More About Legalities and Antievolution

By | 2007/05/14

In another article about Mitt Romney and theistic evolution, PZ Myers responds to some of the criticisms of his previous article.

PZ does make some good points: Romney’s statement manages not to be anti-science, but isn’t best described as pro-science; people should make sure to register their differences of opinion with their elected representatives or candidates and not give them a pass based on partial agreement with a stated position; and that textbooks written by theists are not necessarily bad science to be the focus of a lawsuit.

But I still think the PZ does not have the legal situation straight.

I predict the next trial will be completely different from the last one, unless it’s another loose-cannon old school creationist trying to sneak Answers in Genesis tracts into biology class. It’s not going to be tried on the basis of separation of church and state unless we want to be doomed: as I pointed out before, there’s more overt religiosity in the theistic evolutionist camp everybody loves so much than there is in this new book, so taking the tack of trying to tar it with that tenuous association with Howard Ahmanson and the same people who published Pandas is going to be futile. The DI’s careful avoidance of words that tripped the trigger of Judge Jones, and our own side’s sloppy endorsement of superstitious rationalizing for godly intervention in evolution, have closed the door on finding relief in the First Amendment.

The IDists are science-ignorant frauds, but they aren’t stupid, usually. The next fight is going to be harder.

The next fight will be harder. But it will still be fought on grounds of separation of church and state, and a failure in that case will not be due to any supposed difficulty in having theistic evolutionists as expert witnesses for the pro-science side.

First, church-state separation is pretty much it so far as grounds to object to the continuing anti-science menace from the Discovery Institute. I’ve already discussed this point. If PZ disagrees, what I would like to find out is what legal grounds he thinks will serve better. In that case, the complaint should be written to cover both church-state separation plus whatever PZ has as an alternative, if he is able to identify an alternative. Complaints can argue for relief on multiple grounds.

Second, applying the church-state separation objection is not a relative matter; it doesn’t matter in the least that a plaintiff is more religious than a defendant. What matters is the action and intent of the defendant in doing whatever it is that they did. Earlier in its history, the Southern Baptist Church was a frequent plaintiff using church-state separation to keep other doctrinal materials out of official government activities and policies, and they were successful in doing so. One of the plaintiffs in the McLean v. Arkansas case was a United Methodist bishop, IIRC, and that did not in any way jeopardize the legal effort there. This objection, that the relative religiosity of plaintiffs and defendant makes a difference, is a complete non-starter.

Third, the clear history of the courts has shown that the testimony of theists objecting to narrow doctrines of other theists being established by government authority has tended to increase the tendency to find a violation of church-state separation, not decrease it. The presence of theists as opposing expert witnesses is highly unlikely to be a bad thing in the context of a lawsuit which is argued, in part or in whole, on church-state separation grounds.

Finally, the DI’s past history is certainly going to be a centerpiece of any case concerning the new product. I don’t see how the issue of their funding and their past means of advocacy will fail to be found relevant to such a case.

As I put it elsewhere recently, what the antievolutionists have to offer is demonstrably a body of erroneous arguments taken from past antievolution sources. They cannot establish a secular purpose for teaching students falsehoods. They can be found to be pursuing religiously-motivated antievolution because that’s what the content of what they offer is comprised of. Church-state separation still applies forcefully to these circumstances. Sure, it will be harder to demonstrate what is going on if there aren’t folks dropping handy lines like, “Evolution is okay to be taught if it is balanced by something else, like creationism”, but it is certainly feasible to build a case even if the DI gets a perfectly implemented version of their game plan. A problem with this would be if, as I describe elsewhere, the courts establish new case law that substantially makes demonstrating a violation of church-state separation harder. That, though, has not happened yet.

8 thoughts on “More About Legalities and Antievolution

  1. Glen Davidson

    First off, overt religiosity is hardly the major issue. If it were, we’d have lost Dover, for it was the covert (if not well-covered) religiosity that did much to sink the IDists.

