class. The blogger wrote a parody of the email and went a bit overboard. He ended up getting into trouble with the Baylor police.

    It would appear from that post that Baylor is fairly well divided on these culture war issues.

  6. #6 countlurkula
    November 28, 2005

    I hear Baylor’s admin has been trying to push the place in a more fundie-gelical direction lately (in hiring, for instance). Don’t know how well they’ve succeeded. As Ed notes, there is resistance among the rank and file.

  7. #7 Ed Darrell
    November 29, 2005

    Baylor had been headed by a fellow from the theology department, Sloan, who had aspired to make Baylor a top-level academic institution, but with a commitment to the Bible. Baylor’s faculty are, to a person so far as I know, committed to the “top-level academic institution” part, but as might be expected, there was some misunderstanding on the “commitment to the Bible” part. Baylor had been, up to that point, a staunch defender of traditionally Baptist freedom of thought. The chief point of conflict came precisely over that issue, and President Sloan’s actions which appeared to threaten that freedom to some.

    The long and the short is that Baylor’s governing authorities have been able to avoid all attempts at hostile takeovers by the much more conservative end of the Baptists, though there is still much action on that front. President Sloan got a vote of no-confidence from the faculty over several issues, including the Polanyi Institute thing (though once he was apprised of the problems, it appeared to me that Sloan acted quickly and honorably). Sloan has been gone for several months, and the school is under the direction of a member of the law school faculty.

    One of the signs of Baylor’s commitment to academic quality, to me, is that the biology faculty has never waivered in their dedication to teaching biology straight up, evolution especially. Nor has that ever been a serious issue except for some of the more radical dissidents to Baylor’s governance.

    Which means it is still true, as it has been since at least 1957 (and probably earlier), that every major Christian university in America teaches evolution in their science classes, and not any form of creationism including intelligent design.

    I wish Dr. Beckwith would spend adequate time getting acquainted with the science offerings close to his office door. As is true with most ID advocates (which Beckwith keeps claiming he is not, really), enlightenment is within their grasp on their own campus.

    Mr. Brayton, there are indeed some find scholars among the Federalist Society members. My experiences in the Washington, D.C., chapter persuaded me that one should be wary of the group. They are scarier as a group than as individuals. They are serious about replacing civil libertarians in judicial posts and throughout our justice, and we should never lose sight of that fact. The cavalier treatment of innocence as an issue in death penalty cases is a wake up call (‘innocence is not a good reason to re-open the case; the condemned man had a fair trial and subsequent evidence that proves he is innocent should not delay his execution’).

  8. #8 Ed Brayton
    November 29, 2005

    Ed-

    I’ve heard that portrayal of Scalia’s vote in a death penalty case before, but I’ve never seen the actual ruling. Do you know what the case is so I can look it up?

  9. #9 raj
    November 29, 2005

    Ed Brayton at November 28, 2005 01:31 PM

    I was unaware of the Baylor action that you were referring to. The Baylor action that I was referring to was their essential expulsion of a gay student by denying him a scholarship merely because he was gay. Which, because of the very high tuition there, essentially forced him to drop out.

    I did some checking over the internet, and I really do believe that the difference between Southern Baptist Convention and the entity that supposedly sponsors Baylor (something like “southern baptists of texas conventention” is more semantic than anything.

    Regarding their hiring of Dembski, let’s get something understood. Any decent contract lawyer would have drafted a contract that would have allowed Baylor out of a contract if the contractee (Dembski) embarrassed the contractor (Baylor). Any lawyer knows that. It’s almost like a morals clause. It isn’t that difficult to do. I’ve done it myself. The fact that Baylor did not do that is telling. It is probable that the primary reason that the tenured factulty of Baylor is revolting is because they are embarrassed by the Dembski hiring. Good for them. But it isn’t good enough, AFAIC.

    Why? The university’s management has shown that they are quite willing to (i) discriminate against gay students, and (ii) engage people who adhere to the ascientific speculation of Intelligent Design. What other attrocities would the faculty expect the Baylor adminstration to engage in?

    Regarding the Federalist Society, I click onto the Harvard Law School’s Federalist Society every once in a while. It is available through http://www.law.harvard.edu/students/orgs/fedsoc/

    I also concluded long ago that the FedSocs were basically nuts. I did the same with so-called libertarians. Beckwith might not want to be considered a FedSoc, but I’ll just point out. One is known by the company he keeps. I’ll just leave it at that. Read between the lines.

  10. #10 Ed Brayton
    November 29, 2005

    raj wrote:

    I also concluded long ago that the FedSocs were basically nuts. I did the same with so-called libertarians. Beckwith might not want to be considered a FedSoc, but I’ll just point out. One is known by the company he keeps. I’ll just leave it at that. Read between the lines.

