October 4, 2003. &Chi. TEACHING EVOLUTION.

The SEAL conference yesterday had an interesting but a bit odd session on "Intelligent Design". This was presented as a conspiracy by five or so evangelical Christian scholars from various disciplines to try to persuade the world that evolution theory is bunk and God created the world directly. What made it odd was that it took about three sessions before I could get much idea of what the Intelligent Design idea is. All the presenters were deeply hostile to the idea, which is fine, but I wish they'd stated the position they were attacking before the attacks. The attacks themselves were all on the motives, credentials, and publishing outlets of the "ID" people, it being taken for granted that they are wrong in their ideas.

That's not necessarily a bad way to have a session, but instead of being the discussion of the idea that I expected it was a discussion of the law nad sociology of the idea, an equally interesting, but different topic.

I haven't said what the idea is myself yet! Well, I may still be confused, but here is the idea I got. There are various schools of thought on the origin of species:

Standard evolution. Species arise as a result of random mutation. Natural selection decides which mutations survive.
Theistic evolution. Species arise as a result of random mutation and of mutation or other intervention directed by God. , and natural selection decides which mutations survive, perhaps with nudges from God.
Intelligent Design. This is just a school which criticizes the Standard Evolution approach and suggests that some other theory is needed.
Old-Earth Creationists. God created each species separately, and especially humans, at some point. Genesis is not to be taken literally, however, because the Earth is much more than 5,000 years old.
Young-Earth Creationists. God created each species separately, and especially humans, about 5,000 years ago.

The law of church and state in America is strange, and is one of the clearest demonstrations that constitutional law on certain subjects is merely the semi- rationalized biases of individual Supreme Court justices. A speaker said that there are no less than 7 distinct positions in the current 9-member Court on church-and-state issues. So it is hard to figure out what they like as a group. The general rule, however, is that a government organization's actions must have a secular purpose, a secular effect, and cannot entangle churches with the state.

I raised a couple of hypotheticals which show how silly this is.

The Moon Monolith. We discover on the moon a stone monolith saying "Jehovah created the world at 6 a.m. in the year 3 billion BC," and also describes a Unified Field Theory that works.
Some lobbyists say, "This should be taught in the high schools, not only because it is clearly true but because this will encourage people to believe in Jehovah."
Such school lessons clearly have a religious motivation and a religious effect. They would encourage Christianity. Should schools therefore ignore the evidence of the monolith?

The Incautious Hindus. A group of Hindus lobbies for an Indiana state law allowing evolution to be taught in Indiana schools. They incautiously admit that they favor the law because they think it would discourage Christianity. Nobody else lobbies for the law, but it does pass.
The law's purpose is clearly religous. Once it is passed, must Indiana schools stop teaching evolution?

The problem that both of these hypotheticals raise is that current Supreme Court doctrine focusses not on whether something taught in school is true or false, but on whether it has a religious motivation or a religious effect. This way of thinking is completely unscientific, of course, and is probably motivated by distaste for religion, although to be consistent, it would have to include results like that in The Incautious Hindus , where action with a purpose overtly hostile to religion must also be banned.

Judges don't have to be consistent in this way, of course, and they aren't. But a good point that someone raised at the conference was that the effect of this crazy jurisprudence is that schools are afraid to teach anything about evolution at all. If they teach evolution as an undoubtedly true theory, the Fundamentalists will sue them; if they teach it as anything else, the atheists will sue them. Thus, they are only safe if they avoid the subject. That is a victory for the Fundamentalists, of course-- especially for the Young Earthers who have the weakest logical position.

The idea that the Constitution says a government organization's actions must have a secular purpose and a secular effect is nonsense, of course, something that ought to be noted in any discussion on this subject. To appreciate the divergence between the rule of law and the rule of judges, you need to see the full Constitional clauses that are cited. Here is the 1st Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As you can see, the 1st Amendment plainly applies only to the federal government, not to the states. Indeed, it was passed precisely to prevent behavior by the federal government such as the U.S. Supreme Court has been engaged in-- imposing federal religious or anti-religious policy on the states-- and when the 1st Amendment was passed, more than one state had an established, official state religion.

But did the 14th Amendment change all that? Section 1, the Due Process Clause cited in Everson, says

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That has nothing to do with establishment of religion. The government still can spend money pushing views to which some citizens object, be those views religious or not; and it can still spend money on social policies such as education, whether using religious schools or not.

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