Posted by Frank Beckwith, a friendly rival on the question of intelligent design and the law, was a speaker at the Greer-Heard Forum that included many other prominent peopel on both sides of the ID question. The Baptist Press News has a report on his presentation, which a reader emailed me this morning. Beckwith, for those who may not know, is the associate director of the Dawson Institute of Church-State Studies at Baylor and, as such, his views deserve to be taken seriously. And if you’re beginning to suspect that my praise is setting him up for criticism, you’re correct; I like Frank, but I really think he’s wrong on this one.
His presentation apparently focused on the Dover ruling, for fairly obvious reasons. For less obvious reasons, perhaps, it appears that he focused his entire argument on one relatively minor aspect of Judge Jones’ ruling. That focus is hinted to in the title of the BP News article, Faith factors don’t negage intelligent design, prof says. The target here is Jones’ ruling on the purpose prong of the Lemon test; more broadly, it is that prong anywhere it is applied:
Francis J. Beckwith, associate director of the J.M. Dawson Institute of Church-State Studies and associate professor of church-state studies at Baylor University, told a New Orleans Baptist Theological Seminary forum that the striking down of a policy based solely on the religious motives of its adherents is “logically fallacious and constitutionally suspect.”…
“Religious belief is one of the few rights absolutely protected under the Constitution,” Beckwith said. “The government may penalize actions, not beliefs.
“Beliefs that propel a citizen to embrace particular policies may not be used by the government to limit a citizen’s legitimate liberties or powers,” he said.
To some degree, I agree with him on this. I don’t think the fact that a given policy is motivated by one’s religious beliefs, in and of itself, makes that policy violate the establishment clause. The civil rights laws are not unconstitutional merely because the leaders of that movement were mostly clergymen, nor does a legislator’s religious objections to, say, abortion make a law against abortion trigger an establishment clause violation.
But I think he is oversimplifying things considerably here and changing the predicate without telling us. The establishment clause does not deal with limits on a citizen’s legitimate powers but upon the government’s legitimate powers, nor does invocation of the establishment clause “punish” someone for their beliefs. Equally as important, the purpose prong is generally applied more narrowly than he suggests; that is, it is generally applied by asking whether a given policy really achieves the policymaker’s stated purpose. If it does not, that’s a pretty strong indication that the stated purpose may well be a cover up for the real purpose.
For example, a key part of the court’s ruling in Edwards v Aguillard was an examination of the Louisiana legislature’s stated purpose. Justice Brennan wrote, “While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” The ruling went into considerable detail on why the actual policy adopted did not further the stated goal, which was to insure “academic freedom’.
The court noted, for example, that the bill’s primary sponsor said that the goal of requiring the teaching of creation science whenever evolution was taught was actually to get rid of the teaching of evolution; by no logical standard could that be construed as insuring academic freedom. The court also noted that the goal of academic freedom is not advanced by a policy that mandates the teaching of one, and only one, clearly religious alternative to evolution. The Act mandated the preparation of teaching materials on “creation science”, but not of any other alternative.
Thus, the court logically concluded that the stated purpose was a sham, a mere cover for the real purpose. And to establish the importance of this finding, they cited Justice O’Connor in Wallace: “It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws. That requirement is precisely tailored to the Establishment Clause’s purpose of assuring that Government not intentionally endorse religion or a religious practice.”
Likewise, Judge Jones in the Dover ruling goes beyond merely asking if the board was motivated by their religious faith, asking more specifically whether the board was seeking to have that faith endorsed in official school policy and, equally as important, attempting to cover up that fact with dishonest statements of purpose. And on that count, the record was very, very clear. Not only was the board’s intent in passing the policy to advance and endorse a particular religious viewpoint, several of the members of that board also outright lied under oath to pretend otherwise.
There are a couple of other things that need to be said. First, bear in mind that Judge Jones is a district court judge. Regardless of whether one accepts the purpose prong of the Lemon test to be a good standard or not, a lower court judge is still bound to apply it. There is a great deal of confusion in the Supreme Court’s various precedents on the establishment clause and Judge Jones wisely chose to evaluate the Dover policy based on any of the criteria that a higher court might choose to apply. Thus, his ruling included long sections not only on the purpose prong, but on the effect prong and on the endorsement test as well.
Second, and most importantly, even if you eliminate the purpose prong analysis from the ruling entirely, the result would still be the same. It’s the effect prong material that is most important. Regardless of the school board’s ostensible intent or purpose, if the idea being espoused is an inherently religious position being dishonestly dressed up in scientific-sounding language in order to escape judicial scrutiny, it is still clearly an establishment clause violation. This is an issue that Beckwith did not address at all in his presentation.
So even if he is absolutely correct in his objections to the purpose prong – and his objection is clearly to that prong itself, not to the specific application of it in this case – it is still not a compelling criticism either of Judge Jones’ use of that test in Kitzmiller (he had no choice but to use it) or of the final conclusion he reached.
February 16, 2006
February 17, 2006