    Then I frankly have to wonder why you continue to read this blog and, much of the time at least, appear to agree with the things that I say. Since I am myself a “so-called libertarian” (particularly when it comes to judicial theory) and the company I keep includes many members of the Federalist Society, I would appear to be twice as nuts as your average blogger! In all seriousness, I just think sometimes you view things in a stark black and white that doesn’t really apply (something I’m probably guilty of myself in other areas, admittedly). Baylor does something you don’t like, so everyone associated with Baylor is “suspect” in your view. Well, the real world just doesn’t work that way. A major university includes a huge range of viewpoints, and as Ed Darrell noted above, Baylor, despite its association with the Baptist church, has a long history of being very pro-evolution and staunch supporters of the separation of church and state. To judge everyone associated with it as suspect because of its association with a religious group you disagree with is unfair and inaccurate.

  11. #11 spyder
    November 29, 2005

    “Since I am myself a “so-called libertarian” (particularly when it comes to judicial theory) and the company I keep includes many members of the Federalist Society”

    I would hope that raj finds the same degree of wisdom and sophistication with your efforts Ed, as i do. While i too greatly disdain libertarians (particularly objectivist ones) and concur that the Federalist Society’s stated agenda is detrimental to the well being of this nation and justice for all; your posts are more coherent and philosophically sound than others. Please keep up the good work and if perchance you found some new more enlightened friends, so much the better.

    I guess the “young” tend to forget that most of the private universities in the US were/are religious institutions. If we were to nitpick amongst the Trustees of some of the finest, claiming that this or that administration harbors religious tendancies, we would lose sight of the vast wealth of knowledge and education that goes on.

  12. #12 Ed Brayton
    November 29, 2005

    spyder wrote:

    While i too greatly disdain libertarians (particularly objectivist ones)…

    How about “While I greatly disagree with libertarian ideas”? Or even “While I greatly disagree with this particular libertarian idea”? I’m sure that’s what you really meant, and it just seems so much more rational (not to mention nicer). I would certainly hope that people don’t dislike other people based on intellectual disagreements.

  13. #13 Red Right Hand
    November 29, 2005

    raj: “It is probable that the primary reason that the tenured factulty of Baylor is revolting is because they are embarrassed by the Dembski hiring.”

    I think a better phrase might be “are rebelling”. ;)

    The impression I got about Sloan was that he was an advocate of conservatism (and thus ID and the “new” creationism) on the Baylor campus, rather than a more moderate influence. But again, this is just the impression I got from reading about the controversy, not from any first-hand knowledge.

    Gotta agree with others concerning the Federalist Society. It isn’t so much the (so-called) conservative views of any single member; it’s just that collectively as a group, they ooze a kind of revolutionary fervor that creeps me out. Not conservatism, but a type of secretive right-wing radicalism, if you know what I mean. I’m not a tin-foil hat kinda guy, but something about them sets my spidey-sense to tingling.

  14. #14 Ed Darrell
    November 30, 2005

    Hmm. Longer note seems to have gone into the ozone. ////

    Leonel Herrera. The key death penalty case, for me, is Herrera vs. Collins, a Texas case in which, after the convicted man had exhausted his three allowed appeals, the real culprit stepped forward and confessed. Texas spent a couple of years arguing that innocence was no factor, that Herrera had been convicted fair and square, and so the fact that he was innocent could not be considered because he’d already exhausted his appeal. Texas argued all the way to the Supreme Court, and won. Herrera was executed. ////

    Of course, this was before Bush’s term, so he should not be expected to know that Texas sought and won the right to execute innocent people, right?

    Here’s the Findlaw link: http://laws.findlaw.com/us/506/390.html

    ////Herrera v. Collins, US 506 390 (1993)

  15. #15 Ed Brayton
    November 30, 2005

    thanks for the link, Ed. I’ve been wanting to read this one for a while now.

  16. #16 Ed Darrell
    November 30, 2005

    It’s a pretty stunning case, to me. I suppose my sensibilities are not so hardened as those of Scalia. It seems to me that we ought not be executing innocent men, no matter how long that practice is established as tradition. (I’m moved to comment by rereading Scalia’s concurring opinion.)

    There is some irony here, as well. Thomas, who complained of being figuratively “lynched” when the Senate deigned to question him again about credible allegations made against him, here agrees with Scalia that it’s not his job to defend a system that protects innocence, and thereby consents to a real, “legal” lynching (‘We convicted him fair and square; it don’t matter if he’s innocent, he’s gonna swing,’ as they say in back of the jail houses in Texas).

    One wonders how this rule will eventually get summarized for law students; perhaps, “Innocence is no defense.”