Dispatches from the Creation Wars

Beckwith on the Dover Ruling

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.

Comments

  1. #1 Tracy P. Hamilton
    February 16, 2006

    Beckwith’s argument I think boils down to:

    If ID is scientific, then it should be allowed to teach it
    in science class.

    I happen to agree with that.

    However, ID as currently formulated is not scientific. Beckwith has been fooled by Dembski and Behe’s bullshit,
    thinking it brilliance.

  2. #2 Reed A. Cartwright
    February 16, 2006

    What Beckwith ignores is that purpose of a law or policy often matters more to its implemention (effect) than the actual wording of the law.

  3. #3 Foggg
    February 16, 2006

    What’s the betting on how long before the Roberts/Alito/Scalia/Thomas/Kennedy Court rejects/completely reformulates the Lemon test?

  4. #4 Ed Darrell
    February 16, 2006

    Tracy,

    Read more of what Beckwith writes. I don’t think his argument is that ID would be constitutional if it were science, but that ID is constitutional because it is good science.

    At least that’s what he argues until he’s challenged, and if he’s challenged well he retreats to saying he doesn’t pass judgment on whether ID is science, though his writing assumes it.

    His argument is a form of begging the question: He assumes the truth of the point he is trying to prove.

  5. #5 Francis Beckwith
    February 17, 2006

    Ed (Brayton):

    Thanks for your comments. A couple of points I’d like to make. First, my lecture is based on a paper I have coming out in Hastings Constitutional Law Quartery in March. An earlier version of the paper is posted on the AEI.org website here: http://www.aei.org/events/f.video,eventID.1126,filter.all/event_detail.asp Second, you are correct that my lecture was a direct criticism of the “religious motive” version of the purpose prong. I agree that the purpose prong is legitimate insofar as assessing the legislative purpose of statutes (ususally place in statutes or discussed in committee). However, the purpose may very well be to advance religion, e.g., banning religious discrimination (since it enhances free exercie, to be sure), and still be constitutional, since the arguments for it are compelling. Third, the establishment clause has been applied to citizens in religious motive assessments, e.g., Cobb County disclaimer case. In this case, the motives of the citizen-supporters of the legislation were examined for religious motives. As I point out in my Legal Times article, “Sticker Shock”:

    “Judge Cooper concludes that the sticker fails this test, though this judgment is not based on the “views or reactions held by the Plaintiffs or the numerous citizens and organizations who wrote to the Board.” Rather, it is based on “the view of a disinterested, reasonable observer.” Such a person, fully conversant with the history of opposition to Darwin’s idea, would recognize that the assertion “evolution is a theory, not a fact” has its origin in antievolution literature published by creationists.

    Thus, an informed, reasonable observer would view the sticker as endorsing a particular view of evolution espoused by the religiously motivated citizens and public officials of Cobb County. This, according to the court, tells citizens who are staunch supporters of evolution that they are political outsiders.”

    Fourth, it is ironic that you cite the Edwards’ court citation of Wallace v. Jaffre, for that is one of the two opinions I use in my paper as a paradigm case of how the “religious motive analysis” is employed in a way injurious of free exercise values. Fifth, the newsreport of my talk is generally accurate, though you have to keep in mind that I spent very little time on the Dover case. I used it as my point of departure in crtiquing the “religious motive test.” I do agree that as a District Judge, Jones had pretty much no choice, given the jurisprudence in which he had to work. In fact, I admit that point in my lecture.

    And, finally, to the other Ed (Darrell): My position is that teaching ID in a particular way in a public school classroom is not unconsitutional, though as a matter of policy it is not a good idea to require it to be taught. I think that whether it is science or not is irrelevant, since the definition of science is itself in dispute. This is evident from the fact that under some definitions of science it is and others it isn’t. I also argue that ID is not religion under the federal judiciary’s understanding of that term. The important point in Establishment Clause law is not what counts as science, but rather, what counts as religion. For something can be “non-science” under one person’s definition of the term and still be not religion, and still be permissible to teach in public school science classes. For example, mathematics is not-science (according to most accounts), and it is not religion, and yet one could teach it in a public school science class. I hope that clarifies matters, for the zillionth time. :-)

  6. #6 386sx
    February 17, 2006

    For something can be “non-science” under one person’s definition of the term and still be not religion, and still be permissible to teach in public school science classes. For example, mathematics is not-science (according to most accounts), and it is not religion, and yet one could teach it in a public school science class. I hope that clarifies matters, for the zillionth time. :-)

    So now I guess they want ID taught in two places; science class and ID class. :-)

    That way they don’t have to worry too much about whether ID is science or not. :-)

    I think that whether it is science or not is irrelevant, since the definition of science is itself in dispute.

    I’m gonna remember that one the next time I’m on a date. :-)

    Have a nice day. :-)

  7. #7 Flint
    February 17, 2006

    Francis,

    I understand your train of thought, I think, but there are certain issues of either fact or interpretation on which the entire debate hinges. You have been thoughtful enough to present these all in one paragraph, which deserves some comment:

    My position is that teaching ID in a particular way in a public school classroom is not unconsitutional, though as a matter of policy it is not a good idea to require it to be taught.

