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In March 2002, the school board of Cobb County, Ga., ordered that a cautionary sticker be placed on science textbooks covering the topic of evolution. The sticker states: “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.” A group of parents whose children attend Cobb County schools went to court to challenge the constitutionality of this warning. On Jan. 13, U.S. District Judge Clarence Cooper agreed that the sticker violates the establishment clause of the First Amendment. That’s too bad. The issues raised by this case go beyond the value of one little label. While the Cobb County sticker has its problems, what is far more troubling is how the court’s analysis unfairly limits the rights of religious citizens to participate in the political process. ENDORSING RELIGION? Judge Cooper begins his opinion with some important clarifications. He points out that the court’s opinion deals with a narrow question — the constitutionality of the sticker’s content — and does not address the many other issues that animate the differing factions in this debate. For Cooper, this case is not about the relationship between science and religion, the constitutionality of teaching intelligent design, or even the proper classification of evolution as a theory or a fact. Judge Cooper then applies to the narrow question the three-prong test laid out by the U.S. Supreme Court in Lemon v. Kurtzman (1971): “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion � finally, the statute must not foster ‘an excessive government entanglement with religion.’” A statute or policy that fails any one of these prongs violates the establishment clause. The Cobb County sticker passes the first prong because it has two secular purposes, writes the judge. First, the sticker “fosters critical thinking by encouraging students to learn about evolution to make their own assessment regarding its merit.” Second, the sticker is an attempt to present evolution “in a manner that is not unnecessarily hostile” in order to “reduce offense to students and parents whose beliefs may conflict with the teaching of evolution.” To determine whether the sticker passes Lemon‘s second prong — its “principal or primary effect must be one that neither advances nor inhibits religion” — Cooper conscripts the rationale behind the Supreme Court’s endorsement test. If a statute or policy creates a perception that the state is either endorsing or disfavoring a religion, the action is unconstitutional. As the court noted in Lynch v. Donnelly (1984), the concern here is whether the disputed law or policy sends “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” In Wallace v. Jaffree (1985), Justice Sandra Day O’Connor, concurring in the opinion, argues that a statute violates the establishment clause if an objective observer fully informed of all the facts “would perceive it as a state endorsement” of religion. Judge Cooper concludes that the sticker fails this test, though this judgment is not based on the “views or reactions held by the plaintiffs or the numerous citizens and organizations who wrote to the board.” Rather, it is based on “the view of a disinterested, reasonable observer.” Such a person, fully conversant with the history of opposition to Darwin’s idea, would recognize that the assertion “evolution is a theory, not a fact” has its origin in anti-evolution literature published by creationists. Thus, an informed, reasonable observer would view the sticker as endorsing a particular view of evolution espoused by the religiously motivated citizens and public officials of Cobb County. This, according to the court, tells citizens who are staunch supporters of evolution that they are political outsiders. THE REAL POLITICAL OUTSIDERS This analysis fails for several reasons. First, it seems inconsistent with the court’s analysis under Lemon‘s first prong, which affirms that one of the sticker’s secular purposes is to reduce offense to religious citizens. In other words, religious citizens stated, through their government representatives, a goal of attempting to reduce hostility to certain religious beliefs, and the court acknowledges that such a goal constitutes a secular purpose that passes Lemon‘s first prong. Yet somehow the policy does not survive under Lemon‘s second prong for precisely the same reason that the court has just approved it under the first prong. This reasoning presents a Catch-22 that makes it nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs. For who but the citizens who take religious offense would be the most vocal critics of such policies and the most visible proponents of ways to mitigate them? It is difficult to believe that the judge is suggesting that citizens who desire to remedy a religious offense in their public school curricula cannot themselves lobby their government. Yet if political representatives respond to their concerns (just as elected officials might respond to citizens objecting to school policies for non-religious reasons or even to citizens calling for the teaching of evolution), such a response would, under Judge Cooper’s reasoning, raise establishment clause concerns. The result is to impose a special burden on the political activity of religious citizens, a burden not placed on secular political participation. It seems more likely that an informed, reasonable observer viewing this entire situation might conclude that the true political outsiders are the religious citizens of Cobb County — not their detractors who want to remove the sticker. MORE THAN MATERIALISM Second, the judge misses the real reason why citizens would want such a sticker on their children’s science textbooks. Although many of these citizens would describe themselves as “creationists” in the sense that they believe a literal interpretation