The following except from my article, “Zeal for Darwin’s House Consumes Them: How Supporters of Evolution Encourage Violations of the Establishment Clause,” published in Liberty University Law Review earlier this year, analyzes the decision in C.F. v. Capistrano Unified School District.

In that case, a federal district court judge in Southern California found that a teacher, Corbett, violated the First Amendment by attacking the religious viewpoint of creationism in a public high school classroom. A student sued and the judge found that some of the student’s claims had merit.

To give a preview of my argument regarding that case, the section of the article that discusses this case offers the following conclusion:

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.”

If selective enforcement of the law is a hallmark of tyranny, then we should be exceedingly troubled by both the constitutional implications and hypocrisy of the evolution lobby – behavior that opposes advocating ID and creationism on the grounds they are religious viewpoints, but expressly endorses public schools inhibiting, opposing, and disapproving of those purported religious viewpoints.

The excerpt below from the article expands this argument:

The Kitzmiller plaintiffs, and the district court ruling they won that declared ID unconstitutional, relied heavily on the Lemon test, which requires that the “principal or primary effect” of a law “must be one that neither advances nor inhibits religion.”²⁰⁴ The Lemon test would seem to prohibit government inhibition of religion with the same measure of force with which it bans the advancement of religion, for “[t]he government neutrality required under the Establishment Clause is . . . violated as much by government disapproval of religion as it is by government approval of religion.”²⁰⁵ Yet few cases have applied the inhibition of religion doctrine; as one federal appellate court lamented, “because it is far more typical for an Establishment Clause case to challenge instances in which the government has done something that favors religion or a particular religious group, we have little guidance concerning what constitutes a primary effect of inhibiting religion.”²⁰⁶ Nonetheless, that same court observed that “[a]lthough Lemon is most frequently invoked in cases involving alleged governmental preferences to religion, the test also accommodates the analysis of a claim brought under a hostility to religion theory.”²⁰⁷

The doctrine prohibiting government inhibition of religion can be traced through some significant U.S. Supreme Court cases. In the landmark case School District of Abington Township v. Schempp, the U.S. Supreme Court recognized that “the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.'”²⁰⁸ As noted, in Epperson the Court likewise held that “the State may not adopt programs or practices in its public schools or colleges which ‘aid or oppose’ any religion. This prohibition is absolute.”²⁰⁹ Consistent with this principle, in Board of Education of the Westside Community Schools v. Mergens, the Court ruled state action is impermissible when it “would demonstrate not neutrality but hostility toward religion.”²¹⁰ Likewise, the endorsement test prohibits “disapproval” of religion.²¹¹

Assuming ad arguendo that ID’s critics are correct in holding that ID is a religious viewpoint, then it should not only be unconstitutional for the government to “advance” ID, but also to “inhibit” ID. If ID is a religious viewpoint, the government may not violate the “absolute” prohibition against opposing it or showing hostility or disapproval towards it. Jay Wexler argues that public school teachers could send a message of disapproval towards religious views on origins if they suggest that “such beliefs are irrational or primitive compared with scientific views” or “make explicit first-person statements disapproving of religious viewpoints. . . .” ²¹² would certainly meet such a standard of disapproval.²¹³ Yet ID’s critics have expressed no apparent qualms about public schools showing such hostility towards ID. In fact, the Kitzmiller complaint explicitly lamented to the judge that under Dover’s ID policy, “[s]tudents will not be told of any flaws or weaknesses in intelligent design, much less that the scientific community does not consider it valid science.”²¹⁴ Apparently, the Kitzmiller plaintiffs saw no negative constitutional ramifications of teaching public school students about the “flaws or weaknesses” in the alleged “specific religious viewpoint and beliefs encompassed by the assertion or argument of intelligent design.”²¹⁵ Would such instruction be constitutional?

One lower court has attempted to address this question with respect to the critique of creationism (which is different from ID) in a public school. In the spring of 2009, a federal district court in Southern California issued a ruling in C.F. v. Capistrano Unified School District where student-parent plaintiffs “Farnan” filed suit after a history teacher, “Corbett,” made various statements during in-class instruction that Farnan found objectionable, including some instruction that allegedly disparaged creationism.²¹⁶
In balancing the interests of the parties, Judge James E. Selna recognized the complexity of the question, which reflected a “tension between the constitutional rights of a student and the demands of higher education as reflected in the Advanced Placement European History course in which Farnan enrolled.”²¹⁷ The judge continued:

It also reflects a tension between Farnan’s deeply-held religious beliefs and the need for government, particularly schools, to carry out their duties free of the strictures of any particular religious or philosophical belief system. The Constitution recognizes both sides of the equation.²¹⁸

