Trinity Law School Law Review - Fall 2015 by Trinity Law School

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ARTICLES CHARTER SCHOOLS VS. THE HERB TITUS DOCTRINE OF SEPARATION OF SCHOOL AND STATE Steve Barke ........................................................................................... 1 LOS ANGELES TURF CLUB AND ELANE PHOTOGRAPHY: JUSTIFICATION FOR ACTS OF CONSCIENCE IN VIOLATION OF THE CALIFORNIA UNRUH CIVIL RIGHTS ACT Sean Biel ...................................................................................................100 DARWIN’S POISONED TREE: ATHEISTIC ADVOCACY AND THE CONSTITUTIONALITY OF TEACHING EVOLUTION IN PUBLIC SCHOOLS Casey Luskin .............................................................................................130

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TRINITY LAW REVIEW is published by students at Trinity Law School. Trinity Law Review does not necessarily subscribe to the views espoused herein. Citations conform to A Uniform System of Citation, (20th ed. 2015), copyrights by the Columbia, Harvard, and University of Pennsylvania Law Review, and the Yale Law Journal. All works are chosen for publication on the basis of their scholarly presentation of the pertinent issues. Trinity Law Review invites submission of unsolicited manuscripts. If you would like to submit an article for publication consideration, please forward a copy of the article to the Law Review Editor at Trinity Law Review, 2200 North Grand Avenue, Santa Ana, California, 92705. Articles may also be submitted at: lawreview@tiu.edu ____________________________________________________________________________________________________________________________________________________________________________________

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FALL 2015 EDITORIAL BOARD MARYAM HEMMATI EDITOR-IN-CHIEF GLORIA MORENO-ARAGON EXECUTIVE EDITOR CAITLIN SCOTT LEAD ARTICLES EDITOR NARCIS BRASOV SENIOR RESEARCH EDITOR

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TRINITY LAW SCHOOL ADVISORY BOARD MR. HOWARD AHMANSON FIELDSTEAD & COMPANY

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TRINITY LAW SCHOOL FACULTY MYRON STEEVES DEAN

PROFESSORS ADELINE ALLEN

ANDREW DELOACH

MARK ALLEN

JEFFREY ERSKINE

STEVEN ADAMIAN

MARYAM FARVID

GISSELLE AMINI

ERIC FITZGERALD

HUNTER BAKER

LOYST FLETCHER

STEVE BARKE

LORA FRIEDMAN

CHRISTOPHER BAUER

ROBERT GRANT

JERAD BELTZ

R. CASEY HANNEGAN

MARINNA CALLAWAY

BRUCE HARBIN

DANA C. CLARK

CRAIG HAWKINS

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JAMES HIRSEN

PAIGE CUNNINGHAM

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TRINITY LAW SCHOOL FACULTY (CONT.) BRYAN KAZARIAN

CLAUDIA MOREHEAD

STEPHEN PAUL KENNEDY

ERIN MORIARTY

RYUL KIM

BRITTNEY MUUS

RONALD V. LARSON

MELANIE NICHOLS

PETER LEE

MARLYSS NICHOLSON

HON. DANIEL LOPEZ

WILLIAM OVERTOOM

TIMOTHY LICKNESS

MICHAEL PARKER

CASEY LUSKIN

MICHAEL PEFFER

ANDREW MCCARRON

MICHAEL PETERS

KENNETH M. MCDONALD

JESSE RANDOLPH

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TRINITY LAW SCHOOL FACULTY (CONT.) VALENTIN RADA

STEPHEN SHEPARD

JULIE RESNER

LISA STRIBLING

DONALD ROBERTS

BETHANY TAYLOR

TREVOR ROBERTS

RACHEL TOBERTY

R. NEIL RODGERS

LLOYD TOOKS

LISA RUNQUIST

VENUS TRUNNEL

NATASHIA SAUNDERS

WILLIAM WAGNER

BRADLEY SCHOENLEBEN

ANDREW WESTOVER

MICHAEL SCHUTT

THADDEUS WILLIAMS

KATELIN SCHWARTZ

GLEN WORTHINGTON

CHARTER SCHOOLS VS. THE HERB TITUS DOCTRINE OF SEPARATION OF SCHOOL AND STATE STEVE BARKE* [T]he teaching in today’s “public schools” not only contradicts the Biblical truths about creation, sin and life after death, it rests upon the false premise that Caesar has authority to “bear witness to truth.” Christ did not give to the state any jurisdiction over education.1—Herb Titus I. Introduction Noted Christian attorney and law professor Herb Titus2 reaches a categorical conclusion about the biblical role of government in education: “God has denied to the State any authority to teach.”3 His conclusion will be referred to in this article as the “Titus Doctrine.” While Titus himself would advocate that his conclusion should be a controlling legal doctrine of the land, as a practical matter, it functions only as a religious doctrine. *

Adjunct Professor of Law, Trinity Law School; J.D. 1992, Pepperdine University; M.A. 2001, Bethel Seminary; D.Min. 2014, Biola University; Ordained 2002, Conservative Congregational Christian Conference. 1 HERBERT W. TITUS, BIBLICAL PRINCIPLES OF LAW 21 (2006), http://www.jcmatthews. org/uploads/5/3/7/7/5377341/biblcial_principles_of_law.pdf. 2 Herbert W. Titus, About Herb W. Titus, http://www.herbtitus.com/. Titus states: [Herbert W. Titus] taught constitutional law, common law, and other subjects for nearly thirty years at five different American Bar Association-approved law schools. In 1993, he capped his academic career, having served since 1986 as the founding Dean of the College of Law and Government in Regent University, Virginia Beach, Virginia. Prior to his academic career, he served as a Trial Attorney and a Special Assistant United States Attorney with the United States Department of Justice. . . . Dr. Titus holds the J.D. degree (cum laude) from Harvard . . . . .... His views on constitutional law and policy have received wide circulation on the Internet and other media, and among members of Congress, state legislatures, and public policy advocates and organizations. Id. 3 TITUS, supra note 1, at 22.

Christian parents and educators, who agree with Titus, are forced to consider the practical effects of this doctrine: Would the moral culture in public schools be improved if all Christian educators removed themselves? Are most parents able or willing to make the sacrifices necessary to leave public education? After all the publicity and notoriety of court cases and legislation opposing historic Christian principles and morality, an estimated 85% of Christian families still choose to send their children to public schools.4 Should Christian parents and churches refrain from interacting with charter schools? Or, do charter schools present a biblically viable opportunity for churches to convey a biblical worldview to the children of church families who rely on public education? And, finally, should Christian homeschooling families, who participate with publicly funded charter schools, reconsider that choice due to the ethical implications of the Titus Doctrine? This article challenges the Titus Doctrine and recommends that local churches engage with expanding charter schools. Section II overviews how charter schools are currently impacting public and private education and how two large Evangelical denominations have wrestled with the Titus Doctrine when responding to the challenge of public schools generally. Section III provides a biblical critique of the Titus Doctrine. Section IV argues that the Titus Doctrine played no historical role in the Reformation or American education. This shows that the Titus Doctrine is actually a modern reaction to the Supreme Courtâ&#x20AC;&#x2122;s novel legal doctrine of Separation of Church and State, which originated in the second half of the Twentieth Century. Finally, Section V considers the practical limitation of the Titus Doctrine as a viable response to modern public education and suggests alternative church responses to public education now made possible due to the proliferation of public charter schools.

Dan Smithwick, On Choosing Leaders, NEHEMIAH INST. (Nov. 7, 2012), http://www.nehemiahinstitute.com/articles/index.php?action=show&id=36.

II. Overview of How Charter Schools Are Impacting Public Education and How Two Large Evangelical Denominations Have Wrestled with the Titus Doctrine When Responding to the Challenge of Public Schools. Charter schools are publicly funded but independently operated. Charter school reforms are changing the landscape of education in California and many other states.5 These reforms are intended to infuse parental choice, innovation, and competition into the public education system.6 Because of this, charter schools are not encumbered by many legal restrictions placed on traditional public schools, such as neighborhood attendance requirements and in many cases teacher union obligations.7 Compared to traditional public schools, charter schools offer parents more choices and opportunities to impact the educational experiences of their children. In particular, charter homeschooling (also called off-site learning, home-based or independent study) permits parents to function as the primary educators for their own children, while still receiving public benefits and services. Because they are government funded, charter schools are permitted to provide only non-sectarian instruction and curricula.8

Klara East, Charter Homeschool Programs, HOMESCHOOL ASS’N OF CAL. (2008), http://www.education.com/reference/article/Ref_Charter_Homeschool/. 6 Nat’l All. for Pub. Charter Sch., Public Charter School Movement Celebrates 20 Years of Public Education Innovation, Student Achievement, and Parental Choice, PR NEWSWIRE (Sept. 6, 2012), http://www.prnewswire.com/news-releases/public-charterschool-movement-celebrates-20-years-of-public-education-innovation-studentachievement-and-parental-choice-168787046.html. 7 According to Nina Rees, president and CEO of the National Alliance for Public Charter Schools (NAPCS), “After more than 200 studies on charter schools, we’ve learned that eliminating unnecessary restrictions on how we teach, and breaking down the barriers of who can help children learn, has enhanced how children can achieve, learn, and develop.” Id. 8 CAL. CONST. art. IX, § 8 (“No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.”). See also CAL. EDUC. CODE § 47605(d)(1) (West 2015) (“In addition to any other requirement imposed under this part, a charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations, shall not charge tuition, and shall not discriminate against any pupil on the basis of the characteristics listed in Section 220.”).

Two prominent Christian homeschool groups have adopted the Titus Doctrine and therefore object to charter schools as a matter of religious conviction. Specifically, the Home School Legal Defense Association (HSLDA) opposes charter homeschooling because it involves accepting government funding and influence.9 HSLDA represents tens of thousands of families, according to its website. HSLDA warns parents on its website: When parents enroll their child in a full-time, classroombased charter school, it is obvious that they are signing away much of their parental right to direct their child’s education. . . . In reality, parents who accept government money through home-based charter schools are still signing over ultimate educational control of their children to the state. Enrolling in a home-based charter school creates a little public school in your home. This is why HSLDA has for years opposed public school Independent Study Programs in California, and it’s why we oppose home-based charter schools.10 The other notable homeschool group opposing charter school is the Christian Home Educators Association (CHEA) of California. This group, likewise, objects to charter homeschooling based on theological concerns: God has not ordained that parents should have a government facilitator, specialist, guide, teacher, advisor, or assessor for the training of their children to His glory. . . . Parents are the ones responsible to God for educating their children—not civil government. . . . Charter schools offering independent study require the parents to enter into a contract with the government school. . . . “Do not be unequally yoked together with unbelievers.” [2 Cor. 6:14].11 CHEA explains the threat posed by charter schools on its website: 9

The Problem with Home-based Charter Schools: HSLDA’s Position in the Charter School Debate, HOME SCH. LEGAL DEF. ASS’N (June 26, 2002), http://www.hslda.org/ docs/nche/000010/200206260.asp. 10 Id. 11 Why Charter Schools Won’t Work for Christians, CHRISTIAN HOME EDUCATORS OF CAL. 3 (2002), http://www.cheaofca.org/_data/n_0001/resources/live/Charter_ Schools.pdf.

The charter school movement is a serious threat to true family freedom for several reasons. . . . [A]s larger numbers of families leave private education in favor of charter schools, it weakens the private education movement by reducing their numbers. . . . The Christian education that is necessary to raise children to the glory of God SIMPLY CANNOT BE FOUND IN CHARTER SCHOOL.12 Despite the opposition of homeschool groups and teachers unions,13 charter schooling is growing in popularity. The 2013 USC School Performance Dashboard documents the expansion of charter schools in California: After two decades of offering school choice to families, the charter school movement in California has spurred the creation of 1,065 of the nation’s 6,000 charter schools. The growth, moreover, has been explosive: Nationwide, one in five of the new public charter schools that opened last year was based in California. Statewide, the number of charter schools has doubled every five years.14 Experts are predicting even greater growth in charter schools in the future.15

Id. at 4. Charter Schools, NAT’L EDUC. ASS’N, http://www.nea.org/home/16332.htm; see also The Problem with Home-based Charter Schools, supra note 9. 14 Ctr. on Educ. Governance, School Performance Dashboard, UNIV. OF S. CAL. 2 (2013), http://www.usc.edu/ dept/education/cegov/products/csiinteractive/pdfs/usc_charter_perf_dash_2013_ FINAL.pdf. 15 The Explosion of Charter Schools in America, U.S. NEWS & WORLD REP. (Dec. 9, 2009), http://education.usnews.rankingsandreviews.com/articles/education/highschools/2009/12/09/the-explosion-of-charter-schools.html. In addition, . . . California leads the nation in the number of charter schools. In less than 20 years, education activists have started nearly 5,000 of these institutions, which are publicly financed and free for students to attend but independently operated. The charter schools boom is expected to grow as states remove or increase the caps on the number of such schools permitted to operate in each state. . . . The Obama administration pledges millions toward the expansion of charter schools. Id. 13

CHEA’s concern that charter schools pose a threat to private homeschooling is reasonable, since private school and public school enrolments are reported to be diminished by charter school expansion. The CATO Institute (CATO) reports: Charter schools are changing public and private school enrollment patterns across the United States. . . . While most students are drawn from traditional public schools, charter schools are pulling large numbers of students from the private education market and present a potentially devastating impact on the private education market. . . . Overall, about 8 percent of charter elementary students and 11 percent of middle and high school students are drawn from private schools. . . . [T]he primary growth in public enrollments has been in charter schools. Since 2000, charter enrollments grew by about 17 percent per year.16 The data examined by CATO showed a shift toward charter schools is occurring in America affecting the educational experiences of large numbers of formerly private school children. A recent Phi Delta Kappa International (PDK)/Gallop poll indicated that charter school reform has garnered extensive popular support, which solidifies its position as an enduring reform movement.17 According to the PDK/Gallop poll, 68% of the American public is favorable toward charter schools and 67% would support new charter schools in their communities.18 An overwhelming majority of Americans (90%) favor having public schools provide services to homeschooled children.19 While the popularity of charter school is increasing, support for voucher programs is shrinking. Voucher programs permit state funding to follow students to the school of their parents’ choice, including faith-based 16

Richard Buddin, The Impact of Charter Schools on Public and Private School Enrollments, 707 POL’Y ANALYSIS 2–3 (August 28, 2012), http://www.cato.org/sites/ cato.org/files/pubs/pdf/PA707.pdf. 17 William J. Bradshaw & Shane J. Lopez, Which Way Do We Go?: The 45th Annual PDK/Gallup Poll of the Public’s Attitudes toward the Public Schools, KAPPAN MAG. ONLINE (Sept. 2013), http://pdkintl.org/noindex/2013_PDKGallup.pdf. 18 Id. at 17. 19 Id.

schools. The PDK/Gallop poll reported that 70% of Americans oppose private school vouchers—”the highest level of opposition to vouchers ever recorded in this survey.”20 In California, the electorate has twice rejected voucher propositions with over two to one voter opposition (Prop. 174 in 1993 and Prop. 38 in 2000).21 Therefore, it is not likely that a voucher program will be an educational consideration for California anytime in the foreseeable future, while charter schools are attracting more and more families. How should local churches respond to charter school expansion? Should churches follow the pattern of HLSDA and CHEA and warn their parishioners about the danger of being unequally yoked with publicly funded charter schools? Or should local churches assist and organize parents in developing new methods of inculcating a biblical worldview through education experiences compatible with the increased flexibility afforded to parents by charter school reforms? The answer to these questions will depend in part on the extent to which the leadership of each church accepts or rejects the Titus Doctrine, which states that the Bible prohibits government from engaging in education. Evangelical Leaders and Denominations Have Wrestled with the Titus Doctrine The Titus Doctrine underpins a movement led by prominent Evangelical leaders calling for all Christian families to remove their children from public schools. The Alliance for the Separation of School and State advocates for the end of all “government involvement in education.” 22 This effort has been endorsed by notable Christian leaders, such as Tim LaHaye, Marvin Olasky, D. James Kennedy, Ronald Nash, David Noebel, Gary North, Gary DeMar, R. J. Rushdoony and Herb Titus.23 Closely linked 20

Id. at 16. California Proposition 174, School Vouchers (1993), BALLOTPEDIA, http://ballotpedia.org/wiki/index.php/California_Proposition_174,_School_Vouchers_ (1993) (last visited Feb. 20, 2016). “If Proposition 38 had been approved, it would have authorized annual state payments of at least $4,000 per pupil for attendance at private schools, including private religious schools.” California Proposition 38, School Vouchers (2000), BALLOTPEDIA, http://ballotpedia.org/wiki/index.php/California_ Proposition_38_School_Vouchers_(2000) (last visited Feb. 20, 2016). 22 Opinion Leaders Endorse ‘Separation of School and State,’ ALL. FOR THE SEPARATION OF ST. AND SCH. (May 7, 2009), http://www.schoolandstate.org/proclamation.htm. 23 Id. 21

to this alliance is Frontline Ministries headed by E. Ray Moore, Jr., who in 1997 launched the Exodus Mandate Project, calling for an exodus of Christian families from public schools.24 Contrarily, other Christian leaders encourage churches and Christian families to more effectively train their children to be witnesses for Christ in the public schools.25 For example, Franklin Graham, son of evangelist Billy Graham and president of Samaritan’s Purse, asserts, “Let’s don’t surrender public schools; let’s take them back. . . . We are going to have witnesses in every class—a young kid who can stand up and share his faith in Jesus Christ.”26 The Titus Doctrine may have shaped the debate, but it has not prevailed, in two prominent Evangelical denominations: the Southern Baptist Convention (SBC) and the Presbyterian Church of America (PCA). The SBC is the largest Evangelical denomination in America and the PCA one of the fastest-growing Evangelical denominations in America. Both considered, but rejected, resolutions calling for the removal of Christian children from public schools.27 The SBC 2006 annual meeting deliberated over how churches should respond to the increasing secularization of public schools. A resolution was hotly debated calling for all Southern Baptists to remove their children from public schools. In the end, the Franklin Graham wing won out, and a resolution was adopted encouraging SBC churches to engage with public education.28

E. Ray Moore, Our Mission: Defining The Exodus Mandate, EXODUS MANDATE, http://exodusmandate.org/about/mission (last visited Nov. 25, 2015). 25 Marcia Segelstein, Should Christians Attend Public Schools?, WORLD MAG. ONLINE (DEC 9, 2011), http://www.worldmag.com/2011/12/should_christians_attend_public_ schools. 26 Jennifer Davis Rash, Franklin Graham’s Vision: A Student Evangelist in Every Public School Class, THE BAPTIST STANDARD (June 25, 2004), https://www.baptiststandard. com/resources/archives/44-2004-archives/2086. 27 Bob Allen, PCA Rejects Resolution Against Public Schools, ETHICSDAILY.COM (June 17, 2005 12:00 AM), http://www.ethicsdaily.com/pca-rejects-resolution-against-publicschools-cms-5907. 28 S. Baptist Convention, Resolution No. 10: On Engaging the Direction of the Public School System, SBC NET (2006), http://www.sbcannualmeeting.net/sbc06/resolutions/ sbcresolution-06.asp?ID=10.

