Tuesday, September 27, 2005

Kitzmiller: You Be the Judge

The issue in Kitzmiller v. Dover is pretty simple at its core: does the Dover school board policy violate the Establishment Clause of the US Constitution?

The Dover policy requires that the following statement (which takes one minute) be read once at the beginning of the school year in high school biology classes, either by a teacher or school administrator:

"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

The following is the 1st Amendment to the US Constitution, which the ACLU claims is violated by the above policy (because of its religious nature). The Establishment Clause is in bold:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So does the Dover policy "establish religion," that is, does it set up an established state or national religion as in European countries? Does it even tend to do that? It seems to me that the policy is completely consistent with the purpose of the 1st Amendment, which is to keep government neutral towards religions, philosophies and worldviews (and between theistic and atheistic philosophies and religion and non-religion), and to maintain a fair, free market of ideas. One might even argue that the 1st Amendment requires the Dover policy to avoid an establishment of Darwinian philosophy.

Fun fact: several states had established state religions at the time the 1st Amendment was ratified. The 1st Amendment was not applied to the states until 1925, which is the same year as the Scopes trial. I think it should apply to the states, but I point this out because I think this fact adds to the absurdity of the ACLU's position.

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For Jonathan Witt's day two update, go here.

For the latest from the Washinton Post, go here and here.

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Post Note: To clarify, and to make the fun fact above even more fun, in 1925 the Supreme Court began the practice of applying the 1st Amendment and the Bill of Rights to state and local governments. The Establishment Clause was not actually applied until even later.


At September 28, 2005 12:33 PM, Blogger Ed Darrell said...

No state had an established religion after 1778. At the time of the writing of the Constitution, all 13 members of the Continental Congress had charters that guaranteed freedom of worship. At the time of the writing of the First Amendment, the trend to religious freedom continued.

Each state has a religious freedom requirement in its own charter like the First Amendment -- and that has been true since 1778. The First Amendment was not challenged as an application to the states until 1947. Prior to that, everyone assumed it as true that freedom of religion was guaranteed by the U.S. and state constitutions.

At September 29, 2005 9:58 AM, Blogger Lawrence Selden said...

Ed, I think you are wrong about states' established religion, and you seem to be confusing freedom of worship with establishment of religion. You can have an established religion and yet guarantee freedom of worship for those of different religions or denominations.

I probably should have clarified that the Bill of Rights was first applied to the states in 1925, the the actual application of the Establishment Clause came even later.

At October 25, 2005 1:31 PM, Anonymous Anonymous said...

Your observations are astute and on target. You would have made an effective expert witness in this case.


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