Tuesday, in Kitzmiller v. Dover Area School District, a federal judge in Pennsylvania ruled that the Dover school board violated the establishment clause by requiring ninth-grade biology teachers to read a statement to their classes. It stated that “Darwin’s Theory of Evolution” “is not a fact” and “has gaps,” and told students that intelligent design offered an alternative “explanation of the origin of life.” The statement then referred students who wanted to learn more about intelligent design to a book in the school library, Of Pandas and People.
Intelligent-design proponents argue that intelligent design is “science” and not “religion,” and should therefore be taught in the science classroom. Intelligent design is the idea that design, and not random genetic mutation and selection, accounts for the incredible biological complexity we see around us.
I am not sure they are completely right, but proponents such as Drs. Michael Behe and William Demski have forcefully defended their claims in debates, conferences, scientific articles, and popular books such as Darwin’s Black Box and The Design Inference. Even assuming, however, that intelligent design is not scientific but is instead religious, the Constitution–properly interpreted–does not exclude it from public-school classrooms. Unfortunately, the recent Dover case shows just how far the Supreme Court’s establishment-clause case law has strayed and also serves as a cautionary note to others who would include intelligent design in the public-school science classroom.
Since 1947 and Everson v. Board of Education, the Supreme Court has–with a few recent exceptions–sought to purge religion from the public square. In 1968 the Supreme Court ruled that Arkansas’s statute that prevented public schools from teaching evolution was unconstitutional, and in 1987 the Supreme Court struck down Louisiana’s “balanced treatment” statute that required equal time for “creation science.” In both cases the Court found that the religious purpose of the statutes’ proponents was key to their unconstitutionality. Given this precedent, the ruling in Dover is not surprising.
In Everson and subsequent cases the Supreme Court made the historical claim that the Establishment Clause erected a “wall of separation” between church and state. That claim has been subjected to withering criticism, and yet the principle of separation remains today in, for instance, the infamous Lemon test’s prohibition of a religious governmental purpose. It was this factor, more than anything else, that the judge in Dover relied upon to find the Dover board’s actions unconstitutional. As a result, the Supreme Court’s case law, because it is unhinged from the historic meaning of the establishment clause, remains deeply hostile to religion in the public square. So long as the Court’s current–incorrect–interpretation of the establishment-clause remains the law, it will beget more bad law such as the Dover decision.
It is not only the Supreme Court’s hostile establishment-clause precedent that led to the unfortunate result in Dover, because the facts of the case made the result even more likely. Judge Jones spent many pages in his opinion relating board-member statements showing the clear religious purpose of the Dover school board such as, “2,000 years ago someone died on a cross. Can’t someone take a stand for him?” Even the board’s attorney warned the board that the history leading up to its decision to require reading the statement–”a lot of discussion . . . for putting religion back in the schools”–would damage the board’s chances in a lawsuit. The “bad” facts of the case forced even a judge like Judge Jones, who was appointed by George W. Bush, to make bad law.
The vast majority of Americans are religious, and a large percentage are serious Christians. Teaching intelligent design in public-school science class is one of the current skirmishes in the larger battle over the role of religion in the public square. Americans who want their children exposed to alternatives to materialist Darwinism must work to prevent more bad law and “bad” facts that would push religion further out of the public square.
Americans can elect local, state, and federal representatives who will press for equal access for intelligent design–or other criticisms of materialist Darwinism–in science class or elsewhere in the curriculum. We can also work to ensure the appointment of federal judges who abide by the original meaning of the Constitution. The original meaning of the Constitution is the publicly understood meaning of the Constitution’s text when it was ratified. When judges follow the original meaning, they respect the democratic choices of our society and the limits of their office. Originalist judges will find, as Justice Scalia argued last Summer in McCreary County v. ACLU, that the establishment clause permits government to favor religion over irreligion or nonreligion. This would eliminate the establishment clause’s false hostility to religion.
Perhaps more immediately, we can encourage our school boards to be circumspect if they decide to include a discussion of intelligent design in the science classroom. Instead of presenting overtly religious arguments for intelligent design, present the strong–explicitly scientific–claims put forward by intelligent-design proponents such as the Discovery Institute in Seattle, Washington. Then, even under the Supreme Court’s current case law, federal judges will have a more difficult time declaring teaching intelligent design unconstitutional.
–Lee J. Strang is assistant professor of law at Ave Maria School of Law in Ann Arbor, Michigan. Professor Strang teaches property, constitutional interpretation, appellate practice, and federal courts. He has published extensively on constitutional law and interpretation.