Similarly, a year earlier in 2005, the PCA considered a resolution calling for the removal of Christian children from public schools.29 Despite the notable endorsements of D. James Kennedy and Joel Belz (founder of World magazine), the resolution was soundly defeated. 30 The General Assembly’s Committee of Commissioners on Bills and Overtures voted it down 32–10 with one abstention. 31 The committee stated that decisions about public vs. private schooling are “best left to the wisdom of parents” under the guidance of their pastor.32 The rejection of these measures by the SBC and the PCA indicates that neither denomination fully endorses the Titus Doctrine. III. A Biblical Critique of the Titus Doctrine New Testament Theology In an article, “Biblical Principles of Law,” Titus argues that the teaching of the New Testament denies government any jurisdiction over education.33 To support his conclusion, Titus conflates James Madison’s “statements about God’s exclusive jurisdiction over men’s minds”34 with Jesus’ answer to Pontius Pilot: “Art thou the king of the Jews? . . .” Jesus answered, “My kingdom is not of this world . . . To this end, was I born, and for this cause came I into the world, that I should bear witness unto the truth.”35 “By this statement,” Titus asserts, “Christ denied that Caesar had any jurisdiction to determine what is true.”36 Titus continues to expound the passage above: Moreover, He denied to the state any authority to teach, “to bear witness to the truth.” He claimed for Himself the exclusive right to men’s minds and therefore, the right to 29

Allen, supra note 27. Id. 31 Id. 32 Id. 33 TITUS, supra note 1, at 19–22. 34 Id. at 20. 35 Id. 36 Id. 30

delegate the authority to judge and to influence opinions to whomever He chose.37 Obviously, it is anachronistic to ascribe to the intended meaning of Jesus any statements subsequently penned by Madison. Christ’s proclamation that he came to bear witness to the truth should not be construed as a prohibition forbidding anyone else to bear witness to the truth. Jesus encourages truth-telling, he simply did not say that he held exclusive jurisdiction to bear witness to the truth. Titus’ interpretation is an implausible stretch. In context, Jesus’ answer to Pilate was about his own kingdom and his own life’s purpose, not about the jurisdiction of the governments of this world. The submission of Jesus to the interrogation and sentencing by Pilate pertains more directly to the jurisdiction of earthly kingdoms. Especially when Jesus told Pilate, “Thou couldest have no power at all against me, except it were given thee from above.”38 In addition to Christ’s answer to Pilate, Titus relies upon the civildisobedience of the first apostles to buttress his conclusion: Christ did not give to the state any jurisdiction over education. The early church refused to acknowledge any such jurisdiction as evidenced by their steadfast refusal to comply with the Jewish Council’s order to stop teaching in the name of Jesus: “We ought to obey God rather than men.” They truly believed that Christ had delegated to the church the authority to teach. But they did not believe that such authority excluded God’s original injunction that the parents instruct their children. Rather, they used their authority as apostles to encourage and exhort parents to obey God’s command. Thus, Paul wrote to the Ephesians: “Fathers . . . bring . . . up [your children] in the discipline and instruction of the Lord.”39 Here, Titus points to an example of the apostles defying an order of the ruling Jewish Council (the Sanhedrin), which forbade them from doing 37

Id. John 19:11 (King James). 39 TITUS, supra note 1, at 21. 38

exactly what Christ had commissioned them to do, namely preach the gospel.40 However, it is a non sequitur to conclude that by their steadfast refusal to obey a particular command of the Sanhedrin, the apostles intended to affirm, as a doctrine of Jesus, that God did not allow governments to teach or discern truth. By affirming, “We ought to obey God rather than men,” the apostles were merely asserting that when a human authority (in this case the Sanhedrin) issues an order that would cause them to disobey a command of God, followers of Jesus ought to obey God. The apostle Paul would later affirm that a similar fidelity is also due to God over both church authority and angelic authority, if either were in error regarding gospel truth.41 By this Paul was not addressing whether churches or angels had jurisdiction to teach or discern truth. Likewise, the apostles were not addressing government’s jurisdiction to teach truth when they disobeyed what to them was an immoral command. By way of analogy, if a father commanded his adolescent son to murder their next-door neighbor, those same apostles hopefully would have urged the son to disobey the father’s immoral command. This hypothetical counsel from the apostles urging an exception to the commandment that children must obey their parents would not imply that the apostles intended to redefine the jurisdiction of family as an institution.42 Likewise, it simply does not follow that their refusal to obey an immoral command of the Sanhedrin is evidence that the apostles held the conviction that “Christ did not give to the state any jurisdiction over education,” as Titus asserts.43 Furthermore, the Sanhedrin of the day was presided over by the High Priest and populated by Sadducees and Pharisees who proscribed the local civic and religious instruction for the people of first century Jerusalem. Jesus affirmed their authority to teach when he told his listeners to obey their teaching, but not to follow their example.44 There is no reason to suppose that the apostles intended to tacitly reverse this express admonition of Jesus, by refusing to abide by the Sanhedrin’s immoral command. If the apostles had intended to prohibit the Sanhedrin (or civil government in 40

Matthew 28:19–20; Acts 5:29. Galatians 1:8. 42 Ephesians 6:1. 43 TITUS, supra note 1, at 21. 44 Matthew 23:3. 41

general) from teaching or bearing witness of the truth, they could have done so expressly in their letters of instruction to the churches living under Roman rule. Far from excluding government from the sphere of moral education, the New Testament authors acknowledged that God has imposed a particular moral obligation on all government leaders. Both Peter and Paul presupposed that government leaders are capable of discerning good from evil and ruling justly over the governed on God’s behalf. Paul taught the church in Rome that their pagan governmental authorities were God’s servants/ministers for the good of the governed, including the church.45 Thus, rebellion against his servant is rebellion against God.46 God instituted and empowered government to do his righteous will, specifically to punish evil and commend those who do good.47 In order to mete out his wrath and rule in a just and orderly way, God empowered government with the sword (coercive power)48 including capital punishment.49 Earlier in this same letter to God’s people in Rome, Paul explained that God endowed all people, including gentiles (i.e. pagan rulers), with the faculty to discover the moral obligations of the law by writing on their hearts the law of nature.50 Civil leaders, as God’s agents are obliged to rightly discern the truth about whether human behaviors are evil or good. Since God has delegated to his servants, in government, the obligation to punish evil and commend good, He must also have granted them the requisite jurisdiction to instruct the governed about the moral truth of just laws. If government is to rule justly and predictably, it must write and promulgate laws that proscribe evil and articulate the desired good behavior which government ought to commend. Its communiqués must bear witness to the truth regarding God’s moral law, which distinguishes good and evil behavior.51

Romans 13:1–7; 1 Peter 2:13–17. Romans 13:2; 1 Peter 2:14. 47 Romans 13:3–4 (New Am. Standard Bible); 1 Peter 2:14, (Eng. Standard Version). 48 Romans 13:4. 49 Genesis 9:6. By demanding recompense for the destruction of innocent human life, God uses government to honor the Image of God and defend the value of all people. 50 Romans 2:14–15. 51 Romans 2:14–15; Romans 13:1–7. 46

Elsewhere, Titus acknowledges that there can be no neutrality with regard to education. He writes, “The goal of neutrality long pursued by the Court in the prayer and Bible-reading cases is, in fact, unreachable because religious neutrality in education is a myth.”52 Similarly, there can be no neutrality in the moral underpinning of the laws a government teaches and punishes. It is a perverse and evil government that commends evil behavior and punishes good behavior.53 If, in fact, “Christ denied that Caesar had any jurisdiction to determine what is true,” and “to bear witness to the truth,”54 then Caesar would be prohibited not only from teaching, but also from ruling; thus the Titus Doctrine prohibits too much and becomes incoherent. Titus continues: Having already delegated the authority to teach to the family and to the church, God left no room for Caesar to assume any jurisdiction whatsoever over truth or over its instruction. Had Christ given to the State jurisdiction over education, then the State would have inevitably encroached upon God’s exclusive jurisdiction over men’s hearts. . . . Without question, God has denied to the State any jurisdiction over men’s hearts and minds. In addition, God has denied to the State any authority to teach because in such authority lay the key to men’s hearts and minds. Instead, God has given that authority to others, the family and the church, and has sent the Holy Spirit into the world to “convict the world concerning sin and righteousness and judgment.” . . . . Because the very nature of the State authority requires the wielding of the sword, God has clearly disqualified Caesar from exercising any jurisdiction over education.55 According to Titus it is appropriate for church and family to share a mutual duty and interest in education, even though both institutions can be coercive in practice. The church wields the power of excommunication; parents have 52

Herbert W. Titus, Public School Chaplains: Constitutional Solution to the School Prayer Controversy, 1 REGENT U. L. REV. 19, 25 (1991). 53 Isaiah 5:20, 23. 54 TITUS, supra note 1, at 20. 55 Id. at 21–22 (footnotes omitted).

authority to discipline. Abusive churches and irresponsible parents can have a devastating impact on the hearts and minds of individuals, which may be just as cruel as the impact of a tyrannical government. Since church and family wield coercive power without encroaching on God’s exclusive jurisdiction over men’s hearts and minds, then the state need not be excluded from education, as Titus asserts without question. In truth and praxis, all governments have an interest in the education and moral rightness of the governed to assure that just laws will be understood and obeyed. This was the case under both the Mosaic Law of the Old Testament and the practices of first-century Judea in the New Testament. Old Testament Theology The salient Old Testament passage on education is referred to as the Shema.56 The Shema is named for the first Hebrew word of the passage.57 It has been said that the Shema is the first prayer that a Jewish child learns, and the last prayer said before his death.58 In the Shema, God commands the Israelites to impress divine commandments on their children in every aspect of their day: Recite them to your children. Talk about them when you are sitting around your house and when you are out and about, when you are lying down and when you are getting up. Tie them on your hand as a sign. They should be on your forehead as a symbol. Write them on your house’s doorframes and on your city’s gates.59 Through the Shema, Moses instructed the whole nation corporately to educate their children for the purpose of loving God: “Love the Lord your God with all your heart and with all your soul and with all your strength.”60 Thus, the primary purpose of education (as taught by Israel’s governmental

Deuteronomy 6:4–9. See Shraga Simmons, What is behind the most famous Jewish prayer?, AISH.COM (June 8, 2002), http://www.aish.com/jl/m/pb/48954656.html. 57 Id. 58 Id. 59 Deuteronomy 6:7–9 (Common English Bible). 60 Deuteronomy 6:5.

leader and law-giver, Moses) was to love God and obey his commands.61 The secondary purpose of education was to teach about the practical aspects of life: boys would learn a trade, while girls were taught how to care for a home, apply dietary laws and be good wives.62 As expressed in the Shema, education about God and his commands occurs not merely in a classroom, but encompasses intergenerational discipleship in all aspects of life: personal devotion with symbols attached to one’s own body, in private conversations in the home, and public conversations on the street. Also, the commands of God were institutionally taught and civically endorsed by being posted on the city’s gates.63 All these enculturating forces were brought to bear to inculcate the next generation of Israelites to love God and obey his commandments. Consequently, in ancient Israel parents were responsible for teaching their children, but Levitical priests and government judges were also expected to teach. For example, God addressed Aaron and his sons as priests of the nation, and he commanded them to “teach the Israelites all the decrees the LORD has given them through Moses.”64 Likewise, Moses instructed the people of Israel when considering difficult court cases to “Go to the Levitical priests and to the judge who is in office at that time. . . . Be careful to do everything they instruct you to do. Act according to whatever they teach you and the decisions they give you.”65 Likewise, the Persian King Artaxerxes presumed that a restored Judean government must possess jurisdiction to teach; Artaxerxes commissioned “Ezra as a priest and teacher of the Law of the God of heaven . . . to appoint magistrates and judges to administer justice to all the people of Trans-Euphrates—all who know the laws of your God. And you are to teach any who do not know them.”66 When Mosaic Law is presented in the Old Testament, priests, judges and magistrates are expected to teach God’s law. Sadly, the biblical history of ancient Israel shows that many subsequent generations failed to receive the educational blessing and so rebelled against 61

Holman Bible Dictionary: Education in Bible Times, STUDYLIGHT.ORG, http://www.studylight.org/dictionaries/hbd/view.cgi?n=1737. 62 Id. 63 Deuteronomy 6:9. 64 Leviticus 10:8–11. 65 Deuteronomy 17:10–11. 66 Ezra 7:11–28.

God’s love and commands. This illustrates why Christians today must be vigilantly concerned with inculcating a love for God and his commands to the next generation.67 In the Days of Christ In his classic work, Sketches of Jewish Social Life in the Days of Christ, Alfred Edersheim explained that children’s education was under the direction of their parents, but at the age of six boys were sent to primary or elementary schools which were attached to every synagogue in the land.68 Schoolmasters were called the “chassan,” or “minister”69 and were appointed and salaried by the synagogue.70 Donald Binder describes the function of synagogues at the time of Christ: Synagogues served a variety of functions, both civic and religious. Here we must remember that the dividing wall between state and religion, so characteristic of modern Western societies, did not exist in antiquity. Within the synagogues, religion and civic affairs were inextricably intertwined. Consequently, synagogues frequently served as venues for civil and criminal courts. Political assemblies met inside them, as did special interest groups like Jewish burial societies. Synagogues also functioned as museums for votive offerings and archives for decrees and legal documents, both of which were often inscribed on steles [stone monuments].71 These schoolmasters were not permitted to receive fees directly from their pupils, lest they should show favor to the rich. 72 “The expenses were met by voluntary and charitable contributions; and in case of deficiency the most 67

Romans 11: 21–22; 1 Corinthians 10:11. ALFRED EDERSHEIM, SKETCHES OF JEWISH SOCIAL LIFE IN THE DAYS OF CHRIST 133 (1876), http://levendwater.org/books/sketches_edersheim.pdf. 69 See Luke 4:20. 70 EDERSHEIM, supra note 68, at 137. 71 Donald D. Binder, Synagogue FAQs, SECOND TEMPLE SYNAGOGUE, http://www.pohick.org/sts/faqs.html (last visited Jan. 9, 2016). 72 EDERSHEIM, supra note 68, at 137. 68

distinguished Rabbis did not hesitate to go about and collect aid from the wealthy.”73 At the age of 16 the boys were generally sent to the Rabbi’s academies.74 According to Edersheim, these were all Jewish practices in place when Jesus said, “The student is not above the teacher, but everyone who is fully trained will be like their teacher.”75 Edersheim notes that the Talmud credits Ezra for writing a law that requires “that as many schoolmasters as chose should be allowed to establish themselves in any place, and that those who had formerly been settled there might not interfere with them.”76 Thus, Ezra held legislative control over the education of children at the synagogues. This particular law provided for competition among the schoolmasters, by allowing newcomers to start up and by not allowing established schoolmasters to interfere or hinder them, even while schoolmasters were paid by the synagogue. An analogy to our present time might be charter school reform which permits new upstart charter schools to compete for students whose education is funded by the government and prohibits established public schools from interfering or hindering them. Like the ancient chassans, charter schools are prohibited from receiving fees from students or their families. In sum, in the teachings of Paul and Peter, in the Old Testament and in the Jewish custom at the time of Christ, it was recognized that civil leaders had jurisdiction under God to instruct the governed as to the truth of how they should obey the moral laws of God, whether they were written by God on the human heart in nature or in stone for Moses.77 The Titus Doctrine directly contradicts what is taught in Romans 13:1–7 and 1 Peter 2:13–17, and is incoherent with the biblical role of government which necessarily teaches morality by the human behavior it punishes or alternately commends. In truth and praxis, all governments have an interest in the education and moral rightness of the people they govern. In the Old Testament Moses instructed the nation corporately.78 Parents were the earliest agency of education, but outside of the home the Levitical priests and government judges were expected to teach and instruct the whole

Id. at 136–37. Id. at 134. 75 Luke 6:40 (New Int’l Version). 76 EDERSHEIM, supra note 68, at 134 (citations omitted). 77 Romans 2:12–16. 78 Deuteronomy 5:1–6:9. 74

community in all the decrees and laws of God.79 At the time of Christ, local synagogues controlled public education and most other community functions, both civic and religious.80 From Whence Comes the Titus Doctrine? If the government shared a role in education in biblical times, and if all governments teach morality by the laws they promulgate and punish, then where and when did the Titus Doctrine originate? In the second half of the Twentieth Century the Titus Doctrine was conceived and disseminated primarily by the efforts of one prolific theologian: Rousas John Rushdoony (1916–2001). Rushdoony is regarded as father of the Christian Reconstructionist movement, which advocates for the imposition of ancient Mosaic Laws for nations in post-biblical times.81 Although Rushdoony’s theology is unabashedly Calvinistic, John Calvin himself strenuously objected to the notion of applying Mosaic Law to post-biblical governments. Calvin called the idea “seditious” and “false and foolish,” leading to results that would be “malicious and hateful toward public welfare.”82 79

Leviticus 10:8–11; Deuteronomy 17:10–11. Binder, supra note 71. 81 Jeremy Hexham, The Appropriation of the Dutch Neo-Calvinist Concept of “Worldview,” and the Way it was Popularized Among American Evangelical Christians by Francis Schaeffer 33 (Aug. 2010), (unpublished M.A. thesis, Athabasca University), http://dtpr.lib.athabascau.ca/action/download.php?filename=mais/MAIS%20701702%20Final%20Project-Jeremy%20Hexham%20_combined_.pdf. See also Molly Worthen, The Chalcedon Problem: Rousas John Rushdoony and the Origins of Christian Reconstructionism, THE FREE LIBR. (June 1, 2008), http://www.thefreelibrary.com/ The+Chalcedon+problem%3A+Rousas+John+Rushdoony+and+the+origins+of...a0180278685. 82 John Calvin stated that civil leaders go astray when they attempt to impose Mosaic Law on Christian nations or commonwealths. Calvin wrote: I would have passed over this matter in utter silence if I were not aware that here many dangerously go astray. For there are some who deny that a commonwealth is duly framed which, neglecting the political system of Moses, is ruled by the common laws of nations. Let other men consider how perilous and seditious this notion is; it will be enough for me to have proved it false and foolish. We must bear in mind that common division of the whole law of God published by Moses into moral, ceremonial, and judicial laws. And we must consider each of these parts, that we may understand what there is in them that pertains to us, and what does not. . . . Therefore, as ceremonial laws [given to Moses to foreshadow the death of Christ] could be abrogated while piety remained safe and 80

Rushdoony founded the Chalcedon Foundation, a nonprofit organization dedicated to the dissemination of Reconstructionist scholarship.83 Gary North (a collaborator and son-in-law of Rushdoony) summarized Chalcedon’s views of American education: Rushdoony first sounded the alarm among Christian scholars: that 1) all state-supported, taxpayer-financed education is inherently immoral and anti-Christian, since it removes the authority over education from parents, and 2) the Unitarians had invented the public school system to further their own messianic and salvational agenda.84 Other writers who are part of the Christian Reconstructionist movement (also known as Theonomy or Dominion Theology) include Gary North, David Chilton, Gary DeMar, Samuel Blumenfeld and Greg Bahnsen, all of

intact, so too, when these judicial constitutions [the legal code of Moses given to the particular nation state of Israel] were taken away, the perpetual duties and precepts of love could still remain. But if this is true, surely every nation is left free to make such laws as it foresees to be profitable for itself. Yet these must be in conformity to that perpetual rule of love, so that they indeed vary in form but have the same purpose. . . . It should be clear that the law of God which we call the moral law is nothing else than a testimony of natural law and of that conscience which God has engraved upon men’s hearts. . . All codes equally avenge murder with blood, but with different kinds of death. . . . Yet we see how with such diversity, all laws tend to the same end. For, together with one voice, they pronounce punishment against those crimes which God’s eternal law has condemned, namely, murder, theft, adultery, and false witness. But they do not agree on the manner of punishment. Nor is this either necessary or expedient. . . . In drought, in pestilence, unless greater severity is used, everything will go to ruin. . . . How malicious and hateful toward public welfare would a man be who is offended by such diversity, which is perfectly adapted to maintain the observance of God’s law? (emphasis added). JOHN CALVIN, INSTITUTES OF THE CHRISTIAN RELIGION 215–17 (Henry Beveridge trans., 1989) (1560). 83 Worthen, supra note 81. 84 GARY NORTH, POLITICAL POLYTHEISM: THE MYTH OF PLURALISM 644 (1989), http://www.garynorth.com/Political_Polytheism.pdf.

whom have written extensively urging Christian families to withdraw their children from public/government schools.85 Consequently, to the Glory of God and to their credit, the Christian Reconstructionists were effective in developing the homeschool movement and establishing many private Christian schools, due to their hard work and conviction that government should not be in the school business.86 None worked harder to this end than Rushdoony, himself, according to Jeremy Hexham.87 Hexham asserts that Rushdoony was “largely responsible for the growth of so-called ‘Christian schools’ and ‘Christian homeschooling’ in America.”88 Samuel Blumenfeld is an education historian who served on the staff at the Chalcedon Foundation. In the forward of a book by Rushdoony, Blumenfeld writes: Dr. Rushdoony organized many Christian school seminars in Southern California in the late ‘60s and early ‘70s. . . . It was Dr. Rushdoony’s incisive indictment of secular humanist education that convinced Christian parents of the urgent need for Christian education. . . . . . . Today, just about every state in the Union has a large and powerful Christian home-school organization, thanks to the teaching and encouragement of Dr. Rushdoony.89 Greg Durand was formally a Christian Reconstructionist, but he later reconsidered his position, and wrote critically of the movement. Durand notes: The Christian homeschool movement has also proven to be fertile soil for the growth of Reconstructionist ideas and Rushdoony is often credited with being the ‘Moses’ who led 85

Greg Loren Durand, Judicial Warfare: The Christian Reconstruction Movement and its Blueprints for Dominion, YURICA REPORT (Aug. 29, 2013), http://www. yuricareport.com/Dominionism/HistoryOfReconstructionMovement.html. 86 Samuel Blumenfeld, Forward to ROUSAS JOHN RUSHDOONY, INTELLECTUAL SCHIZOPHRENIA: CULTURE, CRISIS AND EDUCATION, at i-iii (reprt. 2002). 87 Hexham, supra note 81, at 33. 88 Id. 89 Blumenfeld, supra note 86.

the exodus of Christian children from the public school system. In fact, the Homeschool Legal Defense Association was founded in 1983 by Michael Farris, one of Rushdoony’s followers, gaining over fifteen thousand members within the first seven years of its existence.90 For this reason, many homeschool families and conservative church leaders are often circumspect about public charter schools, without necessarily subscribing to Reconstructionism or being aware of the origins of the Titus Doctrine. Also influenced by Rushdoony was Herb Titus. “It was Dr. Rushdoony,” says Titus himself, “who had a profound impact upon my life as a law professor and as a lawyer.”91 However, Titus is careful to distinguish his legal philosophy from Christian Reconstructionism with regard to the application of Mosaic Law in post-biblical times: I am not a “Christian Reconstructionist.” . . . I made my position clear—that no civil government—other than the ancient state of Israel—had been given any authority by God to impose the death penalty upon any person who had been duly convicted of sodomy, adultery, and other like “holiness” offenses. Additionally, I explained why Old Testament Israel was given such authority by God and why that authority no longer exists in any nation with the coming of Jesus Christ. I explained further how the death penalty authority for the crimes of adultery and sodomy was different from the death penalty authority with respect to conviction for murder which is rooted in the Noahic covenant binding on all nations even today.92 Titus is adamantly clear that he follows Calvin over Rushdoony with regard to the modern applicability of Mosaic Law. Nevertheless, with regard to whether “God has denied to the State any authority to teach,” Titus 90

Durand, supra note 85. Herb Titus, Audio recording: The Impact of R. J. Rushdoony on Jurisprudence (Oct. 25, 2010), http://theonomyresources.blogspot.com/2010/10/impact-of-rushdoony-onjurisprudence.html. 92 Herbert Titus, quoted in The Jon Rowe Archives (April 29, 2005), http://jonrowe. blogspot.com/2005_04_01_archive.html. 91

follows Rushdoony in contradistinction of Protestant reformers, such as Luther, Calvin and Knox.93 Hence, the appellation, “Titus Doctrine” is warranted. As a Harvard trained law professor, Titus has been uniquely positioned to advance this doctrine in legal and academic scholarship. IV. Historical Critique of the Titus Doctrine The Protestant Reformers never abided by the Titus Doctrine. Luther, Calvin and Knox believed that government has a moral and pragmatic duty to subsidize public education to insure that there would be well educated leaders for both civil and church government in the future.94 These reformers advocated for government subsidized schools and compulsory education laws for children. Luther, Calvin and Knox aggressively advanced this belief through government policy. Historian Riemer Faber writes: It is sometimes forgotten that the Reformation was as much concerned with school as it was with church and home. Appreciating the role of education in directing church and society back to the source of the Christian faith, the reformers were committed to the schooling of the young.95

