In a newly published law review article, “Darwin’s Poisoned Tree: Atheistic Advocacy and the Constitutionality of Teaching Evolution in Public Schools,” attorney and former Discovery Institute research coordinator Casey Luskin examines the way courts have struck down the teaching of alternatives to evolution because of their historical associations with religion. At the same time, he notes that courts typically ignore anti-religious historical associations with Darwinism.

As Luskin documents, these associations are prevalent and well known. The result is a double standard, as courts hold alternatives to evolution unconstitutional to teach, but evolution constitutional.

Luskin notes that the solution to this problem is not removing evolution from schools. He vigorously opposes having evolution declared unconstitutional. Instead, he argues that religious associations of scientific views on origins science should not be constitutionally fatal, but rather should be considered an “incidental effect.” This interpretation would have implications for the constitutionality of teaching of intelligent design. While Discovery Institute opposes mandating intelligent design in public school curricula, we do think that it should be considered legal to teach in public schools.

Let’s see how courts approach the teaching of origins science, applying different legal tests when evaluating evolution and alternate theories.

When considering the teaching of origins science, courts typically apply the Lemon test (named for the case Lemon v. Kurtzman) to determine constitutionality under the Establishment Clause. The Lemon test states that, “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster ‘an excessive government entanglement with religion.'” Under this rule, only a “primary effect” that advances religion can cause a government policy to be declared unconstitutional; “secondary” or “incidental” effects are not constitutionally fatal. According to Luskin’s argument, historical associations between a scientific viewpoint and religion should be considered “secondary” or “incidental” effects compared to the primary effect of advancing scientific knowledge.

As Luskin explains, the first two prongs of the Lemon test have been meshed with Justice Sandra Day O’Connor’s “endorsement test.” The endorsement test asks if a statute conveys a government endorsement of religion. Merged with Lemon, this means that courts often ask, Is the purpose of the government to endorse religion with this statute? Or is the primary effect of the statute to convey government endorsement of religion? Courts examine these questions through the perspective of the “objective observer” — someone in the community who would be familiar with the full context in which the statute was enacted. They also ask whether the policy creates “outsiders” — those who may feel they are “not full members of the political community,” says Justice O’Connor, due to their beliefs or non-beliefs.

In cases concerning teaching alternatives to evolution, courts have employed the endorsement test and considered this hypothetical “objective observer” to be familiar with the history of Christian “fundamentalism.” Multiple courts have invalidated the teaching of alternatives to evolution because they are said to have a historical connection to this “fundamentalism.” Using the endorsement test, courts have found that these historical associations would cause an objective observer to feel that the government is “endorsing religion” when teaching such alternatives.

Yet, while courts have found religious historical associations of opposition to evolution to be grounds for declaring teaching these views unconstitutional, they have not considered evolution’s anti-religious historical associations germane to the discussion.

The district court noted in Selman v. Cobb County School District,”In light of the historical opposition to evolution by Christian fundamentalists and creationists[,] . . . the informed, reasonable observer would infer the School Board’s problem with evolution to be that evolution does not acknowledge a creator.” Although this court ruling was remanded, it was quoted in Kitzmiller v. Dover, and demonstrates how courts have considered teaching opposition to evolution in public schools as unconstitutional endorsement of religion. Other decisions taking this approach include Epperson v. Arkansas, McLean v. Arkansas Board of Education, and Edwards v. Aguillard.

But what about evolution? Are courts evaluating neo-Darwinism objectively? In a future post, I will discuss the history of anti-religious activism associated with evolution advocacy.

Flag pole outside U.S. Supreme Court Building, by USCapitol [Public domain], via Wikimedia Commons.