Judge Clarence Cooper has ruled against the Cobb County school district regarding the evolution disclaimers:
"Rather, the distinction of evolution as a theory rather than a fact is the distinction that religiously motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement, and that was exactly what parents in Cobb County did in this case," he wrote."By adopting this specific language, even if at the direction of counsel, the Cobb County School Board appears to have sided with these religiously motivated individuals."
The sticker, he said, sends "a message that the school board agrees with the beliefs of Christian fundamentalists and creationists."
"The school board has effectively improperly entangled itself with religion by appearing to take a position," Cooper wrote. "Therefore, the sticker must be removed from all of the textbooks into which it has been placed."
As I've stated before, I have my doubts as to whether such disclaimers really should be unconstitutional. The judge here relied upon the Lemon test and appears to have ruled based upon the excessive entanglement clause. My fear, however, is that on appeal the Supreme Court might take this as an opportunity to do away with the Lemon test. And while Lemon is an unsatisfactory standard in my view, it could certainly be replaced by a much worse one. The full text of the judge's ruling is here. I have not had time to read it yet.
Update: This is very cool. On page 33-34 of the judge's ruling, he specifically cites the legal brief filed by the various state organizations, including mine, Michigan Citizens for Science, in answer to an argument made by the school district. That brief, by the way, was written by Timothy Sandefur. Nice work, guys.
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I have a hard time seeing this being used as a Lemon test case, especially if the Court wanted to ditch the Lemon test. The defendants are too unsavory - they're defending a factually wrong and clearly religiously motivated sticker. I can see the Court using this as a science/religion test case, if it were so inclined, but not Lemon. I imagine they'd prefer a case that didn't make the religious entanglement so corrosive.
Of course, the Court might (hope of hopes) be looking for a simpler, cleaner, and stronger test to supplant Lemon, rather than a weaker one. In which case, I think they'd want a case in which the entangling party won. That might happen on appeal here, if this goes to the circuit.
I've heard pundits more clued-in than I suggest that the next Lemon-ish developments will probably come out of the RLUIPA proceedings. I'd be interested in seeing what kind of new test could come from that.
The judge probably used the Lemon test because it appears to be the most relevant. I haven't read the opinions in the Edwards case in a while, but I believe that the Lemon test was used there. And Lemon is good law until it is overruled. It strikes me that, if one isn't going to use what appears to continue to be good law for fear that it will be over-ruled, it might as well not exist--it's tantamount to an over-ruling in fact, if not in law.
That said, while the applicability of the excessive entanglement portion of Lemon to the Cobb County isn't entirely dubious, from what I know of the case it isn't entirely obvious, either. Have to check some of the law blogs in the morning and see if anyone has commented on it. If the case is appealed, the decision could be overturned because of lack of excessive entanglement, while retaining the Lemon test.
raj-
the more I read this decision, the less happy I am with it. It doesn't seem terribly well written and seems pretty likely to be overturned.
I don't like the opinion much either, but mostly because I think the "secular purpose" is clearly a sham. That prong should have been a slam dunk - how can you say that you're trying to promote critical thinking through a disclaimer that relies on misleading statements? "Evolution is a theory, not a fact" promotes critical thinking only when someone looks at it and says, "Wait a minute, that's a meaningless statement because it attempts to confuse two seperate meanings of the word 'theory.'"
As for the entanglement prong... well, Lemon is hard. I think it's probably fairly strong. The same use of the test survived the Fifth Circuit (185 F.3d 337, although I haven't read that case in a long time, so don't hold me to anything). If it could carry its own weight in the Fifth Circuit, it's got to have some gravitas.
No, the case could not be overturned due to lack of excessive entanglement. The judge is right that Agostini changes the entanglement analysis into an effect analysis, and asks whether the state's act conveys a message of endorsement. If the answer to that is yes, no other Lemon prong needs to be violated, because the law already violates the Establishment Clause.
I think the case is quite reasonable and satisfying. Sure, it would be nice to ding the School Board on the secular intent issue, but you can't have everything, and if you drive the religious folks into a corner, they'll just get more vicious, and do you really want to force school boards to do that? Especially you, Brayton, you Gouldian. I mean, I'd love it if school boards didn't give in an inch to the pressures of the religious community, but I'd also love it if I lived in the Land of Chocolate in a house with Charlize Theron and her twin sister.
No, the case could not be overturned due to lack of excessive entanglement. The judge is right that Agostini changes the entanglement analysis into an effect analysis, and asks whether the state's act conveys a message of endorsement. If the answer to that is yes, no other Lemon prong needs to be violated, because the law already violates the Establishment Clause.
I was unaware of Agostini. And after reading your analysis of it and Petit's, I'm feeling a lot better about it.
I think the case is quite reasonable and satisfying. Sure, it would be nice to ding the School Board on the secular intent issue, but you can't have everything, and if you drive the religious folks into a corner, they'll just get more vicious, and do you really want to force school boards to do that? Especially you, Brayton, you Gouldian. I mean, I'd love it if school boards didn't give in an inch to the pressures of the religious community, but I'd also love it if I lived in the Land of Chocolate in a house with Charlize Theron and her twin sister.
LOL. Point taken. It just seems to me that it shouldn't be enough that the school board says "we have a secular purpose" to satisfy the purpose prong. This is similar to Scalia's dissent in Edwards, where he essentially says, "Hey, the legislature said they didn't think it was unconstitutional, so it's not". That just seems an absurd standard to apply. If all one has to do to avoid the intent prong is to claim a different intent, even if there is powerful evidence to the contrary, then there's little point in having one at all. But you're right to say that it's not necessary and perhaps even counterproductive, so I'll just focus on the good parts.