TITUS, supra note 1, at 22. Martin Luther, A Sermon on Keeping Children in School (1530), reprinted in SELECTED WRITINGS OF MARTIN LUTHER 1529–1546 121 (Theodore G. Tappert ed., Charles M. Jacobs trans., Fortress Press 1967); MARTIN LUTHER, TO THE CHRISTIAN NOBILITY OF THE GERMAN NATION RESPECTING THE REFORMATION OF THE CHRISTIAN ESTATE (1520), reprinted in FIRST PRINCIPLES OF THE REFORMATION, OR, THE NINETYFIVE THESES AND THE THREE PRIMARY WORKS OF MARTIN LUTHER 15 (Henry Wace & C.A. Buchheim, eds., William Clowes & Sons, Ltd. 1883); 1 John Calvin, Draft Ecclesiastical Ordinances (1541), reprinted in CALVIN: THEOLOGICAL TREATISES, 58 (J.K.S. Reid ed., Westminster Press 1954); JOHN KNOX, THE WORKS OF JOHN KNOX 183– 260 (David Lain ed., 1846), https://ia600404.us.archive.org/12/items/ worksofjohnkn01knox/worksofjohnkn01knox.pdf. 95 Riemer Faber, Martin Luther on Reformed Education, SPINDLEWORKS (1998), http://www.spindleworks.com/library/rfaber/luther_edu.htm. 94

The Education Legacy of Martin Luther: Bible-Centered, State-Subsidized, Compulsory Education Martin Luther (1483–1546) wrote two treatises on education that became the seminal influence for education reform throughout Germany and for other theologians to consider the role of education in society.96 The first of these two treatises was an open letter To the Christian Nobility of the German Nation in 1520. In this letter Luther argues that a successful reformation in Germany would require a universal education wherein every ten-year-old boy and girl should be familiar with the gospel: he writes: Above all, in schools of all kinds the chief and most common lesson should be the Scriptures, and for young boys the Gospel; and would to God each town had also a girls’ school, in which girls might be taught the Gospel for an hour daily . . . . Should not every Christian be expected by his ninth or tenth year to know all the holy Gospels, containing as they do his very name and life?97 Luther laments that Christian nations were failing to teach the gospel to children in school, which led to their moral corruption: Oh, how badly we treat all these poor young people that are entrusted to us for discipline and instruction! And a heavy reckoning shall we have to give for it that we keep them from the word of God. . . . We do not perceive all this misery, how the young folk are being pitifully corrupted in the midst of Christendom, all for want of the Gospel, which we should always read and study with them.98 Based on this treatise to the Christian Nobility, Luther would seem to agree with Titus that it is no longer advisable for American Christian families to send their children to neighbourhood public schools: Luther warns: But where the Holy Scriptures are not the rule, I advise no one to send his child. Everything must perish where God’s word is not studied unceasingly . . . . I greatly fear the High 96

Id. LUTHER, supra note 94, at 82–83. 98 Id. at 83. 97

Schools are nothing but great gates of hell, unless they diligently study the Holy Scriptures and teach them to the young people.99 Nevertheless, the concern of this article is whether churches should assist families with children enrolled in public charter schools which offer greater flexibility and opportunity for institutional leadership from churches. Luther’s second treatise on education was written to the civil leadership of the large city of Nurnberg in 1530, entitled, “A Sermon on Keeping Children in School.”100 In his cover letter to the city leaders, Luther asks that his sermon be circulated among the pastors to impact all the citizens in Nurnberg and Germany at large.101 Luther implores all the churches of Germany to support education.102 He maintains that all Christians are bound according to the Gospel to financially support schools as well as pastors.103 To prevent the foreseeable harm of uneducated leaders, Luther urges the civil authorities to make education compulsory: he reasons that if government has the authority to conscript soldiers to war against other nations, then surely it has the power to compel education to fight against the devil’s great weapon of ignorance.104 Without anticipating a separation of 99

Id. at 83–84. Luther, supra note 94, at 121. 101 Id. at 124–125. 102 Id. at 126–27. 103 Id.at 162. 104 Id. at 124–125. Luther wrote: I hold that it is the duty of the temporal authority to compel its subjects to keep their children in school, especially the promising ones we mentioned above. For it is truly the duty of government to maintain the offices and estates that have been mentioned, so that there will always be preachers, jurists, pastors, writers, physicians, schoolmasters, and the like, for we cannot do without them. If the government can compel such of its subjects as are fit for military service to carry pike and musket, man the ramparts, and do other kinds of work in time of war, how much more can it and should it compel its subjects to keep their children in school. For here there is a worse war on, a war with the very devil, who is out to secretly sap the strength of the cities and principalities, emptying them of their able persons until he has bored out the pith and left only an empty shell of useless people whom he can manipulate and toy with as he will. That is, indeed, to starve out a city or a land and destroy it without a battle, before anyone is even aware of what is going on. 100

church and state, Luther regards Christian education as a duty incumbent upon the sphere of government, and essential to a healthy, orderly society.105 While the city of Nurnberg provided public schools, Luther argues that if need be parents, churches, charities, and governments alike should expend the necessary resources to make sure that talented boys stay in school.106 All these institutions have a stake and a duty to raise up educated leaders for the future, according to Luther.107 He holds that, unlike purchasing useless indulgences, financially supporting schools was an honourable way to donate to church and save future generations from hell.108 The topics to be studied in these public schools included the works of great pagan writers, in addition to Christian sources and the Holy Scriptures.109 Luther lauds the ancient Greeks and Romans for their educational emphasis on civic responsibilities. Luther writes: Although they [ancient Greeks and Romans] had no idea of whether this estate [government] were pleasing to God or not, they were so earnest and diligent in educating and training their young boys and girls to fit them for the task, that when I call it to mind I am forced to blush for us Christians.110 To sum up Lutherâ&#x20AC;&#x2122;s points, the Holy Scriptures must be the foundation for all schools, or they will be spiritually corrupting, and parents Id. 105

Id. at 164. Id. at 165. 107 Id. 108 Id. 109 Faber, supra note 95. 110 Martin Luther, To the Councilmen of Germany that They Establish and Maintain Christian Schools, reprinted in SELECTED WRITINGS OF MARTIN LUTHER 1529-1546, supra note 94, at 59 (Theodore, G. Tappert ed., Albert T. W. Steinhaeuser & Rev. Walther I. Brandt trans., 1967). Impressed with the ancient Greeks and Roman teaching civics effectively to youth, Luther wrote: Although they had no idea of whether this estate were pleasing to God or not, they were so earnest and diligent in educating and training their young boys and girls to fit them for the task, that when I call it to mind I am forced to blush for us Christians. Id. 106

should resist them.111 Christian nations and churches will have to give an accounting to God if they fail to teach the Bible to the children entrusted to their care. 112 All Christians are required by the Gospel to contribute for both teachers and pastors.113 Schools ought to teach all four of the Gospels to boys and girls before they reach the age of ten. 114 In Christian nations, government should subsidize these schools. 115 Government should mandate compulsory attendance at school. 116 All individuals and institutions have a stake and duty to provide education that will prepare leaders for the future. While parents are primarily responsible to God for the Christian education of their children, Luther wrote his open letters not to parents, but to nobles, government leaders, and fellow clergy urging them to provide Biblecentred, government-subsidized schools. Also, Pagan writers are worthy of study. And finally, all these points should be aggressively propounded from the pulpits all across Germany.117 The Education Legacy of John Calvin: “The Church Is the School of God” John Calvin (1509 –1564) should be viewed as “the de facto father of modern education” in numerous countries, including America, even more than Luther according to D. James Kennedy and Jerry Newcombe.118 Calvin would often refer to the church as “l’ecole de Dieu,” the school of God.119 In her biography of Calvin, Georgia Harkness describes the founding of Geneva’s Academy as a crowning achievement: The establishment of the Academy was Calvin’s crowning achievement in the building of a Christian state. It provided free instruction of all grades from primary work through a college course, and made special provision for the teaching 111

LUTHER, supra note 94, at 82–83. Id. at 83. 113 Luther, supra note 94, at 165. 114 LUTHER, supra note 94, at 82–84. 115 Luther, supra note 94, at 165. 116 Id. at 125. 117 Faber, supra note 95. 118 D. JAMES KENNEDY & JERRY NEWCOMBE, WHAT IF JESUS HAD NEVER BEEN BORN?: THE POSITIVE IMPACT OF CHRISTIANITY IN HISTORY 43 (1994). 119 Charles Dunahoo, John Calvin: The Reformer and Educator, COMMITTEE ON DISCIPLESHIP MINISTRIES (2009), http://www.pcacdm.org/john-calvin-the-reformer-andeducator/. 112

of religion. It drew students from all over western Europe, though the majority of its non-resident students were from France, and the Calvinistic teaching was thus spread over a very wide area. The doctrinal instruction given was so thorough that a “boy of Geneva could give a more rational account of his faith than a doctor of the Sorbonne.”120 In 1541, Calvin published his Ecclesiastical Ordinances (Ordinances), which explains how an academy should operate and why Bible-centred, government subsidized, compulsory education is necessary to sustain a reformed civil government and church.121 In his Ordinances, Calvin places the “order of the schools” under the auspices of “the order of the Church.”122 Nevertheless, church and school are meant to be two institutions standing side by side in society.123 Calvin requires that teachers and doctors [academy professors] be subject to the same rigorous morality standards as apply to ordained ministers.124 The Ordinances further require that church ministers must appoint the doctors and teachers to the academy.125 So under Calvin’s plan the government funds the academy, but the church determines who teach and lead it.126 W. Fred Graham chronicled the social-economic history of Calvin’s life and legacy. Graham notes that the academy was established at an enormous expense to the city’s government. 127 Sometimes the government could pay only the interest on the academy’s building loans.128 Calvin believes that Christian government is obliged to subsidize education and make it affordable even to sojourners and the poor.129 The academy was supported only nominally by tuition from those who could afford it, but 120

GEORGIA HARKNESS, JOHN CALVIN: THE MAN AND HIS ETHICS 53 (1931). Calvin, supra note 94. 122 Id. at 62–63. 123 ROCKNE MCCARTHY, ET AL., SOCIETY, STATE AND SCHOOLS: CASE FOR STRUCTURAL AND CONFESSIONAL PLURALISM 44 (1981). 124 Calvin, supra note 94, at 63. 125 Calvin, supra note 94, at 62–63; W. FRED GRAHAM, THE CONSTRUCTIVE REVOLUTIONARY: JOHN CALVIN AND HIS SOCIO-ECONOMIC IMPACT 149 (1952); see also MICHAEL S. HORTON, WHERE IN THE WORLD IS THE CHURCH?: A CHRISTIAN VIEW OF CULTURE AND YOUR ROLE IN IT 29 (1995). 126 Calvin, supra note 94, at 62–63; GRAHAM, supra note 125, at 145–51. 127 GRAHAM, supra note 125, at 149; See also HORTON, supra note 125, at 29 (1995). 128 GRAHAM, supra note 125, at 151. 129 Id. at 146, 151. 121

there were actually three main sources of revenue for the academy. (1) Private endowments and bequests were donated, which the church promoted and preached to encourage. 130 (2) Public funding from fines for unfair business practices and other such infractions were used to subsidize the academy. 131 (3) Finally by confiscating and selling the property and goods of those convicted of heresy who had either fled the city or been decapitated, the government generated even more revenue for the academy.132 The punishment of heretics convicted by the civil government stands as a harsh reminder of the brutality of ideological conflict in sixteenth century Europe.133 For this reason, churches must adapt the Reformation’s educational priorities to apply them to a pluralistic society, such as America today. Kennedy and Newcombe write that Calvin believed that education should begin “with God’s first book, the Scriptures. And then, realizing that all truth comes from God, Calvin saw that we should also study the truth that is revealed in God’s second book, nature.”134 Calvin believes that “the Spirit of God” reveals truth about nature to non-Christian writers, which are 130

Id. at 149. Id. 132 Id. 133 Michael Horton, Was Geneva a Theocracy?, MOD. REFORMATION MAG./ALL. OF CONFESSING EVANGELICALS (1992), http://www.the-highway.com/theocracy_ Horton.html. Michael Horton brings some historical perspective to the harsh justice of Geneva: During this same period [while Calvin led the church in Geneva], by the way, thirty-nine heretics were burned in Paris, the Inquisition was being enforced in Spain and Italy, and other parts of Europe. In spite of the fact that many sought refuge in Geneva who were less than orthodox, fleeing Catholic authorities, Servetus [who was burned at the stake in Geneva over Calvin’s objections] was the only heretic burned there during Calvin’s distinguished career. In fact, it must be noted that Jews were invited by the reformed cities to find safety from the Inquisition. The Puritan Cromwell was later to make England a safe haven for dissenters, even for those with whom he dissented, and especially for Jews. The same is true of The Netherlands and Strasbourg. It is no small wonder that when we think of human rights and international relations, these reformed (or once-reformed) capitols—Geneva, Strasbourg (home of the Int’l Institute of Human Rights, the European Parliament, and other relief and human rights agencies), Amsterdam, and London, find their way to the top of the list. Id. 134 KENNEDY & NEWCOMBE, supra note 118 at 45. 131

therefore worthy of study.135 So Calvin, much like Luther, believes in studying the best non-Christian thinkers. Kennedy and Newcombe assert that Calvin holds strongly that the Bible makes it plain that the ultimate responsibility to educate children rests with parents.136 Calvin also maintains that the church and the civil government have an interest and duty in education, “because it is necessary to raise offspring for time to come, in order not to leave the Church deserted to our children,” therefore civil and church leaders should establish a college instituted for instructing children, to prepare them for ministry as well as civil government.”137 Graham notes that the Geneva Academy had an “incalculable effect upon scholars who attended from France, Germany, the Low Countries, Scotland, and England and who went back home to immerse themselves in church reformation and political revolution.”138 In sum, Calvin’s imprint on education was widely spread because of the success of the Geneva Academy. Like Luther, Calvin stresses the importance of Bible-centered education as a high and costly priority of both church and state. 139 The purpose of education is to glorify God and to prepare godly leaders for church and civil government. Schools ought to study non-Christian writers for truth revealed to them by “the Spirit of God.” 140 While the primary responsibility for Christian education is on parents, the church has a role in disciplining and selecting the teachers and leaders of the schools. Government’s role includes funding schools and enforcing compulsory attendance. 141 The Education Legacy of John Knox: Control over the Education of the Masses Is the Most Valuable Spoil of War. Of all the men influenced by Calvin, John Knox (1505–1572) “was the most forceful and did the most important work for education,” according

135

JOHN CALVIN, INSTITUTES OF THE CHRISTIAN RELIGION 275 (John T. McNeill ed., Westminster Press 1960) (1560). 136 KENNEDY & NEWCOMBE, supra note 118, at 43. 137 Calvin, supra note 94, at 62. 138 GRAHAM, supra note 125, at 151. 139 Calvin, supra note 94, at 62. 140 CALVIN, supra note 135, at 275. 141 Calvin, supra note 94, at 62.

to Frank Pierrepont Graves.142 Knox, the great reformer of Scotland, was driven from his homeland in 1556 and took refuge from Catholic persecution in Geneva, where he was exposed to Calvin’s academy and the compulsory education laws of the reformed city council.143 Knox famously describes Calvin’s City of Geneva as “the most perfect school of Christ that ever was on earth since the days of the Apostles.”144 In 1560, Knox wrote his First Book of Discipline for a newly independent national church in Scotland. 145 The First Book of Discipline lays out plans for the comprehensive application of the gospel in every area of Scottish life, much like Calvin’s Ordinances before it.146 In this work, Knox asserts that every Scottish church should hire both a schoolmaster and a pastor.147 In a sermon giving tribute to Knox, Ian Hamilton preaches that Knox pushed for “a school in every parish, a college in every town, and a university in every city.”148 A page from history reveals that the greatest lesson Knox took from Geneva was the tactical importance of controlling education, as seen in this excerpt from an 1892 textbook by Douglas Campbell: Knox returned from Geneva fully impressed with the conviction that the education of the masses is the strongest bulwark of Protestantism and the surest foundation of a state. Under his influence schools were established generally 142

FRANK PIERREPONT GRAVES, A HISTORY OF EDUCATION DURING THE MIDDLE AGES AND THE TRANSITION TO MODERN TIMES 194 (1919), https://archive.org/details/ historyofeducati00gravuoft. 143 Bd. of Ed. of the Presbyterian Church, The Historical Argument for Church Education, 3 HOME, THE SCHOOL AND THE CHURCH, OR, THE PRESBYTERIAN ED. REPOSITORY 46, 57 (C. Van Rensselaer, ed., 1850), http://archive.org/stream/ homeschoolandch01educgoog. 144 JOHN TULLOCH, LEADERS OF THE REFORMATION: LUTHER, CALVIN, LATIMER, KNOX 272 (1859), https://ia600408.us.archive.org/34/items/cu31924029249129/cu31924029249129.pdf. 145 KNOX, supra note 94, at 183–260. 146 WALTER L. LINGLE & JOHN W. KUYKENDALL, PRESBYTERIANS: THEIR HISTORY AND BELIEFS 40 (1978). 147 Id. 148 Ian Hamilton, The Old Thunderer, in”Give Me Scotland or I Die!” John Knox: Three Contemporary Scottish Preachers Assess John Knox (May 4, 2010), https://groups.google.com/forum/?fromgroups=#!topic/bbc-pastor-mailing-list/ pALjSAcCoF8.

throughout the kingdom, and they accomplished a great work. It was not, however, until after the fall of the Stuarts that the State took the matter up. Then, with a Dutch monarch on the throne, the Scotch Parliament, having regained its independence, in 1696 passed a law for the establishment of common schools in every parish, to be supported in part by the parish and in part by rate bills [tuition fees]. With such a system in operation, fostered by all the power of the clergy, one need not wonder at the universal education of this people, nor at their marvelous progress in the last two centuries. Well had it been for England and Ireland had their governments shown equal wisdom.149 Summary of the Education Legacy of the Reformation Each of these influential reformers—Luther, Calvin and Knox— shares an undaunted commitment to education of the young as an essential means to solidifying a Protestant church and civil state. Each of these reformers advocates for a form of education that is government financed and controlled by a state church with a high emphasis on the Bible. Under these historic reformers education of the young is a fundamental priority of clergy and churches. These reformers relied on state control after the displacement of Catholic rule. The education priority of the reformers must necessarily manifest much differently in churches in a pluralistic society, without the excesses of centralized established state religions as in the sixteenth century. The Reformation Legacy in the New World Samuel Blumenfeld, of Rushdoony’s Chalcedon Foundation, notes that the earliest American colonies carried with them the legacy of the Protestant Reformation including the same emphasis on Bible-based

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DOUGLAS CAMPBELL, THE PURITAN IN HOLLAND, ENGLAND, AND AMERICA: AN INTRODUCTION TO AMERICAN HISTORY 19 n.† (1892), https://ia802707.us.archive.org/ 21/items/puritaninhollan01campuoft/puritaninhollan01campuoft.pdf.

education.150 Blumenfeld writes that from the colonial times until the 1840s American education was dominated by a Calvinist worldview: “God’s omnipotent sovereignty was the central reality of man’s existence, and man’s fallen, sinful nature was acknowledged as the cause of evil and unhappiness.”151 Titus and other followers of Rushdoony may argue that the reformers had their exegesis wrong about the biblical role of government in education, but they must acknowledge that the government subsidized, compulsory education policy of the reformers were a necessary prerequisite to the Christian moral and legal consensus of United States’ founding era, as Blumenfeld notes: The modern idea of popular education—that is, education for everyone—first arose in Europe during the Protestant Reformation when papal authority was replaced by biblical authority. Since the Protestant rebellion against Rome had arisen in part as a result of biblical study and interpretation, it became obvious to Protestant leaders that if the reform movement were to survive and flourish, widespread biblical literacy, at all levels of society, would be absolutely necessary.152 Nevertheless, Blumenfeld characterizes America’s founding era as a time when education operated as a laissez-faire ideal. It is therefore not surprising that the United States Constitution made no mention of education in its provisions. Its framers left education up to the parents, communities, churches, educator proprietors of schools, and the individual states. There were some statesmen, like Thomas Jefferson and John Adams, who did advocate free, state supported education on a rather modest scale. But they were clearly in 150

SAMUEL L. BLUMENFELD, IS PUBLIC EDUCATION NECESSARY? 10–26 (2d ed. 1985); SAMUEL BLUMENFELD, NEA: TROJAN HORSE IN AMERICAN EDUCATION 1–18 (Electronic ed., Archive.org 2014) (1984), https://archive.org/details/pdfy-GDl-3b5IqoDs6Udr. 151 Samuel Blumenfeld, Why True Reform of American Public Education Is Impossible, THE NEW AMERICAN (June 12, 2011), http://www.thenewamerican.com/reviews/opinion/ item/10800-why-true-reform-of-american-public-education-is-impossible. 152 BLUMENFELD, IS PUBLIC EDUCATION NECESSARY?, supra note 150, at 10.

the minority. Thus, at the beginning of the American nation, education, except for some tax-supported common schools in New England, was on a completely laissez-faire basis. 153 Blumenfeld is correct in noting the national government under the Constitution has no jurisdiction over education. However, state and community governments legislated educational mandates and subsidized private education, as Blumenfeld acknowledges.154 Ronald Nash notes that is was not until the 1840s that “Massachusetts became the first state to abandon state support for private schools.”155 The president of Hillsdale College, Larry Arnn, agrees that the drafters of the Constitution intended to leave the administration of schools at the local and state level, but he notes that the greatest endowment by the federal government to public schools was given by the founders: “It was a massive gift, a gift unprecedented and still unsurpassed. It is a gift not only of vast material meaning, but also a gift of priority.”156 Here, Arnn is referring to the Land Ordinance of 1785 which carved up the Northwest Territories into townships for private ownership, but it reserved 1/36th of every township “for the maintenance of public schools.”157 This endowment was later explained by the Northwest Ordinance, which Arnn describes as “The authoritative statement regarding education from the period of the American founding.”158 The Northwest Ordinance was first passed in 1787 under the Articles of Confederation, the same summer that the Constitution was being written.159 The Northwest Ordinance was later reiterated in 1789 by the first United States Congress and signed into law by President Washington under the new Constitution.160 The Northwest Ordinance explains the purpose and justifies the public school endowment of the Land 153

