Monday, August 28, 2006


Blue Bayou

Supreme CourtThere is a relatively new "theme" blog out there that I learned of through Pat Hayes' excellent blog, Red State Rabble, that may be of interest to those involved in the defense of evolutionary theory from creationist claptrap.
The new site is called Jurisdynamics, which is described as the "interplay between legal responses to exogenous change and the law's endogenous adaptive capacity." Translated from [cough] Academese, that means roughly: "how the law can change to meet the changes in society at large." I'm sure I'm being at least somewhat unfair in that description but I think they'll survive.

Anyway, one interesting post brought to light an otherwise obscure decision of the Supreme Court. The case, Tangipahoa Parish Board of Education v. Freiler, has a somewhat tangled history.

The school board in the euphonious Tangipahoa Parish, Louisiana created a "disclaimer" to be read in class as follows:

Whenever, in classes of elementary or high school, the scientific theory of evolution is to be presented, whether from textbook, workbook, pamphlet, other written material, or oral presentation the following statement shall be quoted immediately before the unit of study begins as a disclaimer from endorsement of such theory.

It is hereby recognized by the Tangipahoa Parish Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.

It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.
First, a three-judge panel, in a fairly straightforward and seemingly well-reasoned decision found the disclaimer to violate the Establishment Clause of the Constitution. Then, on a motion for reargument based on, among other grounds, that the three-judge panel had misquoted the disclaimer, the full Circuit Court refused to permit either a panel rehearing (reargument before the original panel) or a hearing en banc before the entire Circuit Court. There was, however, what might be fairly characterized as a bitter dissent that was joined by seven judges. The case then went to the Supreme Court on a petition for a writ of certiorari. Such decisions on whether the Court should hear the case are often routine and it is fairly unusual to have a dissent filed once the majority denies the petition. But in this case, Justice Scalia dissented and was joined by the late Justice Rehnquist and Justice Thomas.

As Jim Chen, an Associate Dean and the James L. Krusemark Professor of Law at the University of Minnesota Law School, points out, Justice Scalia:

. . . took extreme pains to dissent from this decision. He derided the appeals court’s reasoning -- and, by extension, that of his colleagues who voted to deny further review -- as "quite simply absurd." He found no reasonable prospect of treating the school board’s "reference to . . . a reality of religious literature" as an unconstitutional "establishment of religion." After expressing seeming disapproval of Epperson and Edwards, Justice Scalia berated his colleagues for advancing further "the much beloved secular legend of the Monkey Trial."
Professor Chen goes on to say:

Seen in the light of creationism’s slow but persistent growth into what Stephen Jay Gould has called a potentially "powerful champion[] (sic) of darkness," Justice Scalia’s gratuitous swipe at evolutionary biology in Tangipahoa Parish may be the most scientifically irresponsible passage in United States Reports. For sheer stupidity and public recklessness, Justice Scalia’s sarcastic reference to legal efforts to keep evolution in public school classrooms as a "secular legend" may actually eclipse Justice Oliver Wendell Holmes’s eugenicist epithet in Buck v. Bell, 274 U.S. 200, 207 (1927), "Three generations of imbeciles are enough."
I'm not as sure as the good Professor that Justice Scalia has plumbed the depths of the stupidity that the Court can bring to bear on evolutionary theory. Certainly the Circuit Court can match Justice Scalia in ignorance, if not in sarcasm. The dissent in the Circuit Court had this rather stunning howler:

Contrary to the panel's interpretation, the disclaimer expressly encourages examination of "each alternative" concept for life's origin, including evolution, the Biblical version, and others that are not identified. Moreover, the panel erroneously assumes that all alternatives to evolution are religious in nature, ignoring the existence of non-religious theories, such as the "Big Bang" and panspermia (reproductive bodies of living organisms exist throughout the universe and develop wherever the environment is favorable).
I, for one, am rather surprised to learn that the Big Bang is an alternative concept to evolution of life's origin. Here I thought that evolution was the scientific study of the history and development of life after its origin in some simple form and that the Big Bang had to do with the origin of matter and the large-scale structure of the universe as a whole. Needless to say, panspermia was nothing more than a science-fictiony concept flirted with by some somewhat eccentric scientists, including Francis Crick and Fred Hoyle, back in the 1980s, that has gone nowhere as science but remains among the near-infinite array of possibilities that cannot be ruled out by science.

While the case itself and the resultant decisions are interesting on their own and I recommend that anyone with the time should read them, nothing much lasting came out of it in the way of precedent. Furthermore, the disclaimer was certainly borderline in its violation, if any, of the Constitution.

What is of real importance is the continuing antipathy of Justice Scalia to the Lemon test and the Establishment Clause in general. With the recent changes in the Court, Lemon may be on its way out and the alternative might be much more friendly to creationism being taught at public expense. If nothing else, the dissent in the Circuit court shows that the religious right may have already made great headway in its attempts to install a judiciary favorable to its agenda and antagonistic to the traditional reading of the separation of church and state.

Dear Thoughts in a Haystack:

Thanks for responding so thoughtfully to Tangipahoa. I'll be spinning this issue in an extended series at Jurisdynamics. I invite you to see what I wrote initially in the Harvard Environmental Law Review article that inspired all of this. Then come see the opening post in my new series, Genesis for the Rest of Us.

Best wishes,
Jim Chen
The Jurisdynamics Network
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