A recent law review article by self-described “liberal First Amendment theorist” Arnold H. Loewy argues that it is constitutional to teach intelligent design in public schools. Writing in First Amendment Law Review, Loewy points out that “[t]o allow all ideas about the origin of man that do not presuppose an intelligent designer, but forbid all theories that explore the possibilities of such a designer, expresses hostility, not neutrality, towards religion.” Similar to the position of Discovery Institute, Loewy does not believe that intelligent design should therefore be required in schools. But he does think that it should not be prohibited simply because many will perceive it has having “partial congruence with religion”:
I believe that teaching intelligent design in public schools is constitutional (outside of the unusual context of the Kitzmiller situation). First, under Establishment Clause doctrine, States may not disapprove of religion. And, a fortiori, courts cannot disapprove of religion. Of course, I am not arguing that a State must teach intelligent design. States are free within quite broad parameters to set their own curricula. As important as the question of intelligent design is, failure to teach it hardly constitutes disapproval of religion. But when the Court invalidates teaching a theory of origin because of its partial congruence with religion, that is disapproval.
(Arnold H. Loewy, “The Wisdom and Constitutionality of Teaching Intelligent Design in Public Schools,” 5 First Amendment Law Review 82, 88 (2006).)
This is precisely what Discovery Institute argued in its amicus brief to Judge Jones: religious or anti-religious implications do not prohibit a theory from being taught, and even if the Dover School Board had religious motive, that does not mean ID could not be taught in a different setting under a variety of legitimate secular pedagogical purposes. Loewy agrees, and he thinks ID should be permitted under free speech principles:
[I]nvalidating the teaching of intelligent design in public schools is flatly inconsistent with free speech principles. … If the Supreme Court ever gets a case, unlike Kitzmiller, where the School Board or Legislature’s apparent motive for integrating intelligent design into the curriculum is to maximize student exposure to different ideas about the origin of the species, and not to indoctrinate religion, the Court should uphold the provision.
(Loewy, 5 First Amendment Law Review at 89.)
As will be discussed in a forthcoming post, Loewy’s support for teaching intelligent design brought him a barrage of harsh ridicule (also in law review print) from a Darwinist attorney in the Kitzmiller case. Hopefully Loewy will stick to his position and not be intimidated into adopting the party line by the namecalling.