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The Ninth Circuit’s Pattern of Double Standards and Denying Justice to Darwin-Skeptics

The Ninth Circuit’s recent refusal to rule on the merits of a case where a student alleged his teacher was disparaging creationist religious beliefs isn’t the first time it has denied Darwin-skeptics their day in court. In the past here on ENV, we’ve written about how the Ninth Circuit dismissed the Caldwell v. Caldwell lawsuit for lack of standing.

In the Caldwell case, Jeanne Caldwell, a parent of public school students in Roseville, California, filed suit against the director of UC Berkeley’s Museum of Paleontology, who oversaw the production of a website for teachers called “Understanding Evolution.” Caldwell’s complaint alleged that the website “advocat[es] that teachers use public school science classrooms to proselytize minor students to adopt the government’s preferred religious beliefs and doctrines regarding evolutionary theory.”

The Understanding Evolution website was funded with a $500,000+ government-sponsored National Science Foundation grant awarded to UC Berkeley staff, with various National Center for Science Education staff members helping to develop the site. The website states that it is a “misconception” to believe “[e]volution and religion are incompatible” or that “one always has to choose between [evolution] and religion.” Clearly preferring religious sects that accept evolution, the site asserts that “[m]ost Christian and Jewish religious groups have no conflict with the theory of evolution.” The Caldwell complaint also lists the example that “the ‘Misconceptions’ web page includes a cartoon depicting a scientist shaking hands with a religious pastor holding a Bible with a cross on it, intended to convey the message that there is no conflict between religious beliefs and the theory of evolution.”

The website links to pages discussing religious groups that have issued theological statements accepting and endorsing evolution. The list only contains statements from such organizations that support pro-evolution theology, revealing an agenda to promote a particular brand of theology in the science classroom. As John West explains here, the website also contains a link to a lesson plan where NCSE’s Eugenie Scott encourages teachers to read pro-evolution theological statements to students in public schools.

The outcome in the Caldwell lawsuit was very similar to the outcome of this present case. As we reported here and here, the Ninth Circuit dismissed Caldwell’s lawsuit without regard to its merits. The court did so by holding that Jeanne Caldwell had no right to sue. As we wrote: “The court managed to avoid ruling on the merits of the case by dismissing the lawsuit due to an alleged lack of standing, thus avoiding a politically unpopular holding that [Pro-Darwin] academics had violated the establishment clause.”

Note the pattern: When the Ninth Circuit is confronted with a fact pattern that would hold evolutionists accountable for violating the Establishment Clause when promoting evolution, they take the easy way out and refuse to rule on the merits of the case.

Double Standards and Double Hypocrisy from the Darwin lobby
The Caldwell and Corbett cases illustrate two forms of hypocrisy on the part of the Darwin lobby:

First, Darwin lobbyists continuously try to censor scientific evidence that challenges Darwinian evolution on the false grounds that it’s religion, but the Caldwell case shows they encourage pushing religion into public schools when those religious viewpoints support evolution.

Second, Darwin lobbyists claim to defend the First Amendment’s Establishment Clause by trying to prevent teachers from advocating religion in the classroom, but don’t mind when religion that isn’t evolution-friendly is unconstitutionally disparaged in the classroom.

As noted in my recent article, case law shows the Establishment Clause likewise makes it illegal for the government to “inhibit,” “disapprove of,” “oppose,” “evince a hostility to,” show an “an attitude antagonistic to theistic belief,” or attempt to “discredit” religion. But at the Huffington Post, Steve Newton of the National Center for Science Education (NCSE) defends the teacher James Corbett stating, “If teachers are at risk of being sued every time they make a factual statement, it may have a chilling effect.” Of course Newton is correct, but that’s nothing like what happened in the C.F. v. Capistrano case. The C.F. v. Capistrano lawsuit suit is not about preventing teachers from making factual statements. As Judge Selna rightly ruled at the lower court level, teachers need to find ways to make factual statements “without disparaging” the religious beliefs of students.

Corbett’s purpose was to argue that creationism is not scientifically testable; his purpose was valid but his execution was grossly flawed. There’s no problem with public school teachers explaining that creationism is not scientific, so long as they make that point without disparaging the religious beliefs of students by using labels like “superstitious nonsense.” Steve Newton, known for promoting scientism in public education, defends Corbett’s “superstitious nonsense” statement, so apparently he would defend unconstitutional disparagement of religion in public schools.

The reaction from the NCSE to the C.F. v. Capistrano lawsuit shows that the Darwin lobby is concerned with Establishment Clause violations only when they challenge evolution, and not when they benefit evolution.

The practical implication of the Ninth Circuit’s ruling is that public school teachers may denigrate, disparage, attack, and oppose the creationist religious beliefs of students however they want, because those teachers supposedly have “qualified immunity” and won’t be held accountable by the courts. But as soon as you start to critique Darwinism, you’re accused or promoting religion and doing something illegal. The double standard is astounding.

Ending the Double-Standard
I discuss both the C.F. v. Capistrano Unified School District case and the Caldwell v. Caldwell case in my law review article published last year, “Zeal for Darwin’s House Consumes Them: How Supporters of Evolution Encourage Violations of the Establishment Clause.” The conclusion of that article helps provide a solution to the double-standards problem discussed here:

[C]ourts 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. . . .”1 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 [in the article], this latter offense is precisely what many [Darwin lobbyists and 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. Creationism is properly 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 may be, 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,” Liberty University Law Review, Vol. 3(2):403-489 (Spring, 2009).)

In Edwards v. Aguillard, the U.S. Supreme Court held that “families entrust public schools with the education of their children . . . on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” But how can parents trust the Ninth Circuit when the court uses double standards, eagerly dispensing justice when it benefits evolutionists, but then refusing to address the merits of cases that might cut against the Darwin lobby?

The Ninth Circuit is showing a pattern where it uses double-standards to deny justice to Darwin-skeptics. Let’s hope this pattern comes to an end.

Case Cited:
[1.] West Virginia State Board of Education 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).