13 January 2005

A Faith-Based Initiative

… that clearly violates the constitution, according to the Hon. Clarence Cooper (Northern District of Georgia). In an opinion released earlier today (PDF image file, 2.5mb), Judge Cooper essentially held that Cobb County, Georgia may not constitutionally require schools to put a sticker proclaiming that evolution is only a theory and not a fact in science textbooks.

Since this is an image file, I'll convert some of the more salient language to searchable text later in this posting. The key thing to remember is that this opinion is the judge's equivalent of a jury finding after a full trial. Ordinarily, opinions on this kind of issue are at preliminary stages of cases. The distinction is crucially important in this matter, because on appeal a court must give pretty extreme deference to the judge's findings of fact. In order to overturn the findings of fact, an appellate court must find that they are wrong under a "clear and convincing" standard based only on the record in the trial (not, as Inscrutable Design advocates will no doubt attempt, on further "expert testimony" brought in specifically to "refute" the judge's findings). This is therefore almost a unique instance in the law of the Establishment Clause: virtually every other case was decided based upon findings of fact not entitled to this level of deference. That, in turn, is going to mean some pretty fascinating gyrations in attempts to overturn or otherwise modify the judgment.

All of that said, Judge Cooper does an exemplary job setting the stage for the matter, telling us what the case is not about and then its actual limits.

Due to the various challenges that arise in this area, the Court believes it prudent to state from the outset what this case is not about. First, the Court is not resolving in this case whether science and religion are mutually exclusive, and the Court takes no position on the origin of the human species. Second, the issue before the Court is not whether it is constitutionally permissible for public school teachers to teach intelligent design, the theory that only an intelligent or supernatural cause could be responsible for life, living things, and the complexity of the universe. Third, this case does not resolve the ongoing debate regarding whether evolution is a fact or theory[,] or whether evolution should be taught as fact or theory.

To be clear, this opinion resolves only a legal dispute. Specifically, the narrow issue raised by this facial challenge is whether the sticker placed in certain Cobb County School District science textbooks violates the Establishment Clause of the First Amendment of the United States Constitution and/or Article I, Section II, Paragraph VII of the Constitution of the State of Georgia.

Slip op. at 2 (italics in original). The court next descended into the quagmire of "sham" purposes and the Lemon test. Leaving aside the psychological reality here—that every single one of these purported "justifications" is merely a post hoc rationalization for accommodation of religion, which is itself not necessarily inconsistent with the Establishment Clause but does/should more seriously question it, as the Supreme Court recognized in Santa Fe—the court was essentially constrained by Eleventh Circuit precedent to find that the sticker and accompanying policy had an "adequate" secular basis to pass the extremely deferential standard of review. In other words, one prong of the three-part Lemon test down; one or two to go.

At this point, I could go off onto an extremely theoretical tangent about the justification for the Eleventh Circuit's melding of the two remaining prongs of Lemon into a single-prong "effects" text (see slip op. at 19–21). But I won't, because that would deflect attention from the most critical part of Judge Cooper's opinion: the analysis of the evidence before him on whether, regardless of the logical path used to reach it, the sticker results in advancing religion in a manner inconsistent with the Establishment Clause. Note that this is not the same thing as accommodating religion, such as establishing a school holiday schedule based around Christmas to accommodate the family schedules of the majority of its students (so long, that is, as students from other religions receive at least equivalent consideration in terms of "excused absences" for their own "high holy days").

The critical remaining language occurs near the beginning of the section on the resulting impression left by the sticker. This is good writing practice, because it places the following discussion in a pretty complete context.

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to contain a message of endorsement of religion. That is, the Sticker 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 particularly so in a case such as this one involving impressionable public school students who are likely to view the Sticker as a union of church and state. Given that courts should be "particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools," the Court is of the opinion that the Sticker must be declared unconstitutional.

Slip op. at 31–32 (internal citations omitted). Only a page or so later, Judge Cooper admirably summarizes the evidence for the religiously charged political environment of the school board's decision. This summary is admirable for its relative even-handedness, despite the accusations that will later come that it implies wrongfulness (which, although true, are themselves wrongful… but there's plenty of reflexiveness to go around in Establishment Clause cases!).

[T]he informed, reasonable observer would know that a significant number of Cobb County citizens had voiced opposition to the teaching of evolution for religious reasons. The informed, reasonable observer would also know that despite this opposition, the Cobb County School District was in the process of revising its policy and regulation[s] regarding theories of origin to reflect that evolution would be taught in Cobb County schools. Further, the informed, reasonable observer would be aware that citizens and parents largely motivated by religion put pressure on the School Board to implement certain measures that would nevertheless dilute the teaching of evolution, including placing a disclaimer in the front of certain textbooks that distinguished evolution as a theory, not a fact. Finally, the informed, reasonable observer would be aware that the language of the Sticker essentially mirrors the viewpoint of these religiously-motivated [sic] citizens.

Slip op. at 33. The real knife in the back, though, comes a few pages later, when Judge Cooper notes that "the Sticker targets only evolution to be approached with an open mind, carefully studied, and critically considered without explaining why it is the only theory being isolated as such." Slip op. at 36 (emphasis added). Judge Cooper doesn't neglect the dishonest misuse of the technical term "theory" in a context implying that a nontechnical meaning should be applied. Slip op. at 38–39. OK, he doesn't go so far as to say that the intentional "meaning slippage" is dishonest; he does emphasize, though, that the modifier that would have made clear that we were talking about a technical meaning—"scientific"—was omitted with malice aforethought by somebody, making the sticker an inappropriate statement.

Overall, Judge Cooper has managed to strike a nice balance between "blind justice" that would ignore context and an opinion subject to excoriation as being actively hostile to deeply held beliefs. "[T]he Sticker here disavows the endorsement of evolution, a scientific theory, and contains an implicit religious message advanced by Christian fundamentalists and creationists, which is discernable after one considers the historical context of the statement that evolution is a theory and not a fact." Slip op. at 41. From a rhetorical perspective, Judge Cooper has successfully managed to ground his opinion in reality—the real motivations, as virtually mandated by Santa Fe—without disrespecting the beliefs expressed by persons with constitutionally improper motives.