Regarding Corbett’s free speech rights as a teacher, the court noted that “[t]o the extent that Farnan is arguing that Corbett may not put forth secular ideas because he would be creating a ‘secular religion,’ Farnan’s argument fails.”²¹⁹ The court stated that its ruling therefore “reflects the constitutionally-permissible need for expansive discussion even if a given topic may be offensive to a particular religion or if a particular religion takes one side of a historical debate” but that “[t]he decision also reflects that there are boundaries” to the permissibility of such district-sponsored speech.²²⁰

As to Farnan’s rights, the court observed that “the state may not affirmatively show hostility to religion”²²¹ and stated that its task was therefore to “apply the Lemon test to determine whether Corbett made statements in class that were improperly hostile to or disapproving of religion in general, or of Christianity in particular.”²²² The court’s analysis thus asked “whether, when looking at the context as a whole, a reasonable observer would perceive the primary effect of Corbett’s statements as disapproving of religion in general or of Christianity in particular.”²²³

Some of Corbett’s controversial statements regarding creationism included:

(1) “I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense.”²²⁴
(2) “[T]here is as much evidence that God did it as there is that there is a gigantic spaghetti monster living behind the moon who did it. Therefore, no creation, unless you invoke magic. Science doesn’t invoke magic. If we can’t explain something, we do not uphold that position. It’s not, ooh, then magic. That’s not the way we work. Contrast that with creationists. They never try to disprove creationism. They’re all running around trying to prove it. That’s deduction. It’s not science. Scientifically, it’s nonsense.”²²⁵

The court held that statement (1) ran afoul of the Establishment Clause, but that statement (2) was constitutionally permissible. When Corbett stated “an unequivocal belief that creationism is ‘superstitious nonsense’,”²²⁶ the court found this “primarily sends a message of disapproval of religion or creationism”²²⁷ and “therefore constitutes improper disapproval of religion in violation of the Establishment Clause.”²²⁸ The court found that Corbett could have criticized the other teacher who had taught creationism “without disparaging those views.”²²⁹ At the very least, then, it seems unconstitutional to critique religious viewpoints when the statements entail disparagement that is unnecessary or superfluous to the academic critique itself.

While the holding in C.F. in some sense validates this Article’s contention that there comes a point where critique of creationism is no longer constitutional, there is much room for criticism of the ruling. As noted, the court found that calling creationism “superstitious nonsense” is unconstitutional, but calling it “scientifically . . . nonsense” is permissible. Is this a distinction without a difference? The court found that statement (2) was permissible because in its context, Corbett was merely seeking “to distinguish generally accepted scientific reasoning from religious belief”²³⁰ and showing “that generally accepted scientific principles do not logically lead to the theory of creationism.”²³¹ In essence, the court held that statement (2) was permissible because Corbett was merely explaining why creationism is not scientific. Such instruction undoubtedly should be considered a legitimate endeavor for a public school teacher, for one can explain why a viewpoint is unscientific and religious without taking a position on the “ultimate veracity” of that view, or without critiquing that view as false.²³²

In this regard, Corbett’s instruction in statement (2) might have been constitutional had it actually fit the court’s description. But when allegedly trying to convey that creationism is unscientific and religious, Corbett equated belief in creationism with belief in “magic” or “a gigantic spaghetti monster living behind the moon,” and then called creationism “scientifically . . . nonsense.” Was all of this necessary? When a public school teacher compares a religious viewpoint to such outlandishly false and nonsensical fictions, whatever the purpose, the objective reasonable observer would undoubtedly perceive a primary effect that is disapproving. Corbett’s statement (2) seems to entail superfluous disparagement that is unnecessary for the critique itself, and certainly seems to meet Wexler’s standard of denigrating religious beliefs as “irrational or primitive compared with scientific views.”²³³ At the very least, Corbett could have easily explained why creationism is unfalsifiable and thereby unscientific, “without disparaging those views.”²³⁴ By placing creationism on par with obviously false and nonsensical viewpoints, Corbett was not only portraying it as unfalsifiable but also implying creationism is false, in effect employing the “unfalsifiable/false” fallacy which plagues so many other treatments of creationism in public school curricula described in Part III.A.1, supra.