    Secondly, if science were somehow to be anathema to religion, if it were atheism in a particular sphere of practice, it would be in jeopardy of the First Amendment.

    This does not mean, to my thinking, that one cannot argue that science is generally erosive of religion. What it certainly is not is exclusionary toward religionists, nor to religion in general (that is, religion has little excuse to intrude on the practice of religion, however science is religiously neutral in its intents and goals).

    Nothing in the public realm has any business excluding religion or religious folk from its practices. And this is where PZ is treading on thin ice, for the legal thrust of his “argument” seems to be that if there is religiosity on both sides (he likes to argue that there’s more overt religiosity on our side, which is what supposedly makes it bad, but quantity of religion does not an argument make), courts cannot distinguish between one or the other.

    The social issue that matters with respect to evolution and creation in the public realm is that only one “side” is truly inclusive (never mind that a few whacko platonists or new agers not adhering to a religion per se might oppose evolution, or support ID), namely the science side. It hardly matters at all, for the sake of legality, whether or not a side has either atheists or theists on it, what matters is whether or not it has both on it. Theists have rights, and atheists have rights. What neither side has the “right” to do is to use the gov’t to enhance their sectional goals.

    So it doesn’t matter if we have religionists on our side, what matters is that essentially they lack atheists, agnostics, secularists, animists, Hindus, and Buddhists on their side. If some on our side like to parade Xians and other religionists as being evolutionists, it is not because we’re trying to portray ourselves as being the exclusive religionists that the other side essentially is, it is because we’re countering the lie that evolution is some attempt by atheists to exclude God/ID/religion (whether or not fronting theists is truly a good idea is another matter).

    PZ is arguing exactly backwards, presumably because he has lost sight of the fact that indeed science would be hard to argue (in the social realm) as science if it had only atheistic adherents. It’s the virtual lack of non-religious people on their side that indicates that they are a political/religious movement almost exclusively (yes, we could argue these matters out using science and the philosophy of science instead of bringing up social measures. However, the courts are always going to at least look at social indications of inherent exclusivity). And it is the presence of theists on our side that indicates that by no means is evolution a branch of atheism/secularism, as the IDist lies would make it out to be.

    Better not put PZ on the stand in the next round. He’d be making the false case of the IDists, that biology today is an adjunct of a particular viewpoint–materialism, atheism, secularism.

    Glen D
    http://tinyurl.com/35s39o

  2. Glen Davidson

    A minor correction, for the record. Where I wrote:

    religion has little excuse to intrude on the practice of religion

    I should have written:

    religion has little excuse to intrude on the practice of science.

    And I should say as well that I sometimes wrote that it doesn’t matter if we have religionists on our side, then wrote like it was a good thing. Obviously I meant that in a sense it doesn’t matter if we have religionists on our side (since science is neutral), but of course social measures of neutrality tend to take note of the inclusivity of science vs. the exclusivity of ID/religion.

    Just making things closer to clear….

    Glen D
    http://tinyurl.com/35s39o

  3. PZ Myers

    Talk about missing the whole point…

    First, church-state separation is pretty much it so far as grounds to object to the continuing anti-science menace from the Discovery Institute. I’ve already discussed this point. If PZ disagrees, what I would like to find out is what legal grounds he thinks will serve better.

    That’s what I’m saying: about the only round you’ve got loaded is the church-state separation argument. It’s becoming increasingly untenable, as the creationists respond to their defeats by honing their material to avoid ideas that will conflict with the first amendment. You admit that this is your only strategy, and you’re asking me, a non-lawyer, what other legal approaches we should take. Your myopia is apparent.I am also not arguing that we should purge our side of theists. I am stating a plain and obvious fact: the DI is striving for an increasingly secular front, while our side keeps trotting out its favorite Christian scientists. You guys are blurring the association of religion and science, while the bad guys are being more scrupulous about it. The DI may be totally fake about it and are hiding their motives, but they’re doing so with greater and greater skill; meanwhile, you’re enabling the blending of religious reasoning with science. The courtroom approach is looking doomed to me. They only have to win one, we have to win them all, and they are changing their tactics to get that victory, while all signs suggest that you guys aren’t planning to change your approach at all. And you really don’t see the problem with that?