Id. at 21. Id. 155 RONALD NASH, THE CLOSING OF THE AMERICAN HEART: WHAT’S REALLY WRONG WITH AMERICA’S SCHOOLS 115 (1990). 156 LARRY ARNN, LIBERTY AND LEARNING: THE EVOLUTION OF AMERICAN EDUCATION 3 (2004). 157 Id. 158 Id. at 2. 159 Larry Arnn, Bureaucratic vs. Constitutional Government, Lecture at Hillsdale College (2011), in INTRODUCTION TO THE CONST. LECTURE SERIES 38 (Dale Pretila ed., 2012), http://www.evangelasian.org/files/Intro_Constitution_Hillsdale_College_FINAL.pdf. 160 Larry P. Arnn, A Rebirth of Liberty and Learning, IMPRIMIS MAG. (Dec. 2013), http://imprimis.hillsdale.edu/file/archives/pdf/2013_12_Imprimis.pdf. 154

Ordinance: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall ever be encouraged.”161 Arnn elaborates on the significance of the language: Religion, morality and knowledge are therefore essential for the highest reasons, reasons that transcend politics—that is “happiness” is mentioned. But “good government” is mentioned, too. Both from the political point of view and from the higher point of view—both from the perspective of this world and the next—”religion, morality, and knowledge” are indispensable. Schools, furthermore, are means in service of “religion, morality and knowledge,” and therefore means also to “good government and the happiness of mankind.” They are singled out here, the only means mentioned, although of course not the only ones existing. The mention of schools and the failure to mention such things as families (which the Founders also saw as vital), indicates the priority given to education and also that it is a matter of special public interest.162 Arnn asserts that for the founders to consider schools “to be useful to good government and the happiness of mankind, they must be conducive to ‘religion, morality and knowledge.’”163 “By deed as much as by word, by example as much as by precept, they testify to the importance of education,” Arnn writes, “Moreover they support it by a gift so magnificent as to be beyond our power to emulate.”164 Even if Blumenfeld were correct in describing colonial American education as an era of laissez-faire freedom with a Christian worldview, it 161

An Ordinance for the Gov’t of the Terr. of the U.S. N.W. of the River Ohio, art. III (Electronic ed., OurDocuments.gov) (1787) (hereinafter The Northwest Ordinance), http://www.ourdocuments.gov/doc.php?doc=8&page=transcript (last visited Jan. 9, 2016). 162 ARNN, supra note 156, at 2–3. 163 Id. at 5. 164 Id.

was subsidized by local governments which shared a common belief: education ought to impart the essential religion, morality, and knowledge that is necessary to good government and the happiness of mankind.165 Furthermore, this era of laissez-faire freedom was only made possible on the cultural foundation created by educational movements of the European Reformers, who held that the Bible grants government a stake in and role to play in education. Stephen McDowell and Mark Beliles call this legacy the “Chain of Liberty”: The Christians of Colonial America also saw it as their responsibility to educate the general public. The Great Commission of Matthew 28:19–20 to “disciple the nations” was to be accomplished by “teaching them to observe all things that I have commanded you” (NKJ). The Chain of Liberty shows that education always accompanies the spread of the Gospel. The Lollards are an excellent example. They educated the common people in order that they could read the Scriptures for themselves. Education of the common man also followed the preaching of Luther, Tyndale, Calvin, and other Reformation preachers. The desire to educate every individual accompanied the Pilgrims, Puritans, Quakers, and most other settlers who came to America.166 French sociologist Alexis de Tocqueville attested to the religious culture of publicly subsidized education in 1831 when the visited the United States to study the workings of the thriving young republic. Tocqueville notes that in America, “almost all education is entrusted to the clergy.”167 Today, almost all education is entrusted to professional educators operating under mandates issued by federal courts requiring secularization. 168 Most 165

Id. at 2. Stephen K. McDowell & Mark A. Beliles, Christian Education: The System for any Country that Wants to be Free, THE FORERUNNER (Apr. 22, 2008), http://www. forerunner.com/mandate/X0057_Christian_Education.html. 167 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 366 n.6 (Bruce Frohnen ed., Henry Reeve, trans., Regnery Publ’g 2002) (1856). 168 Everson v. Bd. of Ed. of Ewing Township, 330 U.S. 1 (1947) (The Court announces its novel legal doctrine of Separation of Church and State which would be used to secularize public schools in all of the states and overrule local policies of state legislatures and school boards); Engel v. Vitale, 370 U.S. 421 (1962) (Court prohibits nondenominational school prayers for voluntary student recitation in public schools); Abington School District v. Schempp, 374 U.S. 203 (1963) (The Court prohibits school166

American clergy and churches no longer regard education of the young as part of their job description or institutional calling.169 The American Founders Insisted on the Bible in Education Like the Protestant reformers, the founders of America used the Bible in their schools, as noted by Thomas Hunt and Monalisa Mullins of the University of Dayton. They state that moral education in the schools of the newly established United States relied most heavily on the Bible, and secondly on McGuffey’s Readers.170 McGuffey drew more copiously from the Bible than any other source, and he explains why. He writes that “in a Christian country” it should never be objectionable to imbue “the minds of youth with the language and spirit of the Word of God.”171 Noah Webster is also identified by Hunt and Mullins as a leading educational influence of the constitutional era.172 Webster has been identified as the “Schoolmaster to America.”173 Webster states his education priority, “In my view, the Christian religion is the most important and one of the first things in which all children, under a free government ought to be instructed.”174 Finally, Benjamin Rush is identified by Hunt and Mullins as a prominent educational influence and spokesman for “the role of education sponsored voluntary Bible reading for devotional purposes in public schools); Wallace v. Jaffree, 472 U.S. 38 (1985) (The Court prohibits public schools from setting aside a moment of silence for “meditation or voluntary prayer”); Stone v. Graham, 449 U.S. 39 (1980) (The Court prohibits displays of the Ten Commandments in public school classrooms); Lee v. Weisman, 505 U.S. 577 (1992) (The Courts holds that a clergymen leading non-sectarian prayers at a public school graduation is prohibited); Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (The Court prohibits student-led, student-initiated prayer at a public school football game). 169 Smithwick, supra note 4 (reporting 85% of Christian families send their children to secularized public schools). 170 Thomas Hunt & Monalisa Mullins, Introduction to MORAL EDUCATION: A HANDBOOK, at iv (F. Clark Power et al. eds., 2008). 171 WM H. MCGUFFEY, ECLECTIC FOURTH READER 3 (rev. ed. 1853), https://ia600408. us.archive.org/34/items/mcguffeysnewlyre00mcgu/mcguffeysnewlyre00mcgu.pdf. 172 Hunt & Mullins, supra note 170, at xviii. 173 Id. 174 Letter from Noah Webster to David McClure (October 25, 1836), in LETTERS OF NOAH WEBSTER 453, 453 (Harry Warfel ed., 1953); Hunt & Mullins, supra note 170, at xviii.

in securing the virtues for the survival of the republic.”175 Rush favored a unified system of free education for his state of Pennsylvania, which could serve as a model for other states in the new republic.176 In an essay entitled, “A Defense of the Use of the Bible as a School Book,” Rush asserts his belief that “the only means of establishing and perpetuating our republican form of government” is “the universal education of our youth in the principles of Christianity by means of the Bible.”177 Rush signed of the Declaration of Independence, published the first American textbook on chemistry, and served in the administrations of Adams, Jefferson and Monroe. 178 His belief that the Bible should be at the core of American education was uncontested among the founders.179 However, a controversy did arise over the extent to which other textbooks (replete with Bible quotations) might be used with the Bible. Fisher Ames, who is regarded as the founder most responsible for the final wording of the First Amendment, weighed in on the controversy.180 Ames writes: It has been the custom, of late years, to put a number of little books into the hands of hands of children, containing fables and moral lessons . . . . Many books for children are, however, injudiciously compiled . . . the moral is drawn from the fable, they know not why; and when they gain wisdom from experience, they will see the restrictions and exceptions which are necessary to the rule of conduct laid down in these books, but which such books do not give. . . . ....

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Hunt & Mullins, supra note 170. ROCKNE M. MCCARTHY ET AL., DISESTABLISHMENT A SECOND TIME: GENUINE PLURALISM FOR AMERICAN SCHOOLS 45 (1983). 177 BENJAMIN RUSH, A Defense of the Use of the Bible as a School Book, in ESSAYS LITERARY, MORAL AND PHILOSOPHICAL 93–113 (1806), https://ia902305.us.archive.org/ 35/items/essaysliterarymo00inrush/essaysliterarymo00inrush.pdf. 178 Dr. Benjamin Rush, FRIENDS OF THE AMERICAN REVOLUTION, https://21stcenturycicero.wordpress.com/faith/the-faith-of-our-fathers/dr-benjamin-rush/ (last visited Jan. 9, 2016). 179 KENNEDY & NEWCOMB, supra note 118, at 46–53. 180 Fisher Ames on Public Education, AMERICAN POLICY ROUNDTABLE, https://www.aproundtable.org/tps2.cfm?ID=940&issuecode=history (last visited Jan. 9, 2016). 176

Why then, if these books must be retained, as they will be, should not the Bible regain the place it once held as a school book? Its morals are pure, its examples are captivating and noble. The reverence for the sacred book, that is thus early impressed, lasts long . . . .181 These public statements of the founders who most influenced education in the new nation do not manifest any concern that studying Christianity or reading the Bible in publicly subsidized schools would in any way violate a prohibition of Christ on the jurisdiction of government (i.e. the Titus Doctrine). Neither are they concerned that Bible study in school would violate the First Amendment’s prohibition on Congress not to establish a national religion. Education historians Jack Seymour, Robert T. O’Gorman, and Charles R. Foster observe that for the first one hundred and fifty years of the republic, the church, particularly the Protestant church, “had a central role in the definition of the understanding of the nation and its life and mores.”182 This was so much the case, they say, “that the public schools functioned as Protestant parochial schools well into the twentieth century.”183 A New Philosophy for Public Schools in the Twentieth Century American education reformers of the twentieth century, such as John Dewey (1859 –1952) and C. F. Potter (18851962), believed much like the Protestant reformers that impacting the education of the masses was fundamental to transforming society.184 John Dewey “was without a doubt the most eminent philosopher of American education in the first half of the twentieth century,” according to Hunt and Mullins. A recent detractor of Dewey, Henry Edmondson, acknowledges him as a “towering figure” whose prestige in American education “has long superseded that of the

181

2 FISHER AMES, School Books, in WORKS OF FISHER AMES 405–06 (Seth Ames ed., Little, Brown & Co. 1854) (1809). 182 JACK L. SEYMOUR, ROBERT T. O’GORMAN, & CHARLES R. FOSTER, THE CHURCH IN THE EDUCATION OF THE PUBLIC: REFOCUSING THE TASK OF RELIGIOUS EDUCATION 26 (1984). 183 Id. at 26–27. 184 BLUMENFELD, NEA: TROJAN HORSE IN AMERICAN EDUCATION, supra note 150, at 53– 55.

founders.”185 As a psychologist and educator Dewey exerted great influence over public education by controlling higher education and teacher training from the 1890s to the 1940s, as noted by Blumenfeld.186 Dewey was a founding member of both the National Education Association (NEA) and the American Civil Liberties Union (ACLU).187 He was a signer of the first Humanist Manifesto, which expressly denies the existence of God.188 Dewey affirms that “education is the fundamental method of social progress and reform.”189 Dewey celebrated the philosophical implications of evolution. He states, “[T]he ‘Origin of Species’ introduced a mode of thinking that in the end was bound to transform the logic of knowledge, and hence the treatment of morals, politics, and religion.”190 Dewey exulted that the conceptions of nature and knowledge that had reigned “for two thousand years” were undone by Darwin.191 Writing for Philosophy Now, Tim Madigan identifies Dewey as “one of the first philosophers to take Darwin seriously.”192 Madigan notes that unlike the many philosophers, Dewey “did not evade the implications of evolution.”193 Madigan observes,

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HENRY T. EDMONDSON III, JOHN DEWEY AND THE DECLINE OF AMERICAN EDUCATION: HOW THE PATRON SAINT OF SCHOOLS HAS CORRUPTED TEACHING AND LEARNING 2 (2006). 186 BLUMENFELD, NEA: TROJAN HORSE IN AMERICAN EDUCATION, supra note 150, at 53– 55. 187 Who is John Dewey? Meet America’s Greatest Philosopher, CTR. FOR INQUIRY, (Oct. 20, 2009). http://www.centerforinquiry.net/blogs/entry/who_is_john_dewey_meet_americas_greates t_philosopher/. 188 Humanist Manifesto, THE AM. HUMANIST ASS’N, http://americanhumanist.org/ Humanism/Humanist_Manifesto (last visited Feb. 28, 2015). 189 JOHN DEWEY, My Pedagogic Creed, in THE EARLY WORKS OF JOHN DEWEY (1882– 1898) 84, 93 (Jo Ann Boydston & Fredson Boweres eds., S. Ill. Univ. Press 1972). 190 JOHN DEWEY, The Influence of Darwin on Philosophy, in THE INFLUENCE OF DARWIN ON PHILOSOPHY AND OTHER ESSAYS IN CONTEMPORARY THOUGHT 5, 5 (Larry A. Hickman ed., S. Ill. Univ. Press 2007) (1910). 191 Id. at 6. 192 Tim Madigan, Dewey and Darwin, in PHILOSOPHY NOW (Jan./Feb. 2009), http://philosophynow.org/issues/71/Dewey_and_Darwin. 193 Id.

Also like Darwin, albeit more explicitly, Dewey was critical of organized religions, especially of the ways in which they seek a timeless, perfect reality beyond. He was interested in the here and now, not the hereafter. . . . Dewey made it clear that Darwin’s writings marked a pivotal change in how philosophy can and should be conducted.194 Madigan writes, “Dewey was a philosopher of change, who consistently sought to apply Darwin’s evolutionary theories to all areas of philosophy.”195 Paul Vitz notes, “Dewey himself was strongly hostile to traditional religion with its belief in transcendent reality and in revelation. For Dewey, of course, traditional religion primarily meant Christianity.”196 In 1983, Vitz systematically examined ninety widely used public school textbooks. Vitz concludes that “Dewey’s position is ubiquitous” in American schools.197 Thus, Dewey’s reforms were to establish a form of education that would be government funded and government controlled, with a strong worldview emphasis; however, after Dewey the worldview of public schools was to be humanist, displacing the Bible based education advocated by the founders. As far back as 1930, Charles Francis Potter, a close associate of Dewey and co-signer of The Humanist Manifesto, expressly articulates his religious agenda for public schools. In his book, Humanism: a New Religion, Potter states it boldly: Education is thus a most powerful ally of Humanism, and every American public school is a school of Humanism. What can a theistic Sunday school’s meeting, for an hour once a week, and teaching only a fraction of the children, do to stem the tide of the five day program of humanistic teaching?198 194

Id. Id. 196 PAUL C. VITZ, CENSORSHIP: EVIDENCE OF BIAS IN OUR CHILDREN’S TEXTBOOKS 86 (1986). 197 Id. 198 CHARLES F. POTTER, HUMANISM: A NEW RELIGION 128 (1930). See also Richard Stringer-Hye, Charles Francis Potter, DICTIONARY OF UNITARIAN & UNIVERSALIST BIOGRAPHY (May 17, 2001), http://uudb.org/articles/charlesfrancispotter.html. Potter became an honorary president of the National Education Association (NEA). Potter 195

Evolution in Religion and Philosophy Retired Berkeley law professor and founder of the “Intelligent Design” movement, Phillip Johnson also recognized the religious and philosophical implications of evolution as it is defined and taught in schools today.199 He states: In the science education culture, “evolution” means a purposeless material mechanism. . . They mean something that has no purpose and that excludes the Creator by definition. . . . .[T]he people who really control science education … know that in fact at a deeper level evolution, as they mean to teach it to everybody’s children, is not compatible with theism in any meaningful form. . . . People shouldn’t let themselves be deceived about this point, because it’s basic and the propaganda attempts to deceive people. . . . God is outside of reality in the naturalistic framework.200 The notion that God is outside of reality leads to a dualistic mode of thinking that typifies the modern Western mind, according to worldview writer Nancy Pearcey. In her book Total Truth, Pearcey identified a philosophical compartmentalization of religious affairs apart from secular affairs, which she calls the secular/sacred dichotomy.201 Dewey lauded this dichotomy: he writes, “The very conquest of the biological sciences by the new ideas [of the Darwinian mode of thinking] has led many to proclaim an explicit and rigid separation of philosophy from science.”202 However, Pearcey gives pragmatic reasons why she thinks Christians should reject the secular/sacred dichotomy: We have to reject the division of life into a sacred realm, limited to things like worship and personal morality, over formed the Euthanasia Society of America in 1938. A committed evolutionist, Potter served as an expert witness for Clarence Darrow at the Scopes Monkey Trial of 1925. Id. 199 Phillip Johnson, Focus on Origins, UNIV. OF CAL. (2006), http://www.uctv.tv/libraryhuman.asp?series=show&summary=show&seriesID=Focus_on_Origins&sort=. 200 Id. 201 NANCY PEARCEY, TOTAL TRUTH: LIBERATING CHRISTIANITY FROM ITS CULTURAL CAPTIVITY 69 (2004). 202 DEWEY, supra note 190, at 19.

against a secular realm that includes science, politics, economics, and the rest of the public arena. This dichotomy in our own minds is the greatest barrier to liberating the power of the gospel across the whole of culture today. . . . Religion is not considered an objective truth to which we submit, but only a matter of personal taste which we choose. Because of this, the dichotomy is sometimes called the fact/value split. 203 Pearcey elaborates: The reason it’s so important for us to learn how to recognize this division is that it is the single most potent weapon for delegitimizing the biblical perspective in the public square today. Here’s how it works: Most secularists are too politically savvy to attack religion directly or to debunk it as false. So what do they do? They consign religion to the value sphere—which takes it out of the realm of true and false altogether. Secularists can then assure us that of course they “respect” religion, while at the same time denying that it has any relevance to the public realm.204 Pearcey asserts, “The secular/sacred dichotomy is an anomaly—a distinctive of Western culture alone.”205 However, Anglican Bishop N. T. Wright traces its roots to a time before the Western Enlightenment. He says, “The Enlightenment split religion, faith and morals off from public life and thought we could run the world as though God didn’t exist.”206 Wright notes that this split with God was really just a new expression of the ancient worldview of Epicureanism, which must presuppose a godless narrative of life origins such as evolution.207 Wright states, “Epicureans held a theory

203

PEARCEY, supra note 201, at 20–21. Id. at 21. 205 Id. at 69. 206 N. T. Wright, Wisdom in a Troubled Time, N.T. WRIGHT PAGE (Sept. 30, 2008), http://ntwrightpage.com/sermons/Wisdom_Troubled_Time.htm. 207 N. T. Wright, Imagining the Kingdom: Mission and Theology in Early Christianity, N.T. WRIGHT PAGE (Oct. 26, 2011), http://ntwrightpage.com/Wright_StAndrews_ Inaugural.htm. 204

according to which the world and the gods were a long way away from one another, with little or no communication.”208 Wright observes, Once you got God out of the scene, then you of course have some sort of evolution. It’s quite extraordinary to me that people imagine now that evolution is something which 19th century science discovered. It’s simply the corollary of one particular ancient world view which some people in the 18th century rather liked, and so actually had political usefulness as well.209 “The majority of westerners today simply do not realize,” says Wright, “that they are Epicureans by default.”210 Pearcey also identifies the Enlightenment as the beginning of the secular/sacred dichotomy in the West. She writes: The direction in intellectual history since the Enlightenment has been to grant science the authority to pronounce what is real, true, objective, and rational, while relegating ethics and religion to the realm of subjective opinion and nonrational experience. Once this definition of knowledge is conceded, then any position that appears to be backed by science will ultimately triumph in the public square over any position that appears based on ethics or religion. The details of the particular debate do not matter. For, in principle, we do not enact into public policy and we do not teach in the public schools views based private opinion or tribal prejudice.211 Here Pearcey uses the word science to refer to an Epicurean philosophy of materialism, but another commonly understood definition of science is a 208

N. T. WRIGHT, ACTS FOR EVERYONE: PART 2 83 (2008). Our Worldview and Scripture with N.T. Wright, BIOLOGOS (July 10, 2013), http://biologos.org/resources/multimedia/n.t.-wright-on-our-worldview-and-scripture. 210 Wright, supra note 207. 211 Nancy Pearcey, A New Foundation for Positive Cultural Change: Science and God in the Public Square, HUMAN EVENTS (Sept. 15, 2000), http://www.arn.org/docs/pearcey/ np_hewedgereview091200.htm. 209

neutral method of studying the physical world. Johnson explains that Darwinists rely on a nebulous dual definition of science to foist their philosophical (i.e., religious) presuppositions on the public at large, he writes: On the one hand, science means a practice of impartial empirical investigation and testing. On the other hand, science means a very partisan adherence to a philosophy variously called naturalism, materialism or physicalism. Refusing to recognize that there could be a difference between these two definitions is at the very heart of the philosophy of scientific naturalism. My hypothesis was that the Darwinian theory and its accompanying definition of knowledge will collapse once the difference is recognized, with profound consequences for the life of the mind.212 Johnson believes that once a strategy is developed to permit academic criticism of Darwinism, then the worldview story of naturalism will be unpersuasive.213 This article asserts that churches ought to develop strategies to reach students enrolled in public charter school with academic arguments and evidence critical of materialistic evolution, as it is presented in public school textbooks. The Titus doctrine would inhibit such strategies, but it need not, since the Titus doctrine is supported neither by compelling biblical exegesis nor church history. Johnson believes Darwinism cannot stand up to cross-examination: he states, “This whole Darwinian story, it seems to me, has been very much oversold. . . . It is an imaginative story that has been spun on the basis of very little evidence.”214 Johnson continues, “I don’t think that story will hold water when you look for proof rather than just accept it as an inevitable, logical consequence of a naturalistic philosophy that you’re starting out with.”215 He writes, “Darwinism is a pseudoscience that will collapse once it becomes possible for critics to get a fair hearing.”216 Johnson’s view is that theistic worldview arguments do not prevail only because they are not 212