But there is a deeper concern here beyond the C.F. court’s apparent failure to properly analyze all of the facts under its interpretation of the law. As noted in Part II.H, courts have consistently held that advocating creationism in public schools is unconstitutional. In this regard, this present author agrees with courts that there are certain core tenets of creationism– namely its adherence to supernatural or divine forces–which make it an unscientific and untestable religious viewpoint that cannot be constitutionally advocated in public schools. That having been said, there is a glaring asymmetry in the law when courts hold on the one hand that creationism cannot be advocated in public schools because it is not science, but on the other hand that it can be disparaged as “scientifically . . . nonsense,” also because it is not science. To put it another way, those who desire legal symmetry will find the law sorely lacking if advocating creationism is prohibited on the grounds that it is religion, but nonetheless courts permit public schools to critique, attack, and oppose these views as false. When the government takes an affirmative position on the truth or falsity of a religious viewpoint, it is on dangerous constitutional ground. As the U.S. Supreme Court unequivocally held, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . .”²³⁵ In other words, it is one thing to explain why a (purported) religious viewpoint is unfalsifiable (and thereby unscientific), but quite another to state or imply that the viewpoint is objectively and scientifically false. Yet as documented above in Part III.A.1, this latter offense is precisely what many textbooks do with regards to intelligent design or creationism.
Courts cannot treat these viewpoints like religion in order to strike down their advocacy, but then treat them like science (or ignore thinly veiled attempts like Corbett’s to paint them as false) 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.”

If selective enforcement of the law is a hallmark of tyranny, then we should be exceedingly troubled by both the constitutional implications and hypocrisy of the evolution lobby – behavior that opposes advocating ID and creationism on the grounds they are religious viewpoints, but expressly endorses public schools inhibiting, opposing, and disapproving of those purported religious viewpoints.

Full PDF available here.

References Cited:
[204.] Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added). See also Smith v. Bd. of Sch. Comm’rs of Mobile County, 827 F.2d 684, 690, 692 (11th Cir. 1987) (equating “inhibiting religion” with exhibiting “an attitude antagonistic to theistic belief” or attempting to “discredit it”).
[205.] Vernon v. City of Los Angeles, 27 F.3d 1385, 1396 (9th Cir. 1994).
[206.] Vasquez v. Los Angeles (“LA”) County, 487 F.3d 1246, 1256 (9th Cir. 2007) (citing Am. Family Ass’n., Inc. v. City & County of San Francisco, 277 F.3d 1114, 1122 (9th Cir. 2002), cert. denied, 537 U.S. 886 (2002)).
[207.] Id. at 1255 (citations and internal quotation marks omitted).
[208.] Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (citations and internal quotation marks omitted).
[209.] Epperson v. Arkansas, 393 U.S. 97, 106 (1968) (emphasis added) (citations and internal quotation marks omitted).
[210.] Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 248 (1990). See also Van Orden v. Perry, 545 U.S. 677, 683-84 (2005) (stating that the First Amendment “requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage”); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 845-46 (1995) (warning against state actions that “would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires”).
[211.] Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). See also Mergens, 496 U.S. at 249 (“the Act’s purpose was not to ‘endorse or disapprove of religion'”) (quoting Wallace v. Jaffree, 472 U.S. 38, 56 (1985)).
[212.] Jay D. Wexler, Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools, 56 VAND. L. REV. 751, 792 (Apr. 2003). Other scholars have suggested that if ID is religion, then banning the teaching of ID, much less critiquing it, could be unconstitutional. See, e.g. , Arnold H. Loewy, The Wisdom and Constitutionality of Teaching Intelligent Design in Public Schools, 5 FIRST AMEND. L. REV. 82, 83 (Fall 2006) (“[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”); Johnny Rex Buckles, The Constitutionality of the Monkey Wrench: Exploring the Case for Intelligent Design, 59 OKLA. L. REV. 527, 589 (2007) (“A school board’s secular public justification for a decision to forbid the teaching of intelligent design may well constitute a thinly veiled attempt to suppress religiously grounded beliefs about human origins.”).
[213.] See supra Part III.A.
[214.] Complaint at 19-20, Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005) (No. 4:CV 04-2688).
[215.] Id. at 19.
[216.] C.F. v. Capistrano Unified Sch. Dist., 615 F. Supp. 2d 1137 (C.D. Cal. 2009).
[217.] Id. at 1155.
[218.] Id.
[219.] Id. at 1141 n.2.
[220.] Id. at 1156.
[221.] Id. at 1141 n.2.
[222.] Id. at 1141.
[223.] Id. at 1148.
[224.] Id. at 1146.
[225.] Id. at 1152.
[226.] Id. at 1146.
[227.] Id.
[228.] Id.
[229.] Id. at 1149.
[230.] Id. at 1152.
[231.] Id.
[232.] See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 745-46 (M.D. Pa. 2005) (“To conclude and reiterate, we express no opinion on the ultimate veracity of ID as a supernatural explanation. However, we commend to the attention of those who are inclined to superficially consider ID to be a true ‘scientific’ alternative to evolution without a true understanding of the concept the foregoing detailed analysis. . . . ID is an interesting theological argument, but . . . it is not science.”).
[233.] Wexler, supra note 212, at 792; see also sources cited supra note 212.
[234.] C.F. , 615 F. Supp. 2d at 1149.
[235.]W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); see also United
States v. Ballard, 322 U.S. 78, 86-87 (1944):

The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. . . . The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.

Id. (citations and internal quotation marks omitted).