  4. John Pieret

    You guys are blurring the association of religion and science, while the bad guys are being more scrupulous about it.

    Saying that science is independent of religious belief or disbelief is not blurring the association, it is making the proper association perfectly clear. The correct nature of science is that it can be done by anyone, Christian, Muslim, Spaghetti Monster Pirate, theist, atheist, agnostic and everything in between, as long as they observe science’s rules. What beliefs people have outside those rules is irrelevant to science.

    If you were to convince a court that science is atheistic, it would then rule that science violates the 1st Amendment every bit as much as ID does. Showing its plurality is helpful to a 1st Amendment case.

    But as I said at PZ’s place, there is no Constitutional prohibition of teaching science badly. If the DI and company restrict themselves to promoting bad science you are going to have to seek redress from a different forum than the courts.

  5. Steve Reuland

    I’ve posted my own thoughts about the legal issues. Quite simply, there is no means by which theistic evolutionists could hurt us in a court case. Yes, the IDists will get sneakier in trying to make ID look like it’s not religious, but the proper counter to this isn’t to sweep TEs under the rug (which would have no beneficial effect at all), it’s to show why the IDist pretense of secularism is a sham.

    It’s scarcely possible to advance religion without leaving behind a mountain of evidence that this is what you’re trying to do — evangelism is about spreading the word after all. The IDists lost in Dover because they had spent so much effort preaching to the true believers about the pro-religious aspect of ID that the judge didn’t buy their contradictory claim of religious neutrality. This will always be the case. The ID movement, or whatever eventually replaces it, cannot exist without true believers backing it. And true believers aren’t going to back it if it doesn’t advance their religion.

  6. Steve Reuland

    That’s what I’m saying: about the only round you’ve got loaded is the church-state separation argument.

    The church-state separation argument is the only round that can be loaded. There is no constitutional barrier to teaching bad science and lies. If you want to stop creationism, there are only two ways:

    1. Get the body politic to reject creationism so that legislatures and school boards quit trying to include it in science classes. (This may come as a surprise, but antagonizing religious believers doesn’t help on this front.)

    2. Get the courts to rule that teaching creationism is in violation of the 1st amendment.

    Let us know if you come up with another. Until then, we have to work within the context of the political and legal system we have.

  7. wolfwalker

    Wesley, you wrote:

    “If PZ disagrees, what I would like to find out is what legal grounds he thinks will serve better. In that case, the complaint should be written to cover both church-state separation plus whatever PZ has as an alternative, if he is able to identify an alternative. Complaints can argue for relief on multiple grounds.”

    Well, I’m not a lawyer, but I can see one other argument that might work. Bit of a longshot, though.

    The “Equal Protection” clause of the Fourteenth Amendment specifies that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” It might be possible to argue that knowingly teaching bad science in public schools is a violation of the Equal Protection clause.

    Personally, I think that the established caselaw and paper trail proves pretty convincingly that any book or organization that uses certain anti-evolution arguments is in fact religious-based creationism, no matter what its defenders might claim. I’d be really surprised if the creationists managed to come up with a book or curriculum that had no apparent relation to creationism. The only way they could get away with it is to make absolutely certain that there’s no evidence anywhere that any established creationist had anything to do with writing the thing.

  8. Austringer

    Church-state separation compliants are not “becoming increasingly untenable” due to inclusion of theistic evolutionists as expert witnesses. As I said on another thread here,

    This idee fixe of yours simply has no basis in any existing case law. There is no basis for exculpating a violation of church and state separation by trying to compare the infringing party’s religiosity to that of the injured party or their expert witnesses. If you want to push this line anymore, please provide a legal citation to back it up. Otherwise, I think it’s painfully obvious that your argument is unfounded.