PHILLIP E. JOHNSON, THE WEDGE OF TRUTH: SPLITTING THE FOUNDATIONS OF NATURALISM 145–46 (2000). 213 Id. at 141. 214 Interview by Joe McMaster with Phillip E. Johnson (Apr. 7, 2007). 215 Id. 216 JOHNSON, supra note 212, at 141.

permitted to be presented.217 So Johnson promotes arguments for Intelligent Design, which can be supported by scientific investigation, that is, impartial empirical investigation. If Johnson is correct that Intelligent Design arguments will prevail when given a fair hearing then charter schools could possibly offer enough flexibility to parents and churches to convey a biblical worldview to groups of students who also study science as presented in public school textbooks. However, the Titus Doctrine militates against such an arrangement without regard to its possible worldview outcomes. Pearcey advocates rejecting the secular/sacred dichotomy, but such a rejection has proved difficult when most modern forms of education available to Christian families today both reflect and perpetuate this dichotomy.218 Nevertheless, Pearcey attributes the failure of Christians to adopt a biblical worldview to the restrictions of this Western dichotomy: Not only have we “lost the culture,” but we continue losing even our own children. It’s a familiar but tragic story that devout young people, raised in Christian homes, head off to college and abandon their faith. Why is this pattern so common? Largely because young believers have not been taught how to develop a Biblical worldview. Instead, Christianity has been restricted to a specialized area of religious belief and personal devotion.219 While Pearcey identifies college as the time of student departure from church, she notes that the failure to teach and develop a biblical worldview occurs before college. 220 To control education during the critical precollage ages, Darwinists turn to the courts to overrule popular sentiment and silence their opposition. The Pew Research Center published a report on religion in the public schools in 2007. The report states: Federal courts, the civil libertarians point out, have consistently interpreted the First Amendment’s prohibition on the establishment of religion to forbid state sponsorship of prayer and most other religious activities in public schools. 217

Id. PEARCEY, supra note 201, at 19. 219 Id. 220 Id. 218

Despite that long series of court decisions, polls show that large numbers of Americans favor looser, not tighter, limits on religion in public schools. According to an August 2006 survey by the Pew Research Center, more than two-thirds of Americans (69%) agree with the notion that â&#x20AC;&#x153;liberals have gone too far in trying to keep religion out of the schools and the government.â&#x20AC;? And a clear majority (58%) favor teaching biblical creationism along with evolution in public schools.221 The Pew research indicates that if churches were to offer scientific arguments critical of purely materialistic Darwinism, many families would be sympathetic to permitting their children to have the benefit of hearing both sides of debate. Scientific data can be interpreted though both the Epicurean worldview of Darwinism and the Theistic worldview of Intelligent Design, but it cannot be neutrally interpreted by either. While a clear majority of Americans favor letting public school kids hear both, according to the Pew research (58%),222 the federal courts have been siding with the minority (42%).223 Johnson regards the intolerant and coercive methods of Darwinists as further evidence of the weakness of their position: It is the way the Darwinists argue their case that makes it apparent that they are afraid to encounter the best arguments against their theory. A real science does not employ propaganda and legal barriers to prevent relevant questions from being asked, nor does it rely on enforcing rules of reasoning that allow no alternative to the official story. If the Darwinists had a good case to make, they would welcome the critics to an academic forum for open debate, and they would want to confront the best critical arguments rather than to caricature them as straw men. Instead they have

221

The Religion in the Public Schools, THE PEW FORUM ON RELIGION & PUBLIC LIFE 1 (May 2007), http://www.pewforum.org/files/2007/05/religion-public-schools.pdf. 222 Id. 223 Edwards v. Aguillard, 482 U.S. 578 (1987) (the Court prohibits public schools from teaching creation science, along with evolution).

chosen to rely on the dishonorable methods of power politics.224 According to Johnson, modern naturalism has emerged as the dominant philosophical orthodoxy in the West, which provides the “philosophical basis for law making and public education.”225 Johnson explains that this was not always the case: “For much of Western history, lawmakers assumed the authoritative moral guidance was available to them in the Bible and in the religious traditions based on the Bible.”226 Johnson states, “During the second half of the twentieth century, the United States’ established religious philosophy changed drastically from what it had been previously.”227 He argues that over this time period materialism replaced theism as the de facto established religious philosophy of American courtrooms and classrooms.228 Epicureanism Gains Dominance in the Courtroom and the Classroom. “Following the publication of Origin of Species, Darwinism began exerting its influence in virtually all major areas of life—science, education, business, religion, and, most importantly for the purposes of this article, the law.”229 So writes Bill Graves in an article which posits that Darwinism precipitated a worldview shift in the opinions of the Supreme Court of the United States (SCOTUS).230 Graves identifies specific SCOTUS opinions which directed the national orthodoxy of the courtroom and the classroom from a biblical worldview to a materialistic (i.e. Epicurean) worldview. As late as 1892, SCOTUS unanimously acknowledged the essential Christian underpinnings of American law when it expressly recognized that “this is a Christian

224

JOHNSON, supra note 212, at 141. PHILLIP E. JOHNSON, REASON IN THE BALANCE: THE CASE AGAINST NATURALISM IN SCIENCE, LAW & EDUCATION 36 (1998). 226 Id. at 39. 227 Id. at 36. 228 Id. at 35–37. 229 William D. Graves, Evolution, the Supreme Court, and the Destruction of Constitutional Jurisprudence, 13 REGENT U. L. REV. 513, 515 (2001). 230 Id. at 513. 225

nation,” Church of the Holy Trinity v. United States (1892).231 In that case, SCOTUS rejected the application of a federal immigration law against a church, which had hired and sponsored the immigration of a pastor from England. SCOTUS took ten years to carefully research and write this unanimous opinion (in sharp contrast to the fast turnaround of SCOTUS cases today).232 In Holy Trinity, SCOTUS applied principles of America’s Common Law heritage and held that “no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people.”233 Common Law refers to the system of jurisprudence that developed over centuries in England. Common Law laid the legal foundation for the original the thirteen colonies and was preserved in the American Revolution.234 Justice Joseph Story reported watching John Adams as Vice President address the United States Senate and declare that had he “ever imagined that the Common Law had not by the Revolution become the law of the United States under its new government, he never would have drawn his sword in the contest.”235 After surveying ancient and modern legal systems, Adams endorsed “the common law of England,” as the “most excellent monument of human art,” because it most “skillfully and successfully” addresses the “indefeasible rights of men, the honor and dignity of human nature, the grandeur and glory of the public, and the universal happiness of individuals.”236 In Holy Trinity, Justice Brewer quoted extensively from historical sources including state Common Law cases to show that American 231

Holy Trinity Church v. United States, 143 U.S. 457, 470–71 (1892). Speaking unanimously and affirmatively quoting the Supreme Court of Pennsylvania, SCOTUS states “‘Christianity, general Christianity, is, and always has been, a part of the common law . . . not Christianity with an established church . . . but Christianity with liberty of conscience to all men.’. . . . [T]his is a Christian nation.” See also Swift v. Tyson, 41 U.S. (16 Pet.) 1(1842) overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). 232 D. JAMES KENNEDY, WHAT IF THE BIBLE HAD NEVER BEEN WRITTEN? 98 (1998). 233 Holy Trinity, 143 U.S. at 465. 234 For an extensive exposition of Common Law see BRENT ALLEN WINTERS, EXCELLENCE OF THE COMMON LAW: COMPARED AND CONTRASTED WITH CIVIL LAW IN LIGHT OF HISTORY, NATURE AND SCRIPTURE (2006). 235 JAMES MCCLELLAN, JOSEPH STORY AND THE AMERICAN CONSTITUTION 177 (1971). 236 JOHN ADAMS, LIFE AND WORKS 440 (1851).

jurisprudence rested on a biblical foundation. Quoting affirmatively from the Supreme Court of Pennsylvania, Justice Brewer writes: [I]n Updegraph v. Com., 11 Serg. & R. 394, 400, it was decided that, “Christianity, general Christianity, is, and always has been, a part of the common law . . . not Christianity with an established church . . . but Christianity with liberty of conscience to all men.” . . . If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. . . . that this is a Christian nation.237 The reasoning of Holy Trinity was not at variance with prior American jurisprudence and Sir William Blackstone’s Commentaries on the Laws of England. 238 Noted historian Daniel Boorstin writes: “In the first 237

Holy Trinity Church v. United States, 143 U.S. 457, 471 (1892). SCOTUS quoting affirmatively from the Supreme Court of Pennsylvania. Likewise, affirming its common law reasoning Justice Brewer quotes a state blasphemy case: And in People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor Kent, the great commentator on American law, speaking as chief justice of the supreme court of New York, said: ‘The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. . . . The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors. Id. at 470–71. 238 Graves, supra note 229 at 524 n.62. See also 1 JAMES WILSON, Lectures on Law, in WORKS OF WILSON 3, 104–05 (Bird Wilson ed., The Lawbook Exchange Ltd. 2005) (1804). In his Lectures on Law, delivered at the College of Philadelphia, Justice Wilson writes,

That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. . . . As promulgated by reason and the moral sense it has been called natural; as promulgated by the holy scriptures, it has been called revealed law. As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has been denominated the law of nations. But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source; it is the law of God. . . . Human law must rest its authority, ultimately, upon the authority of that law, which is divine. Id. See also JOHN EIDSMOE, CHRISTIANITY AND THE CONSTITUTION: THE FAITH OF OUR FOUNDING FATHERS 44–45 (1987). Eidsmoe notes that “Justice James Wilson was one of the original United States Supreme Court Justices appointed by President Washington. He was one of only six Founding Fathers who held the distinction of signing both the Declaration of Independence and the Constitution.” Id. See also NORMAN COUSINS, IN GOD WE TRUST—THE RELIGIOUS BELIEFS AND IDEAS OF THE AMERICAN FOUNDING FATHERS 365–73 (1958), quoting a letter from Jay John to John Murry, April 15, 1818: The law [given to Moses by the Almighty] was inexorable, and by requiring perfect obedience, under a penalty so inevitable and dreadful, operated as a schoolmaster to bring us to Christ for mercy. Legal punishments are adjusted and inflicted by the law and magistrate, and not by unauthorized individuals. These and all other positive laws or ordinances established by Divine direction, must of necessity be consistent with the moral law. It certainly was not the design of the law or ordinance in question, to encourage a spirit of personal or private revenge. On the contrary, there are express injunctions in the law of Moses which inculcate a very different spirit. See also EIDSMOE, supra at 172–74. Eidsmoe notes John Jay was the first Chief Justice of the Supreme Court. He, like Justice Wilson, was appointed by President Washington and confirmed by the first Senate. See also ROBERT KENNETH FAULKNER, THE JURISPRUDENCE OF JOHN MARSHALL 139 (1968). Faulkner quotes Justice Marshal who writes: No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. . . . The American population is entirely Christian, and with us, Christianity and religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and express relations with it. See also, KENNEDY, supra note 232 at 99. Kennedy notes that Chief Justice John Marshall had been a captain in the Revolutionary War and had served with General

century of American independence, the Commentaries were not merely an approach to the study of the law; for most lawyers they constituted all there was of the law.”239 Likewise, John Eidsmoe explains the significance of Blackstone’s Commentaries: Throughout the latter half of the 1700s and the first half of the 1800s Blackstone’s popularity in America was uneclipsed. It is said that more copies of Blackstone’s Commentaries were sold in America than in England, that his Commentaries were in the offices of every lawyer in the land, that candidates for the bar were routinely examined on Blackstone, that he was cited authoritatively in the courts, and that a quotation from Blackstone settled many a legal argument. 240 In his Commentaries, Blackstone explains that the Common Law rested on a theistic foundation based on two immutable sources: the Law of Nature and the Revealed Law. Blackstone provides historic Common Law definitions for both sources: This will of his Maker is called the law of nature. For as God . . . when he created man . . . laid down certain immutable laws of human nature . . . and gave him also the faculty of reason to discover the purport to those laws . . . . .... This law of nature, being coeval with mankind and dictated by God Himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this . . . . . . . . The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy George Washington during the freezing winter at Valley Forge in 1777–1778. Prior to the Civil War, he was unquestionably the most influential Justice to sit on SCOTUS. 239 JOHN WHITEHEAD, THE SECOND AMERICAN REVOLUTION 201 (1982), citing D. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 3 (1958). 240 EIDSMOE, supra note 238, 57–58 (1987).

Scriptures. These precepts, when revealed are found upon comparison to be really a part of the original law of nature as they tend in all their consequences to man’s felicity. . . . Yet undoubtedly the revealed laws is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is law of nature, expressly declared so to be by God Himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then they can never be put in any competition together. Upon these two foundations the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.241 Graves demonstrates that the most noteworthy expositors of the Common Law concurred with Blackstone’s reasoning of relying on the Law of Nature (given by God to all people) and the Revealed Law (given by God in the Bible) as the necessary restraint on human law makers and judges and the absolute source of immutable, authoritative law applicable to all nations.242 He quotes the Common Law sages such as Lord Bracton, Lord Coke, John Locke, Justice Joseph Story and Chancellor Kent. For example, 241

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *39–42. See also, G. AMOS, DEFENDING THE DECLARATION: HOW THE BIBLE AND CHRISTIANITY INFLUENCED THE WRITING OF THE DECLARATION OF INDEPENDENCE 43 (1989). Quoting English Common Law, Jurist Lord Coke writes: The law of nature is that which God at . . . creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna, the moral law, called also the law of nature . . . written with the finger of God in the heart of man . . . before the law was written by Moses. Id. Amos explains, Coke then makes reference to Paul’s Epistle to the Romans as evidence of the moral law being written on men’s hearts. Concerning moral law, the Apostle Paul states, ‘For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law, unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another . . . .’ Romans 2:14–15 (King James). This moral law came ‘before any judicial or municipal laws.’ Id. 242

John Locke, citing Richard Hooker, writes that human laws “must be according to the general laws of nature, and without contradiction to any positive law of Scripture, otherwise they are ill made.”243 Likewise, Justice Joseph Story in a speech delivered at Harvard Law School in 1829 affirmed, “There never has been a period of history, in which the Common Law did not recognize Christianity as lying at its foundation.”244 After the fashion of Blackstone, noted American jurist, Chancellor James Kent published his Commentaries on American Law. In his Commentaries, Kent warns that without the common law as their guide, “the courts would be left to a dangerous discretion, and to roam at large in the trackless field of their own imaginations.”245 Despite the practice and intentions of the founders and the warnings of the legal sages of Common Law, American jurisprudence has departed from the most foundational principles of Common Law. It no longer aspires to ascertain the Law of Nature. It is no longer guided by the Divine Law of the Scriptures. SCOTUS changed the de facto religious philosophy of American jurisprudence in three steps: (1) Step One, SCOTUS declared the Common Law nonexistent at the federal level, overturning decades of its own rulings, Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1937): writing for a majority of SCOTUS, Justice Louis Brandeis declares: There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. 246 Four years later, Justice Jackson would express his dismay at the Brandeis dicta in the Erie case. In an opinion concurring with the majority of SCOTUS, Jackson writes: 243 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 71 n.* (C. B. Macpherson ed., Hackett Pub. Co. 1980) (1690). 244 Justice Story, Address at the Harvard Law Review Annual Banquet (1829) (transcript available in part at http://www.americanminute.com/index.php?date=09-10). 245 JAMES KENT, COMMENTARIES ON AMERICAN LAW 376 (Little, Brown & Co. 10th ed. 1860). 246 Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77 (1937), expressly reversing Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).

I do not understand Justice Brandeis’ statement in Erie R. Co. v. Thompkins . . . that “There is no federal general common law” to deny that the common law may in proper cases be an aid to or the basis of decision of federal questions. . . . The contract clause, article I, section 10, which prohibits a state from passing any “Law impairing the Obligation of Contracts” is an example of the part the common law must play in our system. This provision is meaningless unless we know what a contract is. The Constitution wisely refrains from saying. . . . This Court has not hesitated to read common-law doctrine of consideration into the contract clause.247 Just twelve years before Erie, Chief Justice Taft wrote a unanimous SCOTUS opinion, noting that, “The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted.” 248 Taft continues: The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood. 249 By denying the existence of Common Law in federal jurisprudence, SCOTUS removed the Bible from its place as the historical foundation and moral underpinning of American law.250 While denying the Common Law at the federal level, Erie left the historic Common Law still in force in the 247

D’Oench, Duhme & Co., Inc. v. Federal Deposit Ins. Corp., 315 U.S. 447, 469–71 (1942) (Jackson, J., concurring). 248 Ex parte Grossman, 267 U.S. 87, 108–09 (1925). 249 Id. at 109. 250 Graves, supra note 229, at 538.

jurisdictions of the states, where most religious liberty and freedom of speech issues were decided. (2) Step Two, SCOTUS applied the Bill of Rights to all state and local governments based on the Fourteenth Amendment.251 This is called the legal “Doctrine of Incorporation,” because it assumes that the drafters of the Fourteenth Amendment intended to incorporate the limitations that the Bill of Rights placed solely on Congress into its Due Process Clause aimed at the states.252 Thus the Doctrine of Incorporation gives the federal courts jurisdiction over policy issues not enumerated in the Constitution.253 The Bill of Rights was adopted to assure the states that they would be protected from federal meddling in the self-government of each state in all areas not expressly mentioned in the Constitution.254 Graves states the Doctrine of Incorporation was responsible for “turning the Bill of Rights on its head by bringing within the Court’s purview virtually all the objects that had been thought left to the states by the Tenth Amendment.” 255 Cantwell was the first case which applied the Free Exercise of Religion clause of the First Amendment to overrule a state law.256 Cantwell was a Jehovah’s Witness adherent who was convicted on a local breach of the peace statute for playing an anti-Catholic phonograph record in the streets of New Haven. 257 Justice Roberts writes for the court: We hold that that [breach of the peace] statute, as construed and applied to the appellants deprives them of their liberty without due process of law in contravention of the Fourteenth amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the

251

Cantwell v. Connecticut 310 U.S. 296, 303 (1940). Id. at 542–44. 253 Id. 254 Id. 255 Graves, supra note 229, at 544. 256 SCOTUS began to affirmatively entertain the idea of incorporation in 1925, two years before Erie. Gitlow v. New York, 268 U.S. 652, 666 (1925). 257 Cantwell v. Connecticut 310 U.S. 296, 303 (1940). 252

legislatures of the States as incompetent as Congress to enact such laws.258 Coupled with Erie decided just three years earlier, Cantwell drew all local religious matters into federal jurisdiction, now devoid of the Christian presuppositions of the Common Law. Justice Douglas endorsed a robust application the Incorporation Doctrine. In 1970, he wrote a dissenting opinion, which criticized the majority of SCOTUS for permitting a New York City tax law to stand that gave property tax exemptions to houses of worship, Walz v. Tax (1970): Douglas writes: In affirming this judgment the Court largely overlooks the revolution initiated by the adoption of the Fourteenth Amendment. That revolution involved the imposition of new and far-reaching constitutional restraints on the States. Nationalization of many civil liberties has been the consequence of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely in state law. The process of the ‘selective incorporation’ of various provisions of the Bill of Rights into the Fourteenth Amendment, although often provoking lively disagreement at large as well as among the members of this Court, has been a steady one. . . . As regards the religious guarantees of the First Amendment, the Free Exercise Clause was expressly deemed incorporated into the Fourteenth Amendment in 1940 in Cantwell v. Connecticut, 310 U.S. 296 , . . . The Establishment Clause was not incorporated in the Fourteenth Amendment until Everson v. Board of Education, 330 U.S. 1 , was decided in 1947. . . . And so the revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been incorporated in it and made applicable to the States. 259 258

Id. As late as 1922, the Supreme Court held that the Constitution “imposes upon the States no obligation to confer upon those within their jurisdiction . . . the right of free speech.” Prudential Ins. Co. of Am. v. Cheek, 259 US 530, 538 (1922). 259 Walz v. New York, 397 U.S. 664, 701–03 (1970) (Douglas, J. dissenting).

