I came across a reference to a law review note from last year in the Chapman Law Review. The note was by Stephen Trask, then a student at William Mitchell College of Law and, unsurprisingly, a graduate of Liberty University. It was entitled, Evolution, Science, and Ideology: Why the Establishment Clause Requires Neutrality in Science Classes. Since Chapman is Sandefur’s alma mater, I emailed him to see if he’d seen it and he said no, but he found it and sent me a copy of it. He described it as a “giant, steaming pile of crap”; he was being generous.
It’s simply one of the silliest bits of legal writing I’ve ever seen. Here’s the short version of his argument: evolutionism is a religion, part of the larger religion of secular humanism, and therefore teaching it without also teaching creationism violates the establishment clause requirement of neutrality between religion and non-religion. I presume he wrote such drivel with a straight face, but I’m afraid I didn’t read it that way. I especially found this argument amusing (discussing the Edwards v Aguillard decision):
The Court also operated on the assumption that the mere inclusion of creationism with evolutionism in the curriculum is an advancement of religion and an attempt to counterbalance and discredit evolutionary theory at every point. Consider this scenario: A philosophy teacher at a public high school will only teach proofs opposing the existence of God in his philosophy class, and he refuses to teach any proofs supporting the existence of God because he believes that the concept of God is religious and not philosophical. Religious fundamentalist parents at the school express their outrage that this teacher is teaching their students an atheistic belief system that is contrary to the Bible. Because of outrage expressed by the religious parents, the school district passes a policy requiring that teachers give equal time to proofs supporting and opposing the existence of God. How could this policy be constitutional under the Supreme Court’s analysis in Edwards? The teacher, after all, was just teaching the students philosophy, and religious parents do not have a right to counterbalance philosophical theories at every point with their personal religious beliefs. The statute lacks a secular purpose since the school only implemented the statute in reaction to outrage expressed by a specific religious sect, and including the proofs for the existence of God would clearly advance the religious viewpoint that there is a God. It is simply incorrect to believe that presenting both sides of an issue is somehow taking sides. Fairly presenting various perspectives on an issue is the essence of neutrality.
But he’s missing the absolutely obvious here: no teacher in a public high school could (or should) be teaching anything at all about the philosophical proofs for or against the existence of God. To do so would clearly be a violation of the neutrality requirement of the establishment clause. There is no need for a group of students to demand that the school give equal time to discussing the proofs for God’s existence; such a course would be unconstitutional as it was.
I”m sure Trask would respond by arguing that evolution is itself a religion and therefore violates the neutrality clause, but that is only the first clearly false premise of his argument. Evolution is a scientific theory. Like all scientific theories, it is discrete; that is, it explains a specific set of data and does not explain or attempt to explain things outside that data set. It is not a “belief system” or a “worldview” or whatever absurd catchphrase is popular these days; it is a discrete scientific theory.
Now, it’s certainly true that evolution conflicts with the tenets of some religious faiths, or at least with a subset of those faiths. But if that fact magically transforms evolution into a religion itself then every scientific theory must now be declared a religious view. There is hardly a single scientific theory that does not conflict with someone’s religious views. So let’s apply Trask’s argument that any scientific theory that conflicts with any religious belief is, in and of itself, a religious view and therefore in order to be neutral for establishment clause purposes, the school must “fairly present various perspectives” on each and every one of them.
Many religious groups believe that natural disasters like earthquakes and hurricanes and floods are sent deliberately by God as punishment for sin. Thus, applying Trask’s reasoning consistently, we must conclude that when schools teach about conventional meteorology or seismology they are teaching a religious viewpoint. The materialistic theory that earthquakes are caused by the movement of tectonic plates, according to Trask’s reasoning, must be part of “secular humanism”, an arbitrary attempt by the gatekeepers of knowledge to rule out all supernatural causes a priori.
What then must we do? Obviously we have to “fairly present various perspectives” on the issue. The government cannot teach that mainstream seismology is true despite being the only successful means of predicting and explaining earthquakes. Schools must henceforth “fairly present” the idea that earthquakes are sent by God to punish regions of the earth at various times for their sinful behavior. The same with meteorology, of course.
But how exactly does one “fairly present” such a “theory”? There is no actual evidence that could be marshaled in support of it. We can’t apply Divine Wrath Theory and use it to predict where or when earthquakes will happen, or tornadoes, or hurricanes. There is no weather report on the 700 Club based on Divine Wrath Theory – “Sodomy is up 14% in the midwest; there’s a 40% chance of an earthquake.” I can’t imagine how one could possibly “fairly present” that idea.
The same is true of even such basic ideas as the germ theory of disease. There are many religious beliefs that conflict with modern medicine, that argue that disease is either sent by God as punishment or by Satan to test our faith (and if the book of Job is to be believed, perhaps by a combination of the two working in concert). For that matter, we have Scientologists who believe that disease is brought on by engrams, Christian Scientists who believe that all disease is spiritual in nature, and so forth. By Trask’s reasoning, schools must present all these ideas fairly rather than the one that is actually supported by the evidence. One could go on with such examples all day long. Geocentrism, flat earthism, hollow earthism, pyramidiocy and every other crank religious or pseudo-religious idea would have to be taught alongside mainstream science if one is to apply Trask’s argument consistently.
For that matter, if one is actually to follow his argument to its logical conclusion, schools would be forced not to teach anything at all. If he really believes that evolution is a religious belief and teaching it violates the establishment clause, the solution to this is not to have the government teach more religious notions, but to have them stop teaching this one. But since his standard for what constitutes a religious idea is any scientific theory that conflicts with any religious belief, every single scientific theory must also be a religious idea and cannot be taught constitutionally.
But Trask will not apply his argument consistently, I suspect, because he almost certainly does not really believe it. It’s a transparent artifice by which he can justify getting his favored religious belief, creationism, into science classrooms. If he tried this argument in a court of law, or in a brief submitted to one, it would provoke little but laughter.