    PZ:

    You admit that this is your only strategy, and you’re asking me, a non-lawyer, what other legal approaches we should take.

    We’ve asked the lawyers and legal scholars before about this. I already know the answer; I’ve even expressed what that answer was. I didn’t construct our legal system, and I don’t have the power to create a new legal right that can be used to protect science education. It’s rather like golf and playing the ball as it lies. We have church-state separation grounds to proceed upon anywhere in this country. Other grounds exist for certain special situations in various localities, but those are also not premised on protecting good science content from bad.

    PZ:

    You guys are blurring the association of religion and science, while the bad guys are being more scrupulous about it.

    In the first place, I think that your premise is misleading. I don’t condone anyone offering theology as if it were science. I’ve been consistent about this throughout my involvement in discussions on evolution and creation. One can discuss metaphysics about the relationship, if any, between theology and science without implying that science can or should incorporate theological concepts or even recognize them. So I think that you are conflating two distinct things, those being the content of science and the interface between science and religion. The association you speak of occurs, as I see it, in the latter and not in the former. It is clearly a discussion that is in the domain of metaphysics.

    Second, your assertion here is irrelevant, so far as I can tell, to the conduct of pursuing a church-state separation complaint. Again,

    There is no basis for exculpating a violation of church and state separation by trying to compare the infringing party’s religiosity to that of the injured party or their expert witnesses. If you want to push this line anymore, please provide a legal citation to back it up. Otherwise, I think it’s painfully obvious that your argument is unfounded.

    Further, the issue has already received notice in a federal district court decision, McLean v. Arkansas, where Judge Overton responded to the defense’s claim that evolution constituted a religion whose teachings should be “balanced” by teaching “creation science”:

    Assuming for the purposes of argument, however, that evolution is a religion or religious tenet, the remedy is to stop the teaching of evolution, not establish another religion in opposition to it. Yet it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause, Epperson v. Arkansas, supra, Willoughby v. Stever, No. 15574-75 (D.D.C. May 18, 1973); aff’d. 504 F.2d 271 (D.C. Cir. 1974), cert. denied , 420 U.S. 924 (1975); Wright v. Houston Indep. School Dist., 366 F. Supp. 1208 (S.D. Tex 1978), aff.d. 486 F.2d 137 (5th Cir. 1973), cert. denied 417 U.S. 969 (1974).

    We’ve been there and done that. The Arkansas defense took a shot at claiming that evolution was religious and got nowhere. The argument does not fly in court. It is not reasonable to pretend that it does.

    PZ:

    The courtroom approach is looking doomed to me. They only have to win one, we have to win them all, and they are changing their tactics to get that victory, while all signs suggest that you guys aren’t planning to change your approach at all. And you really don’t see the problem with that?

    At the point where church-state separation arguments become inapplicable (and I think that “Explore Evolution” is clearly vulnerable to that sort of complaint), I think that you have to pursue the alternatives for challenging proposed curricula on accuracy issues. These tend to be handled at more-or-less local levels. NCSE has a long history of aiding citizens’s groups in fights over textbook selection, for example.

    If you can’t convince a judge that what is being offered up is a collection of erroneous arguments with their provenance clearly coming from historical religiously-motivated antievolution, I think that it would be time to shift to countering their offerings where and how accuracy is regulated. This is likely to involve a lot more effort than a lawsuit that could establish nationwide precedent. And, of course, that is done via a political process, so the outcome is not as well-defined as in the legal process. It seems unlikely to me that having theistic evolutionists being notable participants in pro-science efforts in those circumstances could be considered a handicap, either. NCSE, of course, has long pursued out-of-court alternatives that foster good science education.

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