As we await the Appeals Court's ruling in the
Selman v. Cobb County case (
stickers on textbooks), I thought I would point people to Francis Beckwith's very interesting paper entitled "The Court of Disbelief: The Constitution's Article VI Religious Test Prohibition and the Judiciary's Religious Motive Analysis," which is available
here. He argues that the manner in which the Establishment Clause of the First Amendment has been interpreted by US courts violates another provision in the Constitution that prohibits religious tests. I might argue the details a little differently, but I agree with him that looking at "motives" of government officials in Establishment Clause cases has become horribly warped.
Beginning on page 16 he discusses the district court's opinion in
Selman, in which the judge decided that the school board's actions did have a legitimate secular purpose, in part because the sticker "fosters critical thinking by encouraging students to learn about evolution to make their own assessment regarding its merit.” However, he concluded that the sticker violated the "primary effects" prong of the Lemon test, because a "reasonable observer" would interpret the sticker to convey a message of endorsement of religion, because it "sends a message to those who oppose evolution for religious reasons that they are favored members of the political community,
while the Sticker sends a message to those who believe in evolution that they are political outsiders. . . ." This is, in part, because the "reasonable observer" would "be aware" that religious people prefer calling evolution a theory, not a fact, which is part of the text of the sticker.
This is part of what Beckwith says:
Second, 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? Consequently, 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.
Third, what makes this opinion particularly strange is not that Judge Cooper is relying on the actual motives of religious citizens to dismiss the textbook disclaimer as unconstitutional, though he does indeed do that. Rather, the strangeness of this opinion lies in the judge’s relying on what a third-party may believe about the motives of the law’s citizen supporters based on the history and common understanding of the debate over evolution. Here, the First Amendment has been completely turned on its head. Rather than serving as a protector of believing-citizens and a bulwark against religious prejudice, the coercive power of the First Amendment’s Establishment Clause, according to Judge Cooper, is triggered for the purpose of limiting the political actions of religious citizens whenever secular citizens’ believe that the political views of their religious neighbors are the result of a type of belief, a religious motive, even if the law under scrutiny has a bona fide secular purpose and is supported by secular reasons. So, in this case, the government rewards secular citizens for their beliefs about religious citizens and punishes religious citizens because of what secular citizens perceive the religious citizens believe. But if government cannot touch beliefs, as the current understanding of the First Amendment seems to indicate (supra I), then this opinion is inconsistent with the Constitution. For its major premise relies entirely on the beliefs of citizens including some of these citizens’ beliefs about other citizens’ beliefs and their religious content.
Does this remind you of
anything? Or anything
else?
Another post about Selman, with a link to the full text of the district court's opinion, is
here.
The oral arguments before the Appeals Court in this case indicate we may see a reversal. Read about it
here.