However, in Bartkus v. Illinois, (1959), Justice Felix Frankfurter, who also supported an expanded view of the Incorporation Doctrine, acknowledges that it cannot be based on the actual legislative intent of those who drafted and ratified the Fourteenth Amendment: We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a shorthand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.260 Whether the Doctrine of Incorporation was occasioned by the Fourteenth Amendment or by justices of SCOTUS roaming at large in the trackless field of their own imaginations without the restraints of the common law has been much debated. 261 Nevertheless, the Doctrine of Incorporation was a revolution (or more accurately a legal coup d’état) in American jurisprudence that was waged on an electorate wholly unawares. 262 260

Bartkus v. Illinois, 359 U.S. 121, 124 (1959). See Bret Boyce, Originalism and the Fourteenth Amendment, 33 WAKE FOREST L. REV. 909, 974 (1998). Boyce overviews a spectrum of leading legal scholars that offer historical augments either refuting or supporting the notion that the drafters of the Fourteenth Amendment intended the Doctrine of Incorporation: Raoul Berger has argued that the Amendment was not originally understood to incorporate the Bill of Rights at all. Charles Fairman, after marshaling a great deal of evidence against incorporation, ultimately concluded nonetheless that it was understood to incorporate only those rights in the Bill of Rights that may be deemed “fundamental.” Michael Curtis has argued that the Bill of Rights was incorporated in its entirety, with partial incorporation as the next most plausible option. Finally, Akhil Amar has urged that the Amendment incorporated all citizen rights in the Bill of Rights. However the historical record with respect to this question is even sparser than with respect to the general question of privileges and immunities. Moreover, Amar’s approach, which is most confident on the incorporation issue, is methodologically and historically the most problematic. Id. (footnotes omitted) (emphasis added). 262 WHITEHEAD, supra note 215 at 201. 261

After Erie and Cantwell, SCOTUS was finally free to interpret the First Amendment with the effect of controlling the foundational jurisprudence of every State in the Union, without regard to the historic Christian moorings of the Common Law. (3) Step Three: SCOTUS interpreted the First Amendment to require that every American law (federal, state and local) must have only secular purposes.263 Graves details the impact of the Everson opinion: In Everson v. Board of Education . . . Justice Black, writing for the Court, claimed that the Establishment Clause prohibits both the federal and state governments from establishing a state church, aiding either religion or irreligion by taxation, and participating in the affairs of religious organizations. . . . Thus, in 1947, the doctrine of separation of church and state was born (footnotes omitted).264 Due to the public school case of Everson, the revived Epicureanism of Darwin and Dewey became what Johnson calls the new de facto religious philosophy of the Constitution.265 Graves explains the secular/sacred dichotomy as it was worked out in constitutional law: “The Court’s distortion of the Establishment Clause [of the First Amendment] has resulted in the catch-22 of evolution being taught in public schools because it is ‘science’ but the teaching of Genesis creation being prohibited because it is ‘religion.’”266 Education writers McCarthy, Oppewal, Peterson, and Spykman note that since the Everson case, “The public-private and secular-sacred dichotomy has been used to interpret the establishment and free exercise clauses of the First Amendment in every case dealing with government funding for schools.”267 McCarthy et al. object arguing that the Doctrine of Separation of Church and State imposes a double standard against only 263

Everson v. Board of Education 330 U.S. 1, 18 (1947); Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). 264 Graves, supra note 229, at 555–56. 265 JOHNSON, REASON IN THE BALANCE, supra note 225, at 36–39. 266 Graves, supra note 229, at 561. 267 MCCARTHY ET AL., SOCIETY, STATE AND SCHOOLS 95 (1981).

theistic religious schools. After noting that in Torcaso v. Watkins, (1961), SCOTUS recognized Secular Humanism as a religion without a belief in God,268 they write: If the Court has ruled consistently that public money may not aid religion, and if it can be shown that public schools teach a real and legally defined religion, then the courts must abandon the secular-religious distinction and decide either to fund no schools or to fund all schools. This potential judicial dilemma is, in part, of the Court’s own making, and is the product of a society that has so accepted the privatizing of religion that it does not see in what sense all education is religious, that all schools, and not just those announcing it, have a religious outlook.269 Theologian Gordon Clark likewise objects to the fiction of religious neutrality in public schools. Clark explains: The school system that ignores God teaches its pupils to ignore God; and this is not neutrality. It is the worst form of antagonism, for it judges God to be unimportant and irrelevant in human affairs. This is atheism.270 Chief Justice William Rehnquist objected to the Doctrine of Separation of Church and State, based on the “bad history” used by SCOTUS to support it. 271 Prior to being elevated to Chief Justice, Rehnquist “pulled no punches” dissenting in Wallace v. Jaffree (1985). He writes: There is simply no historical foundation for the proposition that the framers intended to build a wall of separation [between Church and State]. . . . The recent court decisions are in no way based on either the language or intent of the framers. . . . The “crucible of litigation” . . . is well adapted to adjudicating factual disputes on the basis of testimony presented in court, but no amount of repetition of historical 268

Torcaso v. Watkins, 367 U.S. 488, 497 (1961) n.11. MCCARTHY ET AL., SOCIETY, STATE AND SCHOOLS, supra note 267, at 107. 270 Gordon H. Clark, A Christian Philosophy of Education, TRINITY REV., May–June 1988, at 5. 271 Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting). 269

errors in judicial opinions can make the errors true. The “wall of separation between Church and State” is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. 272 The Doctrine of Separation of Church and State virtually codified into law, the secular/sacred dichotomy, which marginalizes religious truth.273 In Lemon v. Kurtzman, (1971), SCOTUS gave its criteria for invalidating the work of legislatures whenever they violate the secular/sacred dichotomy. Chief Justice Berger writes what would come to be known as the Lemon Test: 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.”274 Under the Lemon Test laws made for religious purposes are deemed unconstitutional and invalidated by federal courts, while secular purposes are valid. A new jurisprudence is in effect. Twenty-four years after, the ratification of the Fourteenth Amendment in Holy Trinity, SCOTUS applied Common Law principals to a federal immigration law and held that it was invalidly applied against a church, stating “no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people.”275 However, it was not within jurisdiction of federal courts to address or invalidate local or states laws that may have purposed against religion, because the United States Constitution (as stated in Holy Trinity) “is supposed to have little touch upon the private life of the individual.” 276 The 272

Id. For an understanding of the historic meaning of the phrase, “Separation of Church and State” see PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002). After tracing the usage of the phrase from the colonies to the courts, Hamburger reaches an unequivocal conclusion: “As should be clear from the contrast between the [Separation of Church and State] and the religious liberty guaranteed by the First Amendment, constitutional authority for [Separation of Church and State] is without historical foundation.” Id. at 481. 274 Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (citations omitted). 275 Church of the Holy Trinity v. United States, 143 U.S. 457, 465 (1892). 276 Id. at 471. 273

words of the First and Fourteenth Amendments did not change between 1892 and 1971, but what did change was the worldview and jurisprudence of SCOTUS. Judge Robert Bork describes how the freedom of self-government is eroded when judges invalidate local and state laws: In a constitutional democracy the moral content of law must be given by the morality of the framer or the legislator, never by the morality of the judge. . . . The constitution assumes the liberties of self-government, not merely those liberties that consist in being free of government. The freedom to govern is enormously important to the individuals who make up a community, for it is freedom to control the environment—physical, aesthetic, and moral—in which they and their families live. When a court rewrites the Constitution by creating a new constitutional right or, without warrant, unduly expands an existing right, it does not create additional freedom but merely shifts freedom from a larger group to a smaller one. There is no intrinsic merit in that.277 The physical, aesthetic, and moral impact of federal judge rule over communities comes into focus, when the observations Tocqueville are considered. In 1840 Tocqueville writes. America is still the place where the Christian religion has kept the greatest real power over men’s souls; and nothing better demonstrated how useful and natural it is to man since the country where it now has widest sway is both the most enlightened and the freest.278 Lemon dealt with Rhode Island and Pennsylvania programs that supplemented the salaries of teachers in religiously based, private schools for teaching secular subjects. SCOTUS struck down both programs for violating the Establishment Clause as applied to the states by the Fourteenth Amendment (the Doctrines of Separation of Church and State and 277

ROBERT H. BORK, THE TEMPTING OF AMERICA 178 (1990) (emphasis added). ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 291 (J. P. Mayer ed., George Lawrence trans., HarperCollins Publishers 2000) (1840).

278

Incorporation, respectively). McCarthy et al. assert that the secular/sacred dichotomy blocks equal treatment of families who object to having their children catechized in the religion of natural humanism: As long as the artificial secular-religious distinction dominates both judicial reason and public attitudes, full equality between public and nonpublic schools will remain effectively blocked. In point of fact, however, the public schools, far from being religiously neutral, do endorse and exhibit religion, the religion of naturalistic humanism.279 Charter school reform may provide churches opportunities to navigate a way around the block caused by the secular/sacred dichotomy without having to wait for judicial reasoning and public attitudes to change on this point. If Johnson is correct that, “Darwinism is a pseudoscience that will collapse once it becomes possible for critics to get a fair hearing,”280 then churches need a strategy to gain a fair hearing during the educational experiences of the children of the vast majority of their church families. The secular/sacred dichotomy can be defeated when it can be shown that the Darwinian philosophy that underpins it is false and not religiously neutral. Churches and Christian parents need time during the educational experiences of their children to make the case that purposeless materialism is a false and implausible creator. Francis Schaeffer explains the importance of teaching Christian students how to engage and refute false truth claims: Isolating the student from large sections of human knowledge is not the basis of a Christian education. Rather it is giving him or her the framework or total truth, rooted in the Creator’s existence and in the Bible’s teaching, so that in each step of the formal learning process the student will understand what is true and what is false and why it is true or false. It is not isolating students from human knowledge.281 279

MCCARTHY ET AL., supra note 242, at 107. JOHNSON, THE WEDGE OF TRUTH, supra note 212, at 141. 281 Francis Schaeffer, Address at L’Abri Mini-Seminars (1982) (transcript at Francis Schaeffer on Education, GREAT BOOKS TUTORIAL, http://www.gbt.org/text/f.html (last visited Jan. 10, 2016)). 280

Charter schools offer many educational benefits to parents, including the flexibility to include privately funded church organized apologetics classes in their children’s school day. However, churches may be reluctant to make the most of these opportunities if their leadership subscribes to the Titus Doctrine. The Titus Doctrine is a reaction to the secular/sacred dichotomy because it marginalizes the truth claims of the Bible and Christianity. One theological problem with the Titus Doctrine is that it accepts too readily the Epicurean presuppositions of SCOTUS opinions. Allowing that a pluralistic government cannot be Christian or theistic in its legal philosophies and jurisprudence compels Titus to reach for an interpretation of the Bible that excludes education from the role government. Titus virtually builds on the secular/sacred dichotomy by arguing that government is secular and education is sacred. In contrast, when first written and interpreted the founding documents of the United States were in agreement with the biblical presupposition that all governments owe a duty to acknowledge the one true God. Government leaders may choose to rebel and ignore the natural law sensibilities written on their hearts by God, but it will be to their own peril and that of the people they govern.282 George Washington expressed this presupposition in an official proclamation as President. He writes: “it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor.”283 Washington recommended that the people ask “the great Lord and Ruler of Nations” to “pardon our national and other transgressions” and among other things “to promote the knowledge and practice of true religion and virtue” among all nations.284 Many other Presidents have made similar public pronouncements, as did Abraham Lincoln, three decades before the Holy Trinity case. He writes:

282

Psalm 2; Proverbs 29:2; Jeremiah 18; Isaiah 5:20–24; Daniel 4; Romans 13:1–7; 1 Peter 2:13–17. 283 George Washington, Thanksgiving Proclamation, LIBR. OF CONGRESS (October 3, 1789), http://lcweb2.loc.gov/ammem/GW/gw004.html. 284 Id.

[I]t is the duty of nations as well as of men, to own their dependence upon the overruling power of God, to confess their sins and transgressions, in humble sorrow, yet with assured hope that genuine repentance will lead to mercy and pardon; and to recognize the sublime truth, announced in the Holy Scriptures and proven by all history, that those nations only are blessed whose God is the Lord. . . . we have become too self-sufficient to feel the necessity of redeeming and preserving grace, too proud to pray to the God that made us!285 Likewise, President Jefferson trembled when he contemplated God’s reaction to the institution of slavery. Jefferson writes: And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever [sic].286 George Mason of Virginia was an influential delegate at the Constitutional Convention. He has been called “Father of the Bill of Rights.”287 He shared Jefferson’s apprehension, he writes: Every master of slaves is born a petty tyrant. [Slaves] bring the judgment of heaven on a Country. As nations can not [sic] be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects[,] providence punishes national sins, by national calamities.288

285

Abraham Lincoln, Proclamation Appointing a National Fast Day, ABRAHAM LINCOLN ONLINE (March 30, 1863), http://www.abrahamlincolnonline.org/lincoln/ speeches/fast.htm. 286 Thomas Jefferson Notes on the State of Virginia, Query XVIII, http://xroads.virginia. edu/~hyper/jefferson/ch18.html. 287 CARLA R. HEYMSFELD & JOAN W. LEWIS, GEORGE MASON, FATHER OF THE BILL OF RIGHTS (1991). 288 George Mason, at the Constitutional Convention in Philadelphia in 1787, quoted in THE PAPERS OF GEORGE MASON 173 (Robert A. Rutland ed., 1970).

Interpreters can take these patriots at their word, or filter their meaning by assuming they were employing ceremonial or propagandistic language. When faced with historic evidence that the government actions of the drafters and signers of the Bill of Rights did not comport with modern interpretations of the First Amendment, Justice Souter would not consider their actions as evidence against his interpretation of the clause’s meaning.289 He chose instead to question the founders’ use of language and motives. In his concurring opinion in Lee v. Weisman (1992), Justice Souter writes: The First Congress did hire institutional chaplains, see Marsh v. Chambers, supra, at 788, 103 S.Ct., at 3334, and Presidents Washington and Adams unapologetically marked days of “‘public thanksgiving and prayer,’” see R. Cord, Separation of Church and State 53 (1988). Yet in the face of the separationist dissent, those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next.290 A more plausible explanation is that a transformation has indeed occurred in the de facto religious philosophy in the courts and populace of this nation. The founders presupposed a theistic worldview with moral absolutes, which they called the Law of Nature. They presupposed that the living God had endowed human beings with the faculty of reason to ascertain and justly apply the Law of Nature under time honored traditions of Common Law. However, today American jurisprudence and public attitudes presuppose a worldview that may be called materialistic, humanistic or Epicurean with a morality that is relativistic. It will acknowledge no absolute Creator to whom nations and individuals are accountable. Hilaire Belloc, the Catholic historian and prolific writer of the twentieth century, notes, “Every major question in history is a religious question. It has more effect in molding life than nationalism or common language.”291

289

Lee v. Weisman, 505 U.S. 577, 626 (1992) (Souter, J., concurring). Id. 291 Hilaire Belloc (1870–1953) quoted in THE GREAT QUOTATIONS 89 (G. Seldes ed., 1966). 290

Beginning in 1962, using the legal Doctrines of Incorporation and Separation of Church and State, SCOTUS began imposing its new de facto religious philosophy on local and state school boards.292 Without the Common Law as its guide, SCOTUS no longer shared the conviction of the founders and leading educators of the founding era, that an understanding of the Bible and Christianity was essential to maintaining American liberty. For example, when SCOTUS prohibited teacher-led Bible reading in all public school classrooms, it was concerned that “if portions of the New Testament were read without explanation, they could be and . . . had been psychologically harmful to the child.”293 This psychological concern was consistent with the worldview of Dewey,294 but antithetical to a biblical worldview.295 Likewise, when SCOTUS ruled that the Ten Commandments must never be posted at a public school, it reasoned as follows: If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state

292

Engel v. Vitale, 370 U.S. 421 (1962) (Court prohibits nondenominational school prayers for voluntary student recitation in public schools.); Abington School District v. Schempp, 374 U.S. 203 (1963) (The Court prohibits school-sponsored voluntary Bible reading for devotional purposes in public schools.); Wallace v. Jaffree, 472 U.S. 38 (1985) (The Court prohibits public schools from setting aside a moment of silence for “meditation or voluntary prayer”); Stone v. Graham, 449 U.S. 39 (1980) (The Court prohibits displays of the Ten Commandments in public school classrooms); Edwards v. Aguillard, 482 U.S. 578 (1987) (The Court prohibits public schools from teaching creation science, along with evolution); Lee v. Weisman, 505 U.S. 577 (1992) (The Courts holds that a clergymen leading non-sectarian prayers at a public school graduation is prohibited); Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (The Court prohibits student-led, student-initiated prayer at a public school football game.). 293 Abington Sch. Dist. v. Schempp, 374 U.S. 203, 209 (1963). 294 EDMONDSON, supra note 185, at 33. 295 Psalms 19:7; Psalms 119:97–104; Matthew 4:4; Andy Woods, The BIG Lie: ‘Separation of Church and State’ (Part 8), THE WORD ON POLITICS (March 14, 2014), http://thewordonpolitics.com/the-big-lie-separation-of-church-and-state-part-8/. Woods received a Juris Doctorate from Whittier Law School, California, and a Doctor of Philosophy in Bible Exposition from Dallas Theological Seminary.

objective under the Establishment Clause [of the First Amendment].296 This ruling reflected the private versus public aspect of the secular/sacred dichotomy. The Lemon Test reveals that SCOTUS has replaced the Common Law presumptions of jurisprudence with the sacred/secular dichotomy, derived from the Epicurean philosophy of materialistic Darwinism. This shift in the worldview of SCOTUS posed a new and considerable obstacle to Christian families wanting to educate their children with a biblical foundation pursuant to the practices and faith traditions of the national founders and the Reformation. Churches and Christian families would have to decide how to respond to the new public education prohibitions of SCOTUS. Research in the next section, indicates that mostly churches were content not to reassert their historic role in education. Following the Titus Doctrine may lead to a spiritually healthy response for Christian families with a biblical worldview and the means to homeschool or enroll in private school. However in America, education has always been regarded as public concern of local governments and churches. Uncritical acceptance of the Titus Doctrine militates against churches interacting with the fastest growing form of education in America todayâ&#x20AC;&#x201D; public charter schools. V. Practical Limitations of the Titus Doctrine Significance of Worldview Worldview has emerged as a significant concept because it distinguishes people who self-identify as Christian from those who regard the Bible as the source of ultimate truth on which they build their lives. Worldview most often determines the real life choices people make, as was noted by pollster George Barna: Ongoing research by The Barna Group on these matters consistently demonstrates the powerful impact a personâ&#x20AC;&#x2122;s worldview has on their life. A worldview serves as a 296

Stone v. Graham, 449 U.S. 39 (1981).

person’s decision-making filter, enabling them to make sense of the complex and huge amount of information, experiences, relationships and opportunities they face in life. By helping to clarify what a person believes to be important, true and desirable, a worldview has a dramatic influence on a person’s choices in any given situation.297 Likewise, philosopher and theologian Francis Schaeffer explained in the 1970’s, “people function on the basis of their world view more consistently than even they themselves may realize. The problem is not outward things. The problem is having, and then acting upon, the right world view.”298 Colson and Pearcey stated plainly, “The church’s singular failure in recent decades has been the failure to see Christianity as a life system, or worldview, that governs every area of existence.”299 Ronald Nash presented a practical definition of worldview: “A worldview is a conceptual scheme by which we consciously or unconsciously place or fit everything we believe and by which we interpret and judge reality.”300 A Christian biblical worldview would mean understanding spiritual, physical and moral reality from the view revealed in the Bible. Theologians and Christians will differ about the particulars of the view of reality actually revealed in the Bible; nevertheless, many Christians can agree on the goal of ascertaining the worldview presented in the Bible and applying it to one’s own life and understanding of reality. A 2009 Barna survey revealed that only 9% of Americans today have a biblical worldview.301 This should be distinguished from the 76% of Americans who self-identify as Christians, according to the American Religious Identification Survey (ARIS).302 Barna identified a survey-taker 297

Barna Survey Examines Changes in Worldview among Christians over the Past 13 Years, BARNA GROUP (March 6, 2009), https://www.barna.org/barnaupdate/transformation/252-barna-survey-examines-changes-in-worldview-amongchristians-over-the-past-13-years. 298 FRANCIS SCHAEFFER, HOW SHOULD WE THEN LIVE?: THE RISE AND DECLINE OF WESTERN THOUGHT AND CULTURE 254 (1976). 299 CHARLES COLSON & NANCY PEARCEY, HOW NOW SHALL WE LIVE? at xii (1999). 300 RONALD H. NASH, FAITH AND REASON: SEARCHING FOR A RATIONAL FAITH 24 (1988). 301 Barna Survey, supra note 297. 302 Barry A. Kosmin & Ariela Keysar, American Religious Identification Survey (ARIS 2008) Summary Report, INST. FOR THE STUDY OF SECULARISM IN SOC’Y (March 2009), http://www.americanreligionsurvey-aris.org/reports/ARIS_Report_2008.pdf. The 2008

as having a biblical worldview when one affirmed six basic theological statements associated with historic Christianity. Barna reported: For the purposes of the survey, a “biblical worldview” was defined as believing that (1) absolute moral truth exists; (2) the Bible is totally accurate in all of the principles it teaches; (3) Satan is considered to be a real being or force, not merely symbolic; (4) a person cannot earn their way into Heaven by trying to be good or do good works; (5) Jesus Christ lived a sinless life on earth; and (6) God is the all-knowing, allpowerful creator of the world who still rules the universe today. In the research, anyone who held all of those beliefs was said to have a biblical worldview.303 Even among Christians whom Barna would categorize as born again, “less than one out of every five (19%) had such an outlook on life,” based on this six question criteria.304 This survey exposed a worldview crisis among

ARIS report showed a 10% drop since 1990 in the number of American adults identifying themselves as Christian. American adults who identify themselves as Christian over any other religious affiliation represented 86.2% of the American population in 1990, but dropped to 76.0% in 2008. See also Cathy Lynn Grossman, Most Religious Groups in USA Have Lost Ground, Survey Finds, USA TODAY (March 17, 2009), http://www. usatoday.com/news/religion/2009-03-09-american-religion-ARIS_N.htm. Grossman reports on the significance of this trend. She writes: These dramatic shifts in just 18 years are detailed in the new American Religious Identification Survey (ARIS), to be released today. It finds that, despite growth and immigration that has added nearly 50 million adults to the U.S. population, almost all religious denominations have lost ground since the first ARIS survey in 1990. So many Americans claim no religion at all (15%, up from 8% in 1990), that this category now outranks every other major U.S. religious group except Catholics and Baptists. In a nation that has long been mostly Christian, “the challenge to Christianity . . . does not come from other religions but from a rejection of all forms of organized religion, the report concludes. Id. 303 Barna Survey, supra note 297. 304 Id. (“‘[B]orn again Christians’ were defined as people who said they have made a personal commitment to Jesus Christ that is still important in their life today and who also indicated they believe that when they die they will go to Heaven because they had confessed their sins and had accepted Jesus Christ as their savior. Respondents were not asked to describe themselves as ‘born again.’”).

