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.