In my prior post, I critiqued ACLU-affiliated law professor Gary Williams for claiming that David Coppedge’s case “probably won’t have a shot in court.” If Coppedge has no case, then Mr. Williams must be saying that an employee discussing a matter relevant to the workplace and that is not prohibited by any employer policy–in a non-disruptive fashion–can be targeted when other employees expressing different views about the same topic are not penalized. But this is exactly what happened at JPL, a taxpayer funded entity: JPL has no policy against talking about intelligent design (ID), and permits employees to express viewpoints that are hostile towards ID, but when an employee expresses pro-ID speech, he’s suddenly harassed, investigated, demoted, and told to stop “pushing his religion.” But then again, I wouldn’t put it past an attorney affiliated with the ACLU to advocate for disparate and discriminatory treatment of the pro-ID viewpoint.
In the Kitzmiller v. Dover case, many will recall that attorneys working with the ACLU argued that ID is religion. They convinced Judge Jones to rule that Dover’s pro-ID policy violated the Lemon test, which says that the “principal or primary effect” of a law “must be one that neither advances nor inhibits religion.” (For a comprehensive rebuttal to the Kitzmiller ruling, see here.)
The law is clear that it’s illegal for public schools to advocate religion, but there’s also a long line of cases which prohibits the government from inhibiting, disapproving, opposing, showing hostility towards, or attempting to discredit religion. (See Van Orden v. Perry, 545 U.S. 677, 683-84 (2005); Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 845-46 (1995); Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 248-49 (1990); Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971); Epperson v. Arkansas, 393 U.S. 97, 106 (1968); School Dististrict of Abington v. Schempp, 374 U.S. 203, 225 (1963); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396 (9th Cir. 1994); Vasquez v. Los Angeles County, 487 F.3d 1246, 1256 (9th Cir. 2007); C.F. v. Capistrano Unified School District, 615 F. Supp. 2d 1137 (C.D. Cal. 2009).)
Yet the ACLU-scripted complaint in the Kitzmiller lawsuit explicitly complained that under Dover’s ID policy, no one would be attacking ID–what they deemed a “specific religious viewpoint.” You have to read this little snippet from the Kitzmiller complaint to appreciate its hypocrisy:
The purpose and effect of the policy are to advance and endorse the specific religious viewpoint and beliefs encompassed by the assertion or argument of intelligent design. Students will not be told of any flaws or weaknesses in intelligent design, much less that the scientific community does not consider it valid science. (pp. 19-20)
So the ACLU opposes advocating ID in public schools (because supposedly it’s religion), but would endorse attacking ID by discussing “flaws or weaknesses in intelligent design” in public schools. Using their own phraseology, they apparently would endorse public schools teaching “flaws or weaknesses” of a (purported) “specific religious viewpoint.” Is that legal? It’s certainly quite hypocritical for a group that claims to uphold the separation of church and state. To quote a law review article I recently published on this very point:
[Jurists] cannot treat these viewpoints like religion in order to strike down their advocacy, but then treat them like science … when they are being critiqued in order to sanction their disapproval. Either a viewpoint is religious and thereby unconstitutional to advocate as correct or critique as false in public schools, or it is scientific and fair game for both advocacy and critique in public schools. In this present author’s view, creationism should be considered a religious viewpoint that can be neither advocated as true nor critiqued as false in public schools, and intelligent design should be considered a scientific viewpoint that is fair game for both advocacy and critique in public schools. Whatever the solution is, there is presently a gross lack of legal symmetry, and an overabundance of jurisprudential hypocrisy, if a public school teacher cannot legally say that creationism or intelligent design are scientifically correct, but can call these views scientifically incorrect, or “nonsense.”
(Casey Luskin, “Zeal for Darwin’s House Consumes Them: How Supporters of Evolution Encourage Violations of the Establishment Clause,” 3(2) Liberty University Law Review 403, 444 (Spring, 2009).)
The ACLU promoted this very form of asymmetry and hypocrisy in the Kitzmiller case. A very similar form of this asymmetry and hypocrisy is essentially exactly what is going on at JPL, where employees are permitted to attack ID but when an employee expresses support for ID, he’s accused of “pushing religion,” ordered to stop advocating ID, and demoted. Unsurprisingly, an ACLU-affiliated law professor thinks JPL did nothing wrong.
Professor Williams may hope that “a case like his probably won’t have a shot in court” but it seems that Coppedge has uncovered gross hypocrisy and inconsistency at JPL. If there isn’t a legal remedy to prevent this kind of unfairness and hypocrisy, what hope do ID proponents have against those (like many ACLU types) whose true goal appears to be to suppress and censor pro-ID views, using whatever judicial vehicle they find convenient, whatever the cost?