Christian adults, but when Barna research isolated young adults, the result was even more dire. Less than one-half of one percent (0.5%) of young adults between the ages of 18 to 23 ascribe to a biblical worldview, based on Barna’s six question criteria.305 This lack of discipleship does not bode well for the future of churches, and it supports the notion that much damage is done to the biblical worldview of Christian children before they graduate from high school. Barna reported that three out of four “twentysomethings” who attended church in their teen years grow into adults who are spiritually disengaged (i.e., “not actively attending church, reading the Bible, or praying” to use Barna’s definition).306 These reports by Barna were supported by LifeWay Research (LifeWay), which is affiliated with the publishing arm of the Southern Baptist Convention (SBC). USA Today reported the results of LifeWay’s research: Protestant churches are losing young adults in “sobering” numbers, a survey finds. Seven in 10 Protestants ages 18 to 30—both evangelical and mainline—who went to church regularly in high school said they quit attending by age 23, according to the survey by LifeWay Research. And 34% of those said they had not returned, even sporadically, by age 30.307 Two research ministries, the Nehemiah Institute (Nehemiah) and America’s Research Group (ARG), independently identified education experiences in middle and high school as the time and place when worldview is formed for most children who attend church regularly and are 305

Id. Most Twentysomethings Put Christianity on the Shelf Following Spiritually Active Teen Years, THE BARNA GROUP (September 11, 2006), http://www.barna.org/barnaupdate/article/16-teensnext-gen/147-most-twentysomethings-put-christianity-on-theshelf-following-spiritually-active-teen-years. 307 Cathy Lynn Grossman, Young Adults Aren’t Sticking with Church, USA TODAY (August 6, 2007, http://www.usatoday.com/news/religion/2007-08-06-churchdropouts_N.htm. The statistics were based on a survey of 1,023 Protestants ages 18 to 30 who said they had attended church at least twice a month for at least one year during high school. LifeWay did the survey in April and May 2007. Margin of error is plus or minus 3 percentage points. 306

raised in Christian homes. Dan Smithwick founded Nehemiah, which has been studying the worldview of American teens raised in Christian homes for over twenty-five years. 308 On behalf of Nehemiah, Smithwick affirms the Titus Doctrine: We assert the mixing of school and civil government is not only bad business, but also bad theology. Education of youth is simply not a government function, biblically speaking. Government schools should not be reformed; rather they should be dismantled, though carefully. What is truly needed is a thoughtful plan for separating school and state.309 Nevertheless, after studying data collected from approximately 100,000 students from thousands of schools,310 Smithwick acknowledges the limited cultural impact of the Titus Doctrine approach to education: “It is clear that the Christian school movement of the past 40 years and the homeschooling movement of the past 20+ years are having only marginal impact on the next generation of the Christian community.”311 According to Nehemiah’s research, most private Christian schools follow the same secularizing pattern as the traditional public schools, with the exception of only about 5% of Christian schools, which are successfully conveying a biblical worldview. Smithwick explains: I will add here that results of PEERS testing over the past decade shows that a wide difference in Biblical worldview understanding exists even among Christian schools. For a host of reasons, the humanist worldview has found its way into Christian education. Furthermore, test results from a few Christian schools have even fallen below the average of public school students.312 308 Dan Smithwick, Where Are We Going?, PUBLISHER’S CORNER (September 28, 2010), http://publisherscorner.nordskogpublishing.com/2010/09/where-are-we-going.html. Dan Smithwick is the founder and president of the Nehemiah Institute, and co-founder and an executive of the Worldview Alliance 309 DAN SMITHWICK, TEACHERS, CURRICULUM, CONTROL: A WORLD OF DIFFERENCE 2–3 (2012). 310 Smithwick, supra note 4; Smithwick, supra note 308. 311 Smithwick, supra note 308. 312 SMITHWICK, supra note 309, at 23.

Nehemiah employs a worldview measuring instrument called the PEERS Test. The test is designed to measure students’ worldviews across five different spheres of human activity: politics, education, economics, religion, and social issues, hence the name PEERS. Nehemiah tracks the beliefs of students from Christian homes enrolled in different types of schools: traditional public schools (80–85% of children from Christian homes), traditional private Christian schools (10–12% of children from Christian homes), private worldview-based Christian schools (5% of children from Christian homes), and homeschooling (2–3% of children from Christian homes).313 Nehemiah data does not yet account for public charter schools. Nehemiah research indicates that 90% of youth from Christian homes attend schools that are not likely to produce students who ascribe to a biblical worldview.314 Over the years, these diverse forms of education have produced results that are distinct and consistent. Moreover, the results are so predictable that Nehemiah has been able to identify a worldview trend and trajectory for each distinct form of education315 (see Figure 1).

313

Smithwick, supra note 308. Smithwick, supra note 308. 315 Dan Smithwick, Why Believe “Nehemiah?”, NEHEMIAH INST., http://www.nehemiah institute.com/WhyBelieveNehemiah.pdf (last visited Jan. 10, 2016). 314

Figure 1. PEERS Trend Chart. Data from: Nehemiah Institute, last accessed June 26, 2015, http://www.nehemiahinstitute.com/. The trends can be seen starting in 1988 when the test was first administered, to the most recent results reported in 2012. Scores above 70 are identified by Nehemiah as reflecting Biblical Theism. Scores between 70 and 30 are identified as a moderate Christian worldview. Scores between 30 and 0 are designated as reflecting a Humanistic worldview, and scores below 0 are designated by Nehemiah as a Socialistic worldview.316 Christian author and speaker Josh McDowell found the PEERS Test statistics so compelling that he featured them in a book bearing an ominous title: The Last Christian Generation.317 McDowell wrote, 316

Id. Reproduced by permission of the publisher. See Appendix 8, NEHEMIAH INST., http://www.nehemiahinstitute.com (last visited Nov. 15, 2015). 317 JOSH MCDOWELL, THE LAST CHRISTIAN GENERATION: THE CRISIS IS REAL. THE RESPONSIBILITY IS OURS (2006).

I am familiar with the PEERS test and have reported on the findings of the test in a book of mine, The Last Christian Generation. The loss of a Christian worldview, as reported by 20+ years of PEERS testing from the Nehemiah Institute is the greatest danger facing the Church in America today.318 McDowell explained his book’s title: I realize the title of this book may be shocking. But the decision to call this The Last Christian Generation was not made lightly nor was it done for sensationalism. I sincerely believe unless something is done now to change the spiritual state of our young people—you will be the last Christian generation!319 The conclusions and predictions of Smithwick and McDowell for the future of the church in America sound extreme, but their statements are consistent with the work of Barna, Lifeway and other researchers. The research of America’s Research Group (ARG) supports the conclusion of Nehemiah that for most children raised in church attending families, education experiences rather than family or church practices will determine their worldview. Britt Beemer is the CEO and founder of ARG. Beemer is a past researcher for the Heritage Foundation and has done research and planning for fourteen senatorial campaigns. Without any connection to Nehemiah’s research, Beemer likewise identified middle and high school as the time when most children raised in Christian homes begin to doubt the relevance and authority of Scripture, which is essential to understanding their abandonment of a biblical worldview and their eventual disengagement from church in their twenties.320

318

Josh McDowell, Endorsements, WORLDVIEW ALLIANCE (2010), http://www.worldviewalliance.com/Endorsements.php (last visited Jan. 10, 2016). 319 MCDOWELL, supra note 317, at 11. 320 Randy Douglass, Closing the Back Door: The Need for Christian Education—Part Two: When Are Church Adolescents Dropping Out?, DR. NORMAN L. GEISLER (October 21, 2009), http://normangeisler.net/articles/GuestAuthors/RDouglass-NeedForChristian Education.htm. Douglass is Adjunct Professor of Religion at Charleston Southern University as well as a Bible teacher at Palmetto Christian Academy in Mount Pleasant, SC. He is the coauthor of two books with Norman Geisler.

Beemer was commissioned to discover the underlying reasons behind the “twentysomething” church exodus as revealed by Barna and corroborated by LifeWay.321 Beemer surveyed one thousand people ages twenty to twenty-nine who had attended conservative/evangelical churches nearly every week while growing up, but who never or seldom attend church now. The majority of these non-attenders still believed in God; they still believed they were saved; and they still believed they will go to heaven after they die.322 But what a majority did not ascribe to was the accuracy or authority of the Bible. Of those no longer attending church in their twenties, 62% would not affirm that all the accounts/stories in the Bible are true.323 Of those who doubted the Bible in their twenties, 88% began to entertain those doubts in middle or high school.324 The significance of this last statistic was explained by Christian author and educator Randy Douglass: What this means is that by the time our adolescents get to college, most are already gone! Their hearts are fertile soil to the seeds of doubt. Make no mistake about it. College professors are not the primary casters of the seeds of doubt. They are simply the harvesters of the fruit of doubt that was placed deep in the hearts of these people when they were in high school and middle school. . . . We need to make hard decisions and we need to make them now. Our children and the future of the church are at stake.325 Christian researchers and worldview observers have declared that the future of the church in America and the futures of children raised in Christian homes are at stake. Of emerging adults who attended conservative/evangelical churches as teens but no longer do, 86% attended

321

KEN HAM & BRITT BEEMER, ALREADY GONE: WHY YOUR KIDS WILL QUIT CHURCH AND WHAT YOU CAN DO TO STOP IT (2009). Beemer was commissioned by Ken Ham of Answers in Genesis (AIG) to do research for this book. The premise of this title is that the majority Christian teens attending church have already left the church in their thinking because they had not adopted a biblical worldview. 322 Douglass, Closing the Back Door, supra note 320. (“When asked if they believed that God existed and created the world, 86% said, “yes.” Similarly when asked if they believed they were saved and would go to heaven upon death, 66% said yes, 14% said no, while 20% were not sure.”). 323 HAM & BEEMER, supra note 321, at 57. 324 Id. 325 Douglass, supra note 320.

public schools, where a biblical worldview is not permitted to be taught.326 Douglass explains, “In the public school system, the Christian worldview is not taught, not allowed to be taught, and will actually be taught against. For example, the average public school is pro evolution, pro-abortion, and pro homosexuality. The effect of this anti-Christian worldview has left its mark on our church adolescents.”327 Douglass’ claims about what worldview perspective may be taught in public school are the foreseeable result of the worldview shift that was explained above. Smithwick concurs with Douglass about the urgency required of churches. Smithwick writes: Nevertheless, time is of the essence. Each new kindergarten class that enters into the government, humanist system of education is being trained to go against the Christian faith. If they stay through high school, most of them will live their lives as trained. They will side with relativism and shun absolutes. The Bible will be gone.328 The National Study of Youth and Religion (NSYR) produced high quality quantitative and qualitative research supporting the conclusions of Barna, LifeWay, ARG, and Nehemiah. Christian Smith of the NSYR coined the name Moralistic Therapeutic Deism (MT-Deism) to describe the worldview adopted by most American teens irrespective of their family’s religious association.329 MT-Deism is not a religion in the sense that it would have an organization or a list of members; nevertheless, it is the religious worldview as actually confessed and practiced by the vast majority of American teenagers, according NSYR.330 Smith and Denton describe MT-Deism as a parasite belief system, which is “colonizing” and supplanting the core beliefs of traditional religion “almost without anyone noticing.”331 When considering the religious beliefs of the parents of the teens that were studied, Smith and Denton concluded,

326

Id. Id. 328 SMITHWICK, supra note 309, at 24. 329 CHRISTIAN SMITH & MELINDA DENTON, SOUL SEARCHING: THE RELIGIOUS AND SPIRITUAL LIVES OF AMERICAN TEENAGERS 162–63 (2005). 330 Id. at 171. 331 Id. 327

A significant part of Christianity in the United States is actually only tenuously Christian in any sense that is seriously connected to the actual historical Christian tradition, but is rather substantially morphed into Christianity’s misbegotten step-cousin, Christian Moralistic Therapeutic Deism.332 Smith explains: Rather, what appears to be the actual dominant religion among U.S. teenagers is centrally about feeling good, happy, secure, at peace. It is about attaining subjective well-being, being able to resolve problems, and getting along amiably with other people.333 Smith describes God from an MT-Deism worldview, as something very distinct from a biblical worldview: But this God is not Trinitarian, he did not speak through the Torah or the prophets of Israel, was never resurrected from the dead, and does not fill and transform people through his Spirit. This God is not demanding. He actually can’t be, since his job is to solve our problems and make people feel good. In short, God is something like a combination Divine Butler and Cosmic Therapist—he is always on call, takes care of any problems that arise, professionally helps his people to feel better about themselves, and does not become too personally involved in the process.334 NSYR’s work has been lauded as a landmark achievement by Evangelical, Catholic, Jewish, and Mormon publications.335 It is regarded 332

Id. Christian Smith, On “Moralistic Therapeutic Deism” as U.S. Teenagers’ Actual, Tacit, De Facto Religious Faith, in THE 2005 PRINCETON LECTURES ON YOUTH, CHURCH, AND CULTURE 48, http://www.ptsem.edu/lectures/?q=On+%E2%80%98Moralistic+Therapeutic+Deism&x= 13&y=16&action=results. 334 SMITH & DENTON, supra note 329, at 165. 335 Soul Searching: The Religious and Spiritual Lives of American Teenagers—Reviews, NAT’L STUDY OF YOUTH & RELIGION, http://youthandreligion.nd.edu/research333

as a new standard by which all future research will be measured.336 Writing for The Journal of Adolescent Research, Jeffrey Arnett gave no faint praise: “This book is, quite simply, the best book ever on the best study ever on the topic of adolescents and religion. It is exemplary social science, combining the best of qualitative and quantitative methods, not only empirically strong but theoretically rich.”337 According to Smith, teens from Christian families live by the tenets of MT-Deism without ever having to leave their congregations and Christian identification.338 Albert Mohler Jr., the president of Southern Baptist Theological Seminary, recommends that churches actively respond to the religious condition of the teens in their congregations, which has been brought to light by Smith’s careful research: This research project [Soul Searching] demands the attention of every thinking Christian. . . . Christian Smith and his colleagues have performed an enormous service for the church of the Lord Jesus Christ in identifying Moralistic Therapeutic Deism as the dominant religion of this American age. Our responsibility is to prepare the church to respond to this new religion, understanding that it represents the greatest competitor to biblical Christianity. More urgently, this study should warn us all that our failure to teach this generation of teenagers the realities and convictions of biblical Christianity will mean that their children will know even less and will be even more readily seduced by this new form of paganism.339

findings/books/soul-searching-the-religious-and-spiritual-lives-of-american-teenagers/ (last visited Nov. 15, 2015) (book reviews). 336 Lynn Schofield Clark, Book Review, 44 J. FOR THE SCI. STUDY OF RELIGION, no. 4, 2005, at 396, 442. 337 Jeffrey Jensen Arnett, Review of Soul Searching: The Religious and Spiritual Lives of American Teenagers, by Christian Smith and Melinda Denton, 21 J. OF ADOLESCENT RES., no. 2, 2006, at 205, 205–07. 338 Albert Mohler, Jr., Moralistic Therapeutic Deism–the New American Religion, ALBERTMOHLER.COM (April 11, 2005), http://www.albertmohler.com/2005/04/11/moralistic-therapeutic-deism-the-newamerican-religion-2/. 339 Id.

Mohler’s urgent warning was brought into sharper focus by Smith’s third report, which continued to chronicle its young subjects’ lives as they contend with the adverse consequences and confusion wrought by the distorted worldview of MT-Deism. Consider this summary of Smith’s third report, Lost in Transition, from NSYR’s website: Smith identifies five major problems facing very many young people today: confused moral reasoning, routine intoxication, materialistic life goals, regrettable sexual experiences, and disengagement from civic and political life. The trouble does not lie only with the emerging adults or their poor individual decisions but has much deeper roots in mainstream American culture—a culture which emerging adults have largely inherited rather than created. Older adults, Smith argues, must recognize that much of the responsibility for the pain and confusion young people face lies with them.340 Worldview beliefs have real world consequences. Christian families are losing their children to an MT-Deism worldview, and churches are not helping much, as Smith describes, “Our distinct impression is that very many religious congregations and communities of faith are failing rather badly in religiously engaging and educating our youth.”341 Smith explains that churches are failing in a competition with schools and media for sway over the worldview of the teens in their congregations: Our research suggests that religious congregations are losing out to school and the media for the time and attention of youth. When it comes to the formation of the lives of youth, viewed sociologically, faith communities typically get a very small seat at the end of the table for a very limited period of time.342

340

Lost in Transition Summary, NAT’L STUDY OF YOUTH & RELIGION, http://youthandreligion.nd.edu/assets/102479/litpromosummary.pdf (last visited Jan. 10, 2016). 341 SMITH & DENTON, supra note 329, at 262. 342 Id. at 270.

If churches want to influence the worldview of future generations, Smith asserts, they must devise some means of getting more time and prestige at the faith formation table. He wrote: [One] way or another, religious communities that are interested in the faith formation of their youth simply must better address the structural competition of other, not always supportive institutional activities. This will likely require developing new and creative norms, practices, and institutions appropriate to specific religious situations and traditions.343 This article proposes that churches seize the opportunity of charter school reform in developing new and creative approaches to conveying a biblical worldview to families dependent on public education. The author developed a church co-op ministry to convey a biblical worldview to students enrolled in a public charter school that rented our church facilities on Tuesdays and Thursdays. A church sponsored co-op met on the same facilities on Mondays and Wednesdays during traditional schools hours to teach Christian apologetics and refute many of the historical and scientific truth claims presented in the charter school textbooks. Two civil rights attorneys wrote memoranda explaining the constitutionality of this arrangement under current SCOTUS doctrine.344 Lack of facilities is a major hindrance to charter schools as they compete with traditional public schools. Consequently many charter schools rent their facilities from churches. Many charter schools are eager to expand. They cannot accommodate all the families requesting enrollment, so they are forced to use enrollment lotteries and establish waiting lists.345 The California Charter School Association (CCSA) 343

Id. See Appendices I and II. 345 See Record 158,000 Students on Waiting Lists for Charter Public Schools in California, CAL. CHARTER SCHOOLS ASSâ&#x20AC;&#x2122;N (May, 4, 2015), http://www.calcharters.org/blog/2015/05/158000-student-names-on-charter-publicschool-waiting-lists-in-california.html. See also California Charter Schools Grow to Over 1,000 for the 2012-13 School Year While Student Enrollment Grew By An Unprecedented 70,000 Students, CAL. CHARTER SCHOOLS ASSâ&#x20AC;&#x2122;N (October 23, 2012), http://www.calcharters.org/blog/2012/10/california-charter-schools-grow-to-over-1000for-the-2012-13-school-year-while-student-enrollment-gr.html. 344

estimated that during the 2014–2015 school year, there were 158,000 students in California on waiting lists hoping for the opportunity to enroll in existing but impacted charter schools.346 This presents opportunities for churches to develop programs and strategies to impact the educational experiences of charter school students. However, the Titus Doctrine militates against churches working with charter schools, and encourages Christian families to pay for private Christian school or homeschool independently. Limitations of Christian homeschooling without Church support There are limiting drawbacks to homeschooling when it comes to impacting church families with a biblical worldview. First, it must be noted that most homeschool families may not hold a biblical worldview. According to a Barna survey conducted back in 2001, less than half of homeschool parents (49%) were born-again Christians and only 15% were Evangelical.347 Also, more recent research from Barna, mentioned above (2009), would indicate that most likely only 19% of born-again Christian parents ascribe to a biblical worldview that they could impart to their children.348 Barna wrote, “When it comes to raising children to be spiritually 346

Id. Barna defined “Born again Christians” in these surveys as people who said they had made a personal commitment to Jesus Christ that is still important in their life today and who also indicated they believe that when they die they will go to Heaven because they had confessed their sins and had accepted Jesus Christ as their savior. Respondents were not asked to describe themselves as “born again” or if they considered themselves to be “born again.” “Evangelicals” are a subset of born again Christians in Barna surveys. In addition to meeting the born again criteria described above, evangelicals also satisfy seven other conditions. Those include believing that the Bible is totally accurate in all that it teaches; saying that their faith is very important in their life today; believing they have a personal responsibility to share their religious beliefs about Christ with nonChristians; believing that Satan exists; believing that eternal salvation is possible only through grace, not by works; believing that Jesus Christ lived a sinless life on earth; and describing God as the all-knowing, all-powerful, perfect deity who created the universe and still rules it today. Being classified as an evangelical has no relationship to church attendance or the denominational affiliation of the church they attend. Respondents were not asked to describe themselves as “evangelical.” Home School Families Have Different Backgrounds than Commonly Assumed, BARNA GROUP (August 20, 2001), http://www. barna.org/barna-update/article/5-barna-update/57-home-school-families-have-differentbackgrounds-than-commonly-assumed?q=home+schooling. 348 Barna Survey, supra note 297. 347

mature, the old adage, ‘you can’t give what you don’t have,’ is pertinent for millions of families.”349 Therefore, unless churches respond as an institution to assist and support homeschool families, most will not impart a biblical worldview to their own children. Nehemiah research confirmed this conclusion by testing homeschool students from Christian homes. A small percentage (8%) of homeschool students from Christian homes have scored very well, but a surprisingly higher percentage (25%) score very low on the Nehemiah PEERS Test scale, meaning that they have primarily a humanistic worldview.350 Unless American churches and clergy revive the education priority of the reformers and American founders, most independent homeschoolers and charter homeschoolers will not develop a biblical worldview. Dissertations Build on Nehemiah’s Research Several dissertations have been published building on the work of Nehemiah’s research. When considered together they indicate that churches do have the potential to succeed at conveying a biblical worldview to young people by developing strategies to reach public charter school students. In 2010, Cherie Brickhill wrote an educational dissertation at Liberty University using Nehemiah’s PEERS Test to determine why some private Christian schools succeed in conveying a biblical worldview while most do not.351 Testing middle school students, Brickhill isolated four family-driven factors that would seem likely to influence worldview development: (1) the type of elementary education (whether Christian or public), (2) frequency of church attendance, (3) personal faith commitment of the student, and (4) parent Christian belief. 352 The results suggest that these factors had only a negligible impact on PEERS Test scores. Many of the students in this study demonstrated a commitment to faith-based practices, but their worldview was strongly secular humanist. Brickhill identified “a gap between religion349

