Demagogue

Regular readers will know how irritating I find the anti-intellectual, anti-rational strain of faith-based politics, particularly when it comes to the subject of evolution. I think, in fact, that the Cobb County disclaimer sticker in biology textbooks (telling students that evolution is "a theory, not a fact") set me off on a ranting post in the old Demagogue.

But I also recall saying that I doubted the sticker was an Establishment Clause violation and that I didn't think the lawsuit against it should succeed. As you've probably heard, it did succeed with the trial judge. I've read the opinion (pdf), and I'm not convinced.

Since I'm disagreeing with the judge's decision to order the county to remove the stickers, I should start by noting what a thoughtful and well-written opinion he produced (shout-out to the judge's law clerks, too). I'm afraid that his very careful attempt at the outset to explain what he was not deciding will count for very little in the storm of press coverage and flood of hate mail he's about to receive. He pointed out that he wasn't saying whether or not evolution should be taught as a theory or a fact, whether schools could teach intelligent design, or which explanation of the origin of the human species was correct.

The nuances will be lost on angry fundamentalists, I'm sure, and I don't exactly blame the non-lawyers among them (I will blame radical clerics who inflame their followers by misrepresenting what the judge said, but not the followers themselves). To a lay person hearing about the case, it will sound as if the judge is saying that all public schools must tell students that evolution is the truth and are forbidden from even suggesting that it is a theory and might be incorrect. That's not what the judge said, but that's how it will sound, and I'd get pretty upset about that if I were a fundamentalist and had kids in public school.

But in any event, no matter how thoughtful the opinion, I think it's wrong. I also think the 11th Circuit will reverse (which isn't saying the same thing, as I think the 11th Circuit isn't exactly the brightest star in our judicial constellation).

I start as someone who is very skeptical of judges' overturning the decisions of political bodies like legislatures or the Cobb County School Board. Conservatives get upset when judges strike down anti-abortion laws or require marriage equality--and I think they have a point. I also think that partisan conservatives who support Bush's judicial nominees have a glass-houses problem, as conservative judges have been striking down civil rights, environmental, and other liberal legislation at an alarming rate, and the Rehnquist Court has invalidated Acts of Congress at a rate unprecedented in the history of the Supreme Court. I think the stickers are stupid and a cave-in to the forces of obscurantism, but that doesn't mean a judge should intercede.

But there are times when there really are Establishment Clause violations that judges should remedy. This isn't one of them. The judge heard testimony from all the School Board members as well as from parents and others who had been involved throughout the controversy that led to the stickers' adoption, and he concluded that the School Board was not trying to advance a religious explanation of the origin of species. And from the judge's recounting of the testimony, it seemed reasonable to conclude that the School Board was not acting from a desire to promote a particular religion, or even religion in general. To me, that should have just about ended the case, but it's not the judge's fault that it didn't--he has to follow the Supreme Court, after all, and they've still not managed to do away with the "three-pronged" test that all nine justices dislike, so the law is still officially that the government's purpose is only one of three elements that must be considered.

In the end, the key to the judge's decision was that in the context of the controversy that erupted after Cobb County bought these textbooks, a "reasonable observer" would view the stickers as implying that the government was siding with the biblical literalists. Not that it was siding with them; but that it looked like it was. I wouldn't want to say that appearances never count, but I think this one was a stretch. This isn't like cases in which the government makes schools teach creationism alongside evolution. The stickers don't mention any alternative theory to evolution. Yes, we all know what the leading alternative is, but it's hard to say the government is siding with the fundamentalists when the textbook teaches only evolution and the teachers teach only evolution. When you consider the sticker in that context, it seems more like a sop to the feelings of the fundamentalists (who weren't satisfied with it, by the way, pretty much for that reason) than an endorsement of their beliefs.

To sum up an overlong post: if I were on the School Board, I'd have voted against this sticker. But if I were a judge, I wouldn't stop the School Board from putting the sticker in the textbooks. And before liberals celebrate this decision too much, they should think about how often the courts meddle with liberal laws and consider whether we might all be better off if the courts were a bit more cautious about throwing their weight around.