[4.4.] Freedom of Religion.

 

In the words of Thomas Jefferson, the first amendment to the Constitution of the United States of America builds “a wall of separation between church and State” (his “Reply to the Danbury Baptist Association,” 272). In part, that amendment reads:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …

 

There are two religious freedoms guaranteed in this amendment:

·         freedom from government establishment of religion [the “establishment clause”]

·         freedom from government prohibitions of exercise of religion [the “free exercise clause”]

 

We’ll look at each of these freedoms in turn.

 

[4.4.1.] Locke’s Letter Concerning Toleration (1685).

 

John Locke[1]

·         English, 1632-1704

·         studied at Oxford, in both philosophy and medicine

·         founding member of the tradition of British empiricism, according to which (among other things) experience, rather than reason, is the (or the most important) source of knowledge (another British empiricist is David Hume (1711-1776), whom we studied earlier as a precursor to legal positivism; he maintained that there is an insuperable gap between “is” and “ought”).

·         originator of the idea that each human being is born as a blank slate (tabula rasa) with no innate knowledge or ideas.

·         Locke’s best known philosophical works:

·         An Essay Concerning Human Understanding (1690, 4vv.), a classic work of epistemology in the empiricist tradition

·         Two Treatises of Government (1680-90), in which he argues against a divine right theory of political power and in support of the view that a ruler is justified in holding political power only because he has the consent of the governed

·         A founder of liberalism in the broad sense (the type of liberalism the opposite of which is communitarianism) and a proto-libertarian: “Laws provide, as much as is possible, that the goods and health of subjects be not injured by the fraud or violence of others; they do not guard them from the negligence or ill-husbandry of the possessors themselves.” (269) However, he was merely a proto-libertarian and not a full-blown libertarian like John Hospers; e.g., he cites with approval laws that prohibit people from “lustfully pollut[ing] themselves in promiscuous uncleanness” (271).

 

Locke argues that governments ought not to impose a religion on their citizens. He asserts all of the following:

·         The government has no more right to force a man to care for his soul than it does to force him to care for his physical health, or for his finances.

·         Even if it were justified in forcing a man to care for his health or finances, it wouldn’t be justified in forcing him to do so in some one specific manner (e.g., by taking only medicines manufactured in a specific place, or by going into some specific occupation). So even if government were justified in forcing man to practice religion, it wouldn’t be justified in forcing him to practice one specific religion.

 

A critic of Locke might respond that there are multiple ways of caring for one’s health or finances, but only one true religion.

 

·         Even it this is so, a “prince” (a head of state) is no more qualified to judge which religion is the true one than anyone else. If heads of state were so qualified, then different heads of state wouldn’t practice different religions!

·         Even if princes were more qualified than ordinary men in this regard, there is still a reason why they should not impose their will on their citizens: if they turn out to have misled someone by imposing the wrong religion on him, he will have no means of redress from the prince. Regarding “the life to come,” if someone “take[s] a wrong course, if in that respect I am once undone, it is not in the magistrate’s power to repair my loss, to ease my suffering, or to restore me in any measure, much less entirely, to a good estate.” (270-71)

 

 

[4.4.2.] Creationism and Establishment: Edwards v. Aguillard.

 

The establishment clause of the first amendment has been interpreted so as to prohibit public schools from teaching religious doctrine (private schools can, of course, choose to teach religious doctrine).

 

But this has not preempted all controversies involving religious, or quasi-religious, or (what some view as) anti-religious content in public school curricula, particularly in biology.

 

In the 20^th century, a number of court cases have challenged the teaching of evolutionary theory, and other cases have challenged religious (or seemingly religious) “alternatives” to evolutionary theory.

 

Louisiana’s so-called Creationism Act (it’s full name: “the Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act”) required public schools to teach creation science whenever they taught evolution. The law allowed schools to ignore the subjects of human origins and speciation altogether, but they could not teach evolutionary theory without also teaching creation science as an alternative.

 

A group of Louisiana parents, teachers, and religious leaders challenged this law in court, arguing that it violated the first amendment’s Establishment Clause. The state of Louisiana argued that the law promoted a significant secular interest of the state, viz. academic freedom.

 

The district court agreed with the plaintiffs and found that the Creationism Act violated the Establishment Clause. It also held that teaching creation science amounted to teaching content developed specifically to serve religious interests.

 

The state of Louisiana appealed, but the appeals court agreed with the lower court ruling. They appealed once again, and the Supreme Court agreed to hear the case.

 

It was heard before the Supreme Court in Edwards v. Aguillard (1987) [see the opinion by William Brennan, reading 5-24, pp.281-2.] In a 7-2 decision, the Court found that the Creationism Act was in violation of the first amendment’s establishment clause, because its “primary purpose” was to promote a religious doctrine.

