Yesterday, David Klinghoffer wrote about a public school biology instructor who emailed us to boast about how he uses his teaching platform to promote materialism to students. Though he was happy to call us all kinds of nasty names in his email, he refused to give us permission to quote from his letter.
Instead, David paraphrased, concluding:
I’m not a lawyer so I’ll leave to others the question of just how certainly this is a violation of the First Amendment’s prohibition of using public institutions to promote a religious faith — in this case, atheism.
Well, what are the legal implications of a teacher who promotes atheism in a public school?
In a law review article I published a couple years ago, “Zeal for Darwin’s House Consumes Them: How Supporters of Evolution Encourage Violations of the Establishment Clause,” I explain that merely teaching the evidence for evolution does not establish atheism. But if you’re including materialistic ideology alongside the teaching of evolution, this could have the effect of establishing atheism. And multiple courts have found atheism is a religion.
In the landmark case 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.”1 Government advancement of non-theistic or atheistic religious viewpoints would thus presumably be subject to the same limitations of the Establishment Clause as the prohibition against endorsing theistic religious viewpoints. Indeed, the U.S. Supreme Court has held that non-theistic viewpoints can qualify as religious when they “occupy the same place in [a person’s] life as the belief in a traditional deity holds,”2 “occupy … ‘a place parallel to that filled by God’ in traditional religious persons,”3 or comprise “an aspect of human thought and action which profoundly relates the life of man to the world in which he lives.”4 In one case, the U.S. Supreme Court explicitly mentioned “secular humanism” in an enumerated list of religious viewpoints.5
In 2005, the Court reiterated its view that religion should not be defined narrowly,6 and the 7th Circuit likewise observed that “the [U.S. Supreme Court has adopted a broad definition of ‘religion’ that includes non-theistic and atheistic beliefs, as well as theistic ones.”7 The 7th Circuit went on to note that “[t]he Supreme Court has recognized atheism as equivalent to a ‘religion’ for purposes of the First Amendment on numerous occasions.”8 Earlier, the 7th Circuit had observed that “If we think of religion as taking a position on divinity, then atheism is indeed a form of religion.”9 Clearly, atheism can be a religion for the purpose of constitutional analyses.
Claiming ID is Religion, and then Attacking ID: Kosher for Public Schools?
But this teacher isn’t just promoting atheism. He also said that he uses his classroom as a platform for attacking intelligent design. Now I personally have no legal or ethical problem with a teacher critiquing intelligent design in a public school science classroom. But in his email to us this teacher also praised the Kitzmiller v. Dover ruling, which means he thinks ID is religion, and that it’s therefore illegal to advocate ID in public schools. But then he also thinks it’s perfectly legitimate for a public school teacher to attack intelligent design. So is it legal to attack religion in public schools? Not according to many court rulings.
The Kitzmiller plaintiffs, and the 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.”10 The Lemon test thus prohibits government from inhibiting 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.”11 Few cases have applied the inhibition of religion doctrine, leading one federal appellate court to lament: “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.”12 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.”13
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.'”14 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.”15 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.”16 Likewise, the endorsement test prohibits “disapproval” of religion.17
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. Even the leading anti-ID legal scholar Jay Wexler admits 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. …”18
This exposes a hypocritical inconsistency in his legal reasoning — one that is all too common among Darwin defenders. I explain further in my law review article:
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 the 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 is 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.
But fair enforcement of the law is exactly what evolution activists don’t want. For them, this is a power struggle with the end-goal of indoctrinating students in one particular view, and censoring other viewpoints
Now my view is that ID is indeed a scientific viewpoint, and therefore should be considered perfectly legal to either advocate or critique in public schools. This teacher, however, wants to have it both ways — he wants it to be illegal to advocate, but legal to attack, intelligent design in public schools. In a society justly governed by law, double-standards like that simply cannot be tolerated. I strongly encourage readers to see my law review article, noted above, for more background and analysis.
[1.] Abington Township v. Schempp, 374 U.S. 203, 225 (1963) (internal citations and quotations removed).
[2.] United States v. Seeger, 380 U.S. 163, 187 (1965).
[3.] Welsh v. United States, 398 U.S. 333, 340 (1970).
[4.] McGowan v. Maryland, 366 U.S. 420, 461 (1961).
[5.] Torcaso v. Watkins, 367 U.S. 488, 496, fn 11 (1961).
[6.] McCreary v. ACLU, 125 S.Ct. 2722 (2005).
[7.] Kaufman v. McCaughtry et al. , 419 F.3d 678, 682 (7th Cir. 2005).
[8.] Kaufman v. McCaughtry et al. , 419 F.3d 678, 682 (7th Cir. 2005).
[9.] Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003).
[10.]  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”).
[11.] Vernon v. City of Los Angeles, 27 F.3d 1385, 1396 (9th Cir. 1994).
[12.] 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)).
[13.] Id. at 1255 (citations and internal quotation marks omitted).
[14.] Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (citations and internal quotation marks omitted).
[15.] Epperson v. Arkansas, 393 U.S. 97, 106 (1968) (emphasis added) (citations and internal quotation marks omitted).
[16.] 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”).
[17.] 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)).
[18.] 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.”).