Appeals Court Vacates Cobb County Decision

A three judge panel for the eleventh circuit court of appeals has vacated the decision of the lower court in the Cobb County sticker case. At issue here was the decision by the Cobb County School Board to include the following stickers in its high school biology textbooks:

This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of liiving things. This material should be approached with an open mind, studied carefully and critically considered.

Now, there can be no serious question that this sticker is deeply stupid. There can also be no question that the main purpose for including this sticker in the books was to placate the religious conservatives of Cobb County.

But legally the question is whether the sticker is a violation of the Establishment Clause of the Constitution. And that question is genuinely murky. I can see a legal argument either way.

The ruling precedent for such cases is the Lemon Test. The first prong of this test requires that the government action have some secular purpose. The lower court judge found that the sticker passed this test. But the second prong requires that the government action not have as its primary effect the promtion of religion, and the judge found the sticker ran afoul of this prong.

Since two of the three judges on the panel (Pryor and Carnes) are known to be very conservative, I'm surprised they didn't simply reverse the decision. They could have said, “Of course the sticker is constitutional. It doesn't say anything at all about religion. It just talks about open-mindedness and the like!” Instead they found that the lower court judge had based his findings on assertions of fact that were not adequately documented in the evidentiary record. They are adamant that they are making no determination one way or the other on the legal merits. I would also note that they say nothing at all about the scientific issues. I would have preferred a strong affirmation of the lower court decision, but this result is not as bad as what I was expecting.

The NCSE has a brief commentary on the decision here. A PDF of the actual decision is available here. Fair warning: unlike the Dover decision, this one's a snoozer.