of the first chapters of Genesis is a true description of the origin of the world, it would be a mistake to conclude that promoting creationism over evolution is their real reason, or the reason of other citizens, for supporting the sticker. Their real purpose is quite modest (and entirely constitutional): They want public schools to teach the children of their community that it is rationally permissible to entertain doubts that materialism is the whole story of the order and nature of things. Materialism, in this context, is the view that all that exists is matter and that the universe and its natural design and order is the exclusive result of undirected material processes, including scientific laws and chance. Unfortunately, because science is taught as exclusively materialistic and because it is presented as the paradigm of knowledge and rationality, the conclusion that some students draw from their classroom lessons is that nonmaterial entities in which they may believe — everything from God to moral laws, souls and human free agency — are not within the scope of knowledge or rationality. So it is not biological evolution per se that troubles these citizens (though it no doubt also bothers many of them). Rather, what troubles them is a materialist understanding of what counts as knowledge, a view that implicitly excludes their theological views from receiving serious respect in the institutions for which their tax dollars are confiscated and their children are required to attend if they do not bear the expense of private education. As an (eloquent) example of this materialist understanding that many citizens find objectionable, consider this passage from the Wright Center for Science Education at Tufts University: “At the beginning of a whole new millennium, modern science is now helping us construct a truly big picture. We are coming to appreciate how all objects — from quark to quasar, from microbe to mind — are interrelated. We are attempting to decipher the scenario of cosmic evolution: a grand synthesis of all the many varied changes in the assembly and composition of radiation, matter and life throughout the history of the Universe. � Now emerging is a unified worldview of the cosmos, including ourselves as sentient beings, based upon the time-honored concept of change. � From galaxies to snowflakes, from stars and planets to life itself, we are beginning to identify an underlying pattern penetrating the fabric of all the natural sciences — a sweepingly encompassing view of the formation, structure and function of all objects in our multitudinous Universe.” Of course, not everyone agrees. This narrative of materialism can be reasonably challenged in a variety of sophisticated nonreligious ways, as many philosophers of note have done over the past decades. But if this narrative is indicative of the way in which science is presented in public schools despite the intellectual challenges to materialism, the Cobb County policy is remarkably modest. It merely requires some textbooks to include a statement that encourages students to examine critically the only viewpoint that will be presented without rebuttal, reply or counterargument for the remainder of the course. NOT ‘INHERIT THE WIND’ Third, although “evolution is a theory, not a fact” has its genesis in the literature published by creationists, it is a statement with which people may agree while rejecting creationism (depending upon how the terms “theory” and “fact” are defined). Ironically, Judge Cooper seems to agree with this observation in his application of the first prong of the Lemon test, when he concludes that the sticker has two secular purposes. Apparently, he is conceding that the second-prong analysis depends entirely on the prejudices and preconceptions that some citizens may have about other citizens who harbor doubts about evolution as the grand materialist story of everything. Yes, Judge Cooper is correct that creationists reject this sort of evolution, but so do theistic evolutionists, biological Darwinists who embrace cosmological design and a wide variety of scholars and ordinary citizens who reject materialism as the only worldview that counts as rational or “scientific.” Rather than acknowledging this diversity, Cooper, despite his protestations to the contrary, incorporates into the judgment of his informed, reasonable observer the one-dimensional “Inherit the Wind” caricatures harbored by some of Cobb County’s uninformed and unreasonable citizens. Nevertheless, the sticker is not without its problems. First, calling evolution a theory “regarding the origin of living things” may be misleading if one is talking about biological evolution, which concerns how living things that already exist change over time. Second, the claim that evolution is “not a fact” is inconsistent with the school board’s call for critical thinking. The board cannot say that evolution is not a fact and at the same time suggest to students that they should have an open mind on the subject, since having an open mind requires that they critically consider the possibility that evolution is a fact. The big picture is this: While Cobb County’s sticker may have its problems, the court’s decision ordering the removal of the sticker is even more problematic. The sticker warns that the issue of evolution needs to be “studied carefully” with an open mind. That’s good advice — for judges as well as students. Francis J. Beckwith is associate director of the J.M. Dawson Institute of Church-State Studies and associate professor of church-state studies at Baylor University in Waco, Texas. He is the author of “Law, Darwinism and Public Education” and several articles on evolution and public education. This article was reprinted from Legal Times , a Recorder affiliate.

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