I wrote about the Cobb County evolution creation trial a few months ago on my other blog. After a bench trial, the U.S. District Court held that anti-evolution stickers were unconstitutional. Its opinion is here.
The case arises from a decision by the school board to place a sticker in the front of biology textbooks that says:
“This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with a n open mind, studied carefully, and critically considered.”
The plaintiffs, parents of children in the school district, claimed that the sticker violated the First Amendment’s Establishment Clause. The trial court held correctly but unfortunately, that there is no bright line for evaluating establishment clause claims.” Although I am generally in favor of such bright line evaluations, in this case, I can’t think of a workable bright line Establishment Clause test.
The test the Court used was set out by the Supreme Court in Lemon v Kurtzman 403 U.S. 602. In Lemon, the Court held that a government sponsored message such as the sticker in this case violates the establishment clause if it fails one of these three prongs:
1. It does not have a secular purpose.
2. It’s principal or primary effect advances or inhibits religion.
3. It creates excessive entanglement with religion.
In applying the first of the Lemon prongs, the court held that the sticker had a secular purpose—in fact two of them. First, the school board intended to encourage student critical thinking. Second, the school board wanted to reduce offense to those whose personal religious beliefs might conflict with the teaching of evolution.
The court noted that the school district had refused to teach evolution for many years and was updating its biology curriculum in 1999. Knowing there would be a significant objection from many families the school board sought to soften the blow by including the sticker. The court found that this was the main purpose of the sticker.
In applying the second Lemon prong, the court considered whether a disinterested reasonable person would conclude that the sticker contained an endorsement of religion. This fortunately, is usually a legal question based more or less on judicial interpretation of social facts, and here the court concluded that a reasonable person would conclude the sticker conveyed and endorsement of a certain form of religion, and that such persons were favored members of the political community so as to require a sticker to assuage their more privileged concerns.
The court did examine the social and historical background of the evolution creation conflicts routinely occurring in public schools. It also focused on the wording of the sticker itself “Evolution is a theory, not a fact.” This language taken directly from many religious creationist claims is essentially a “code phrase” routinely used by creationists opposed to evolution. Its use displays either a religious intent or a fundamental ignorance of science and the history surrounding the debate. The court did not find the school board members to be ignorant and noted the historically loaded connotation of the “evolution is a theory not a fact” phrase. As the court observed, The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief and this is exactly what the School Board appears to have done.
Although the governmental action is invalidated if any Lemon prong is violated, the court went on to hold that the school board had effectively entangled itself with religion by taking a position that agrees with and endorses fundamentalists and creationists but not necessarily all other religious beliefs.
See more discussion at the Panda's Thumb.