I’ve been thinking today about the ACLU’s favorite former liquor control board member (i.e., Judge Jones) and his decision in the Dover case. In my post today I want to focus on only one of Jones’ many errors – his reliance on the subjective motives of the Dover school board members in striking down the ID policy in Kitzmiller v. Dover Area School Dist. 400 F.Supp.2d 707, 748-762 (M.D.Pa. 2005). I will demonstrate that under very clear United States Supreme Court precedent, the subjective motives of a policy maker are simply irrelevant in determining whether the policy violates the Establishment Clause.
Let us begin at the beginning – the Lemon test. In Lemon v. Kurtzman, 403 U.S. 602 (1971) the Supreme Court established the following three-part test for determining whether a governmental policy violates the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, . . . finally, the statute must not foster ‘an excessive government entanglement with religion.’” Id. 402 at 612-613. Note that I am not in this post concerned with the so-called “endorsement” test mentioned by Judge Jones in his opinion. That test has never been adopted by the United States Supreme Court. The Lemon test is the law, not the endorsement test.
In later cases the court held that it is the policy itself that must be scrutinized under the Lemon test, not the subjective motives of the legislators who enacted the policy. This is true even if some of the legislators were indeed motivated by religious impulses. For example, in Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 249 (1990) the Court stated: “Even if some legislators were motivated by a conviction that religious speech in particular was valuable and worthy of protection, that alone would not invalidate the Act, because what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law.”
Here are a couple more Supreme Court cases stating it is not proper for a federal court to inquire into policy makers’ motives:
“it simply is not consonant with our scheme of government for a court to inquire into the motives of legislators. Bogan v. Scott-Harris, 523 U.S. 44, 55(1998)
“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” U. S. v. O’Brien, 391 U.S. 367, 383 (1968)
In a more recent case, the United States District Court judge in Utah Gospel Mission v. Salt Lake City Corp. 316 F.Supp.2d 1201 (D.Utah 2004) wrote:
In evaluating the government’s purpose, the court’s inquiry ‘should be deferential and limited’ where the government has articulated a reasonable secular purpose. Bauchman, 132 F.3d at 554 (internal citation and quotation marks omitted); see also Edwards v. Aguillard, 482 U.S. 578, 586, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (recognizing that courts are normally ‘deferential to a State’s articulation of a secular purpose’). Further, the secular purpose inquiry does not probe the personal motives of those involved in passing a statute or ordinance. Personal motives are immaterial because, as stated in Board of Education v. Mergens, ‘what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law.’ 496 U.S. 226, 249, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality) (emphasis in original). As Justice O’Connor explained in Wallace v. Jaffree, in evaluating the secular purpose of legislation, ‘a court has no license to psychoanalyze the legislators’ in order to ferret out improper subjective intent. 472 U.S. 38, 74, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring).
What does this mean in practice? It means the courts should not look beyond a science policy that is religiously neutral on its face to try to fathom the heart of hearts of the policy makers who enacted it. Consider the following educational policy for example:
“Students should know that many biological structures have an overwhelming appearance of having been designed for a purpose. Many scientists theorize that this appearance of design is an illusion and that the existence of all complex biological structures can be explained by the interaction of chance and mechanical necessity in deep time. Other scientists theorize that the appearance of design is not an illusion and that the best explanation for the appearance of design in biological structures is that they were in fact designed.”
How does this policy stack up under Lemon? Let’s examine it under each part of the test:
1. Does the policy have a secular purpose? Yes, the purpose of the policy is to encourage educators to teach students the undisputed fact that biological structures appear to have been designed and to further encourage educators to teach students that there are two competing explanations for the appearance of design.
2. Does the principal or primary effect of the policy advance or inhibit religion? No. On its face the policy has nothing to do with religion one way or another. To be sure, both the Darwinist and the ID components of the policy may have religious implications for some people, but those implications are not discussed, much less compelled, by the policy.
3. Does the policy foster an excessive government entanglement with religion? Again, no. On its face the policy has nothing to do with religion and therefore fosters no entanglement at all.
In summary, on its face the policy passes the Lemon test with flying colors. Only if one looks past the policy into its theological implications and/or the motives of its proponents do issues of religion arise. But as we saw earlier, this is precisely what the Supreme Court has enjoined the lower courts not to do.
Perhaps I can bring this point into relief by considering the origins issue from the other side. Imagine a school district that has never in the past taught anything at all regarding origins, either from a Darwinist or an ID perspective. The board of education has five members, all of whom are militant atheist Darwinists (maybe its in Berkeley). The following policy comes up for review and a vote: “Students should know how Darwinian theory explains that all biological structures came into being through the interaction of chance and mechanical necessity in deep time.”
At the hearing on the policy all five members of the school board say something to the effect of “I don’t really care whether the students know anything about the actual facts of biology. My sole purpose in supporting this policy is to undermine Christianity and support an atheistic worldview.” The policy passes.
Does the policy now violate the Establishment Clause because the subjective purpose of the school board members was to promote atheism?
When answering this question keep in mind that it does no good to say the policy supports an atheistic worldview without regard to the school board members’ intent. Take my word for it. The courts have unanimously rejected the “Darwinism promotes atheism and therefore violates the Establishment Clause” argument. In answering the question you must assume that if the policy were considered on its face only, there is not the slightest doubt in the world it would be upheld.
The answer to the question is that almost certainly any Establishment Clause challenge to the policy would be rejected out of hand.
The subjective religious motives of the school board members have no bearing on the outcome of the case if the policy under question supports the teaching of a Darwinian theory of origins. Why, then, should the subjective motives of school board members be any factor, much less a determining factor, in evaluating a policy promoting the teaching origins from an ID perspective? Why indeed.