 

In finding the law unconstitutional, the Court relied on what is called the Lemon Test. This stems from an earlier decision (in the case of Lemon v. Kurtzman, 1971). According to this test, a law violates the Establishment Clause if it does not meet all three of the following standards:

 

1.      “the legislature must have adopted the law with a secular purpose.” [Since 1984, courts have sometimes considered government endorsement or disapproval of religion to be a violation of this “prong” of the Lemon test.]

2.      “the statute's principal or primary effect must be one that neither advances nor inhibits religion.”

3.      “the statute must not result in an excessive entanglement of government with religion.”

 

The Court ruled that the Creationism Act violated the first standard of the Lemon Test: the Louisiana legislature had a non-secular (i.e., religious) purpose in mind when crafting the Creationism Act.

 

Although the state had claimed that the purpose of the law was a secular one (viz., to advance academic freedom), the Court expressed skepticism about this, saying that the law did not give teachers any more academic freedom than they already had, and in fact limited what they could do in the classroom.

 

 

[4.4.3.] Theory vs. Fact: The Cobb County Controversy.

 

·         In 2002, the Cobb County Georgia school board placed stickers placed on high school biology textbooks. They read: “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 an open mind, studied carefully and critically considered.”

·         The school board says it placed the stickers after many parents (they say more than 2000!) complained that the textbook presented evolution as though it were a fact and failed to mention rival theories.

·         The school board was sued by parents and the ACLU (American Civil Liberties Union).

·         In January 2005, a federal judge ruled in Selman v. Cobb County School District  that the stickers are a violation of the Establishment Clause and ordered the Cobb County School Board to remove them:

 

In sum, the Sticker in dispute violates the effects prong of the Lemon test and justice O'Connor's endorsement test, which the Court has incorporated into its Lemon analysis. Adopted by the school board, funded by the money of taxpayers, and inserted by school personnel, the Sticker conveys an impermissible message of endorsement and tells some citizens that they are political outsiders while telling others that they are political insiders. Regardless of whether teachers comply with the Cobb County School District's regulation on theories of origin and regardless of the discussions that actually take place in the Cobb County science classrooms, the Sticker has already sent a message that the School Board agrees with the beliefs of Christian fundamentalists and creationists. The School Board has effectively improperly entangled itself with religion by appearing to take a position. Therefore, the Sticker must be removed from all of the textbooks into which it has been placed.[2]

 

There are at least two senses of the word “theory”:

 

theory_S (df): “a well-substantiated explanation of some aspect of the natural world that can incorporate facts, laws, inferences, and tested hypotheses.”[3]

 

theory_G (df.): “an assumption or guess based on limited information or knowledge.” (American Heritage Dictionary, 2^nd College ed.)

 

Darwinism is a theory_S ... and so is the claim that the earth revolves around the sun rather than vice versa.

 

That Darwinism is a theory_S does not mean that it lacks strong evidence or confirmation—i.e., it does not mean that it is a theory_G. In fact, Darwinism is not a theory_G—it is extremely well supported by the data and theorizing of thousands upon thousands of different scientists working in a number of different disciplines. A theory_S that is true accurately represents the facts; and so something can be both a theory_S and factual.

 

To say that “Evolution is a theory, not fact” suggests that it does lack strong evidence, that it is a theory_G. But that is not the case—evolutionary theory is supported by a tremendous amount of evidence.

 

Creationism and Intelligent Design Theory, on the other hand, are not theories_S; they are not well-substantiated, and do not incorporate facts, laws, inferences, and tested hypotheses in the same way as an actual theory_S.

 

 

[4.4.4.] Intelligent Design and Establishment: the Dover Ruling.

 

The decision in Edwards v. Aguillard did not settle the question whether “alternatives” to evolution seemingly motivated by religious considerations can be taught in public schools.

 

Recent controversies have not involved creationism, but rather intelligent design theory, according to which certain physical structures are too complex to have resulted from evolution alone and must be the result of an intelligent designer. According to the strict letter of IDT, this intelligent designer need not be divine; but some of the proponents of this view clearly have religious motivations, and all of them are accused of having such motivations by their critics.

 

In October 2004, the Dover (PA) Area School Board of Directors voted to include the following statement in its science curriculum: “Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught.”

 

In November 2004, the Dover Area School District announced in a press release that, beginning in January 2005, teachers of ninth-grade biology at Dover High School would be required to read the following statement to their classes:

 

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

 

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

 

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

 

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

 

In December 2004, several parents filed suit against the Dover Area School District, claiming an unconstitutional violation of the Establishment Clause.

 

In his decision in the case of Kitzmiller et al. vs. Dover Area School District et al., Judge John E. Jones III decided in favor of the plaintiffs and issued a decision scathingly critical of the School District officials. His decision contains the following statements:

 

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

 

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.

 

With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.[4]

 

 

 

Stopping point for Wednesday April 4. For next time, read pp.282-87, on free exercise of religion.