    Unfortunately, neither Judge Jones nor the overwhelming majority of scientists can imagine what that “particular way” might be, that might be constitutional. After all, ID says “goddidit” in pretty transparent terms. How is this not straight religious doctrine? What ELSE could it be?

    I think that whether it is science or not is irrelevant, since the definition of science is itself in dispute. This is evident from the fact that under some definitions of science it is and others it isn’t.

    This statement might be well served by an example or two. The only definition of science I’m familiar with that permits ID to be presented is Behe’s, and his definition is dismissed as flat IN ERROR by nearly all practicing scientists. Pretending that one self-serving definition nobody else uses is “some”, and the definition used by hundreds of thousands of practicing scientists is also “some” is at the very best highly misleading.

    I also argue that ID is not religion under the federal judiciary’s understanding of that term.

    On what basis? Once again, ID is pure religious doctrine. It rejects the scientific understanding of evolution without doing ANY research, states conclusions based on no evidence, and those conclusions agree with creationist beliefs and nobody else’s. This is not religion?

    The important point in Establishment Clause law is not what counts as science, but rather, what counts as religion. For something can be “non-science” under one person’s definition of the term and still be not religion, and still be permissible to teach in public school science classes. For example, mathematics is not-science (according to most accounts), and it is not religion, and yet one could teach it in a public school science class.

    Yes, this is understood. ID is religious doctrine. Nothing but, nothing else. This is the one and only reason why it’s not legal to teach it in public schools. Yes, we know there are many non-religious materials which are also not science. We know these are legal. ID is religion. It is a statement of faith. It is not amenable to ANY scientific investigation, and its proponents (all devoutly religious) have not been able to even *suggest a testable hypothesis* since Behe’s book was written.

    On the stand, Behe was challenged to specify the mechanisms he said IC was “focused exclusively on”. He could not name a single mechanism. All he could do was state his conclusion: that an intelligence was involved. But what research provided the evidence on which this conclusion is based? Well, actually, there has been no research, there is no evidence. Behe’s conclusion was a statement of religious faith. And THAT is why it’s unconstitutional to teach it.

    I hope that clarifies matters, for the zillionth time. :-)

    Yes, I think it does. The only way creationists can hope to get their faith taught as scientific fact is to claim their faith is scientific fact. That it is no such thing does not deter them; that no working scientist agrees doesn’t bother them; that even non-scientist judges can see through this canard instantly doesn’t bother them either. Nobody is fooled. Nobody is going to believe your claim that religious doctrine (we conclude that the Designer did it without any research) is science. So it’s clear that’s the dishonest claim you must make to insert creationism into science classes. What is NOT clear is why you wish to do this. I presume this is a requirement of your faith?

  8. #8 WJD
    February 17, 2006

    Francis Beckwith said:

    I think that whether it is science or not is irrelevant, since the definition of science is itself in dispute.

    The only people disputing the definition of science are those who yearn to have their supernatural beliefs endorsed by it, and the post-modernists who think science is only a subjective social construct. For the overwhelmingly vast majority of people (including virtually all scientists) there is no such dispute, nor should there be.

  9. #9 Ed Darrell
    February 18, 2006

    Dr. Beckwith said:

    Thus, an informed, reasonable observer would view the [Cobb County schools' disclaimer] sticker as endorsing a particular view of evolution espoused by the religiously motivated citizens and public officials of Cobb County. This, according to the court, tells citizens who are staunch supporters of evolution that they are political outsiders.

    The legal point here is in danger of being lost. The legal point is not that anyone is told they are “outsiders,” but the fact that a governmental entity makes that statement in support of religion. It’s not illegal for government to tell you that you are an outsider, generally; it’s against our Constitution and Bill of Rights for government to take a stand on religion.

    As for your last paragraph, in which you claim that it might be legal to teach ID, is this a change from your position before the Texas State Board of Education in 2003? They start out with a legally unrebuttable presumption that science is defined well enough to teach — are you now arguing that astrology is fair game for Texas science classes, too?

    I confess to some great discomfort at discussing education in Beckwithian philosophical terms, which seem to authorize great flights from the reality of applied science, and what we need kids to learn.

    In the real world of education, teaching ID is just bad pedagogy. To fit it into any curriculum takes away time needed to discuss serious issues, and all demonstrations show that it confuses the kids about evolution, driving the kids away from required stuff they need for the Texas Assessment of Knowledge and Skills (TAKS), the SAT, ACT, and AP exams. It still seems to me at least slightly immoral to to that to kids, regardless what philosophy may justify it.

  10. #10 Richard Wein
    February 19, 2006

    Francis Beckwith said:

    For something can be “non-science” under one person’s definition of the term and still be not religion, and still be permissible to teach in public school science classes. For example, mathematics is not-science (according to most accounts), and it is not religion, and yet one could teach it in a public school science class.

    Mathematics is a special case, since it is clearly relevant to science. But I guess that even teaching an irrelevant subject–such as English literature–in a science class would be constitutional, since teaching English literature has a valid secular purpose, even if it’s not a scientific one.

    On the other hand, teaching ID is unconstitutional, whether in science class or any other class, because it is deceptive nonsense and therefore has no valid secular purpose. Its purpose is purely a religious one.

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