Parents Accept Responsibility for Their Child’s Spiritual Development but Struggle with Effectiveness, BARNA GROUP (May 6, 2003), http://www.barna.org/barna-update/ article/5-barna-update/120-parents-accept-responsibility-for-their-childs-spiritualdevelopment-but-struggle-with-effectiveness. 350 Smithwick, supra note 308. 351 Cherie Elder Brickhill, A Comparative Analysis of Factors Influencing the Development of a Biblical Worldview in Christian Middle-School Students, (October 2010) (Ph.D. dissertation, Liberty University), http://digitalcommons.liberty.edu/ cgi/viewcontent.cgi?article=1390&context=doctoral. 352 Id. at 73–74

based knowledge and practices and application of scripture to real life issues.”353 In an education dissertation at Liberty University in 2008, James Fyock used the PEERS Test to evaluate the impact that a teacher’s worldview might have on seniors at a Christian high school.354 The teachers had received worldview training at an in-service prior to the study. Students were tested before and after taking a worldview apologetics class that was added to the usual courses taught at the school. During a nine-month duration the students’ average PEERS Test score moved from 11.57 to 31.43, moving from Humanism to Moderate Christianity on the Nehemiah’s worldview scale.355 Although limited by the number of participants, Fyock’s research suggests that a trained and committed teacher can succeed at conveying a biblical worldview by teaching a course focused on worldview at a Christian school.356 These dissertations bode well for a church worldview co-op designed to augment a charter school. The family-driven factors which were beyond the control of a private Christian school would likewise be beyond the control of a church co-op. However, these factors are not likely to have a significant impact on the worldview of middle and high school students, based on Brickhill’s results. On the other hand, the variables identified by Fyock would be just as attainable to a church co-op as they were to a private Christian school. The private school augmented its curriculum with one class taught by a trained and committed teacher. Likewise, a church co-op could provide a class with such a teacher to the augment the education provided by a charter school, and possibly achieve similar success. In 2001, Donald David Ray, Jr. used his education dissertation at Southern Baptist Theological Seminary to test whether a correlating relationship could be established between high school students’ beliefs about origins and their worldview convictions.357 To generate data from 353

Id. at 78. James A. Fyock, The Effect of the Teacher’s Worldviews on the Worldviews of High School Seniors, at iii–iv (June 2008) (Ph.D. dissertation, Liberty University), http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1113&context=doctoral. 355 Id. at 80. 356 Id. at iii–iv. 357 Donald David Ray Jr., The Relationship of High School Students’ Attitudes Towards Creation and Evolution with the Students’ Worldview Philosophy (2001) 354

different forms of education, Ray used two test instruments: the PEERS Test and the Creationist Worldview Test (CWT). The CWT is also published by Nehemiah, although designed by Steve Deckard in 1997.358 Deckard is currently the professor of Doctoral Studies in Educational Leadership at Liberty University and has been associated with the Institution for Creation Research (ICR) since 1991.359 Ray studied four groups of high school students from the eastern section of Atlanta, Georgia. The groups consisted of (1) two Christian school groups—30 students; (2) two church youth groups—30 students; (3) one public school class—42 students; and (4) one home school group—30 students. Ray used a chi-square analysis to show a significant correlation between a creation belief and a biblical worldview across the different education groups.360 Writing for ICR in 2002, Deckard reported on Ray’s research, stating, “it can be concluded that a positive correlation is present between having a Biblical theist worldview and mode of education.”361 This point affirmed the central premise of Nehemiah’s PEERS Test research. Deckard also summarized Ray’s work as it pertained to origins belief and worldview: Ray’s dissertation provides the Christian creationist community with strong objective and scientific evidence that teaching a Biblical view of origins is fundamental to worldview adoption and development. Training up a child in an environment of evolutionary thinking or in an environment where creationism is not firmly taught, is a certain formula for causing the child to depart from the Christian faith. Departure from this faith will lead to the acceptance of the only alternative, evolution. Few issues (Ed.D. dissertation, The Southern Baptist Theological Seminary), http://search. proquest.com/docview/251720796. 358 Id. 359 Steve Deckard, Curriculum Vitae (on file with author). 360 Ray, supra note 357. 361 Steve Deckard & Daniel Smithwick, High School Students’ Attitudes Toward Creation and Evolution Compared To Their Worldview, IMPACT no. 347, May 2002, at iv, http://www.icr.org/i/pdf/imp/imp-347.pdf.

could be of greater importance to the Christian family and the church than to teach youth (at home, school, or Sunday School) the Biblical doctrine of creationism.362 Arguments refuting evolution and supporting Intelligent Design and a biblical explanation of origins could be presented by a church co-op to refute and augment the curriculum of a public charter school. If the research of Ray and the assertion of Johnson is correct that materialistic evolution theory rests only on philosophical presuppositions and weak scientific data, which cannot withstand opposition if given a fair hearing, then a church coop’s ability to persuade on the issue of origins would be fundamental to its success in conveying a biblical worldview generally to middle and high school students. In 2014, this author published a dissertation at Talbot School of Theology at Biola University. This research offered a pilot study of eight students enrolled in a public charter school who also participated in a church co-op, which met on the same church facilities that were rented two days a week to the charter school. The co-op was expressly developed to convey a biblical worldview and met during regular school hours. The PEERS Test was administered before and after the 2011–2012 school year. The results of the PEERS Test indicated that with regard to conveying a biblical worldview the co-op out performed most private Christian schools and most Christian homeschooling families.363 A pilot study of eight students has limited statistical impact; however it does demonstrate that churches can have success in conveying a biblical worldview to students if they are willing to develop education experiences to augment charter school education. Of the eight students in the pilot study mentioned above, four came from expressly non-Christian homes. They were invited by Christian friends whom they met at the charter school. Although their parents did not believe the Bible was uniquely God’s revelation and did not attend a church that so believed, they did not object to a church attempting to persuade their children to adopt a biblical worldview. This illustrates the evangelical 362

Id. Steve Barke, Conveying a Biblical Worldview to Charter School Students: A Pilot Study 273–78 (2014) (unpublished D.Min. dissertation, Biola University) (on file with author).

363

potential of ministering to church families enrolled in charter schools. Nevertheless, the concept met with resistance from Christian’s supportive of traditional public schools and also Christians who subscribed to the Titus Doctrine. The results of the pilot study can be seen on the modified PEERS Trend Chart below (Figure 2). The results were divided into two groups based on the number of years each student participated in the church worldview co-op, a three-year group (3yr Group) and a one-year group (1yr Group).364 The score of 1yr Group began below traditional public schools and shot up 25 points to a worldview score above the traditional Christian schools’ average. 365 This meant that 1yr Group finished with an average score higher than the two forms of education that account for 90% of students raised in Christian homes based on Nehemiah. 366 The scores for 3yr Group began where traditional Christian schools averaged back in 1993 and shot up 18 points to above the average homeschool results.367

364

Id. at 275–78. Id. 366 Smithwick, supra note 315. 367 Barke, supra note 363. 365

PEERS Trend Chart with 3yr & 1yr Group

"Worldview"

100

Trad. Christian

Biblical Theism

90 80

HomeSchool Public school

Christian 'worldview' schools (< 5% of youth)

3yr Group

Home schools (2-3% of youth)



50 40

39 Before 2012

Traditional Christian schools (10-12% of youth)

30 20

After 2012

1yr Group Public schools (80-85% of youth)

19 After 2012

Humanism/Socialism

0 88

-6 98

 12 10 11

Before 2012

Figure 2. PEERS Trend Chart modified to show before and after results of the church worldview co-op one year and three year groups. Source Worldview Alliance with modifications by the researcher.368 The PEERS Test results of 3yr Group were divided into two subgroups of two based on students’ previous school experiences: two students previously attended public school (PrevPublic Group) and two students were homeschooled prior to their co-op experience (PrevHome Group).369 After two years of participating in the co-op, PrevHome Group began the year above the average homeschool score. The third year of coop participation moved this group up another 32 points above the average score of worldview-based Christian schools and nine points into the Biblical

368

Executive Summary, WORLDVIEW ALL. (2010), http://www.worldviewalliance.com/ ExecutiveSummary.php. 369 Barke, supra note 363.

Theism quadrant, which was comparable to many worldview minded Christian leaders tested by Nehemiah.370 Meanwhile, PrevPublic Group also continued to make significant gains. This group began its third year above the average of traditional Christian schools and significantly increased 15 points. PrevPublic Group moved from the Humanism quadrant to the Moderately Christian quadrant, but still finished significantly below the average homeschool score (see Figure 3). 371

370 Smithwick, supra note 315. The Biblical scholars consisted of individuals who wrote or taught on the subject of biblical worldview. Some of the well-known names among this group were Dr. Ronald Nash, Dr. George Grant, Douglas Wilson, Rev. Steve Schlissel, Dr. Jay Grimstead, Dr. Calvin Biesner, Bishop William Mikler, Dr. Jeff Myers, Dr. Carole Adams, Dr. David Ayers, and Dr. Henry Krabbendam. The full group was comprised of individuals from most major denominations, male, female, charismatic, and evangelical. 371 Barke, supra note 363.

PEERS Trend Chart

"Worldview"

with Prev. Homeschool & Public School

100 90 80

Trad. Christian HomeSchool

Biblical Theism Christian worldview' schools (< 5% of youth)

Previously Homeschoole d

3yr Group



Home schools (2-3% of youth)

Before co-op 2012:

Traditional Christian schools (10-12% of youth)

30 20

After co-op 2012:



Public schools (80-85% of youth)

Previously Traditional Public

3yr Group

After co-op 2012:

Humanism/Socialism

0 88

Before co-op 2012:

10 11 12

Figure 3. PEERS Trend Chart modified to show before and after results of previously homeschooled and previously public school students. Source Worldview Alliance with modifications by the researcher.372 Final Conclusions and Recommendations The position of law professor Herb Titus is that the Bible prohibits government from engaging in education, which this article refers to as the “Titus Doctrine.” This article argues that churches and Christian families should not limit themselves by the Titus Doctrine as they respond to the discipleship crisis which is occurring as their youth transition into adulthood and away from church. 372

Executive Summary, supra note 368.

The Titus Doctrine is problematic because it relies on faulty exegesis of the Bible and ignores church history. It is a separatist reaction to the change in the de facto religious philosophy in American courtrooms and classrooms. It was developed by Christian Reconstructionism (AKA Theonomy or Dominion Theology) which maintains that ancient Mosaic Law should be imposed in Christian nations. This is a narrowly accepted biblical interpretation, which excludes Evangelical denominations that regard the Protestant reformers as genuine contenders for the faith. The Titus Doctrine accepts and perpetuates the secular/sacred dichotomy, which is an expression of an Epicurean or Darwinist worldview. The secular/sacred dichotomy is promulgated by SCOTUS, as expressed in its twentieth century Doctrine of Separation of Church and State. So while the Titus Doctrine objects to Separation of Church and State rulings, it unwittingly accepts the categorical premise of those rulings. The Titus Doctrine assumes that government in a pluralistic culture must be secular and education of the young is sacred. This assumption is at variance with church and American history. McCarthy et al. identify the problem: As long as the artificial secular-religious distinction dominates both judicial reason and public attitudes, full equality between public and nonpublic schools will remain effectively blocked. In point of fact, however, the public schools, far from being religiously neutral, do endorse and exhibit religion, the religion of naturalistic humanism.373 Charter school reform may provide churches opportunities to navigate a way around the block caused by the secular/sacred dichotomy without having to wait for judicial reasoning and public attitudes to change on this point (A change not likely to come about as long as an Epicurean philosophy is the exclusive worldview influence in public education). Churches must effectively impact public education, in accordance with the traditions of the American founders and the Reformation, or the block caused by judicial reason and public attitudes will not change. This article applauds the many private Christian schools and homeschool efforts that have resulted from those following their convictions and the Titus Doctrine. However, a dogmatic adherence to the 373

MCCARTHY ET AL., supra note 267, at 107.

Titus Doctrine may prevent churches from exploring opportunities arising from charter school reforms. Churches that follow the Titus Doctrine point parents to private Christian schools and homeschooling exclusively. This article argues that churches ought to seek to influence the educational experiences of middle and high school students in all forms of education, including public schools. Insular and separatist, the Titus Doctrine lacks the Spirit of the Great Commission which urges the Church to go and disciple the nations. It will never be able to reach and persuade the public to abandon the secular/sacred dichotomy or view education of youth as a purely sacred activity, in which government has no legitimate interest. Nehemiah estimates that 85% of church going families choose to send their children to public schools where a biblical worldview is prohibited by state laws and federal court rulings.374 Also, Nehemiah research indicates that 95% of private Christian schools fail to convey a biblical worldview to students successfully, as do 92% of Christian homeschooling families. 375 This led Dan Smithwick (founder of Nehemiah and adherent of the Titus Doctrine) to acknowledge, “It is clear that the Christian school movement of the past 40 years and the homeschooling movement of the past 20+ years are having only marginal impact on the next generation of the Christian community.”376 There is a discipleship crisis in American churches today. Both the Titus Doctrine and this article agree that much is at stake, and churches must urgently address this crisis. The research data is clear: churches are failing to convey a biblical worldview based on Barna’s six basic questions, and the data generated by Nehemiah and ARG. The vast majority of “twentysomethings” raised in Christian homes are disengaging from church and Christianity.377 Research by Nehemiah and ARG indicate that for most Americans, worldview is determined by educational experiences rather than church or family practices. Research by NSYR shows that American public schools effectively inculcate young people of all faiths into a quasi-religion, which Smith calls Moralistic Therapeutic Deism (MT-Deism).378 Nehemiah’s research indicates that the vast majority of private Christian schools follow the same worldview trends as most public schools, and very 374

Smithwick, supra note 315. Id. 376 Smithwick, supra note 308. 377 Most Twentysomethings, supra note 306. 378 Smith, supra note 333. 375

few homeschool students develop a solid biblical worldview. Churches must prayerfully and practically consider how to respond to this situation. Pearcey describes the problem: Not only have we “lost the culture,” but we continue losing even our own children. It’s a familiar but tragic story that devout young people, raised in Christian homes, head off to college and abandon their faith. Why is this pattern so common? Largely because young believers have not been taught how to develop a Biblical worldview. Instead, Christianity has been restricted to a specialized area of religious belief and personal devotion.379 Churches cannot hope to climb into a time machine and live in the world of colonial America or the Reformation. Churches must develop new strategies to reach people at the time and place when the worldview of the masses is being formed: educational experiences in public schools in middle and high school. Nash said it well, “It is not enough for Christians to have their own schools and be content with that. Christians have an obligation to do battle with the forces of secularism that have taken control of public schools and institutionalized a pagan religion in those schools.”380 Charter school reform may present new opportunities for churches to impact the educational experiences of the children in their congregations. Charter school reform is growing in California and many other states. It affords parents increased flexibility and an element of choice among competing forms of education. The popularity of charter schools is such that they are drawing students from private Christian schools, independent homeschooling and traditional public schools. Whether churches embrace or decry it; this reform will greatly impact the 85% of church attending families who chose to participate in public education. The Titus Doctrine notwithstanding, churches should develop new strategies to assist church families to make the most of the discipleship opportunities that result from the more flexible educational experiences and scheduling of charter schools. As Smith of NSYR concluded:

379 380

PEARCEY, supra note 201, at 19. NASH, supra note 155, at 129.

[One] way or another, religious communities that are interested in the faith formation of their youth simply must better address the structural competition of other, not always supportive institutional activities. This will likely require developing new and creative norms, practices, and institutions appropriate to specific religious situations and traditions.381 This article recommends a strategy whereby churches develop educational co-ops aimed at middle and high school students who could attend them, even while they are enrolled in public charter school. If such church run co-ops remain intentional about conveying a biblical worldview, they could be more successful at discipleship than most private Christian schools and homeschooling efforts have been, as reflected in the Nehemiah data. One could envision how such co-ops could assist families who privately homeschool or attend Christian school, but are failing nevertheless to convey a biblical worldview. By parental invitation churches are able to impact education in a manner that is separate and coextensive with the services of charter schools, the fastest-growing and most dynamic form of public education.382 After years of being legally excluded from most aspects of public education, a window of opportunity is being opened by charter school reforms. This opportunity is especially ripe when public charter schools are eager to rent church facilities. The mission field is knocking on church doors asking to once again make church facilities the locus of education and community gathering. Paul’s words to the Ephesians come to mind: “Wake up, sleeper, rise from the dead, and Christ will shine on you.” Be very careful, then, how you live—not as unwise but as wise, making the most of every opportunity, because the

381

SMITH & DENTON, supra note 329, at 270. Richard Buddin, The Impact of Charter Schools on Public and Private School Enrollments, 707 POL’Y ANALYSIS 2, CATO INSTITUTE (August 28, 2012), http://www.cato.org/sites/cato.org/files/pubs/pdf/PA707.pdf. 382

days are evil. Therefore do not be foolish, but understand what the Lordâ&#x20AC;&#x2122;s will is.383

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Ephesians 5:14â&#x20AC;&#x201C;17.

APPENDIX I: Letter from Gibbs Law Firm

APPENDIX II: Letter from Liberty Counsel

LOS ANGELES TURF CLUB AND ELANE PHOTOGRAPHY: JUSTIFICATION FOR ACTS OF CONSCIENCE IN VIOLATION OF THE CALIFORNIA UNRUH CIVIL RIGHTS ACT SEAN BIEL* I. Introduction The boost to pre-Civil War North American free market society business owners began with Justice Story’s majority opinion in Jencks v. Coleman.1 The North was pro-free market, pro-business, having boasted more than two-thirds of the railroad tracks in the country, and birthing many large cities—such as New York.2 Justice Story held that, Proprietors . . . have the right to] . . . provide for their own interests in the management of [their property], as a common incident to their right of property; They are not bound to admit passengers on board [who are disruptive or whose character is doubtful, dissolute] or suspicious, and a fortiori, whose character is unequivocally bad.3 After the Civil War, America struggled to integrate and assimilate; and, though business owners enjoyed much discretion in whom they served, discrimination continued to be a pervasive presence in America, prompting legislation to curb civil rights violations. Pre-dating California’s 1959 Unruh Civil Rights Act (hereinafter “UCRA”) and long departed from the *

J.D. 2015, Trinity Law School. Jencks v. Coleman, 13 F. Cas. 442, 443 (C.C.D.R.I. 1835). 2 Saving America’s Civil War Battlefields, North and South: Different Culture, Same Country (2014), http://www.civilwar.org/education/history/civil-war-overview/ northandsouth.html 3 Coleman, 13 F. Cas. at 443 (adding “Nor are they bound to admit passengers on board, whose object it is to interfere with the interests or patronage of the proprietors, so as to make the business less lucrative to them”). 1

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Story Court, the California Supreme Court’s 1951 decision in Los Angeles Turf Club 4 provided two developing themes in the subsequent violation of California Civil Code sections 51 and 53.5 The themes involve the construction and application of sections 51 through 54 of the Civil Code,6 whereby section 51 was later codified into the Unruh Civil Rights Act.7 With few exceptions, for well over a century, many states have prohibited discrimination on the basis of race, religion, national origin, and other personal characteristics by establishments which constitute “public accommodations.”8 California’s public accommodations statute, the UCRA, prohibits discrimination in “all business establishments of every kind whatsoever.”9 “Business establishments” and “non-business establishments” are further developed later. In Los Angeles Turf Club, the owner was found to be in violation of sections 51 and 53 of the California Civil Code due to his refusal to allow a patron to enter the club because of the owner’s belief that the patron was of “immoral character.”10 The problem presented by Los Angeles Turf Club is the diminution of a business owner’s discretion in protecting his patrons (and business) from persons who do not live by an acceptable code of conduct in society. Businesses should be allowed to deny service to patrons whom the business finds morally reprehensible for the safety of other patrons. Whereby, age and economic discrimination will later be demonstrated as exceptions to the UCRA, this paper posits a “character discrimination” exception that further protects business owners.

Orloff v. Los Angeles Turf Club, 36 Cal. 2d 734 (1951). CAL. CIVIL CODE §§ 51, 53 (West 2013). 6 Los Angeles Turf Club, 36 Cal. 2d at 735. 7 CIVIL § 51. 8 “Public accommodations,” as used in these statutes, refers to any goods, services, or facilities provided to the public by any establishment such as a hotel, bar, restaurant, store, place of entertainment, or public conveyance. 9 CIVIL § 51 (West 2013). 10 Los Angeles Turf Club, 36 Cal. 2d at 741. See also CIVIL §§ 51–54 (West 2013) (sections 52 and 54 merely prescribed the liability of persons who deny such accommodations and privileges). 5

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Though the business owner enjoys some power, he may only exclude or eject a person with good cause.11 “Good cause” is fraught with ambiguity, and has generally been held to be “reactionary”—meaning, a person must force the owner’s decision.12 Also, certain businesses retain the right under the UCRA to establish reasonable regulations that are rationally related to the services performed and facilities provided.13 However, reasonable is viewed very narrowly and has never applied to personal characteristics or character.14 The current business owner does enjoy power but not a satisfactory allotment. Moreover, modern business owners have a duty to protect their guests but are not afforded lawful power to reasonably discriminate against those whom the owner deems to pose a threat to guests. The aim of this article is to provide for a justification for acts in violation of the UCRA, expressly, the denial of service to patrons based upon their character. This article shall endeavor to provide a historical background of the prohibitive legislation, looking at both protected entities and business owner rights; then it will assess the errors of the Los Angeles Turf Club holding, looking at the evidentiary support requirement and the subsequent eroding of business owners’ interest in protecting the public; following an “errors” analysis, it will incorporate an analysis of the Elane Photography case, specifically drawing attention to the proposed character exception’s corollary with the defendant’s argument concerning the denial of service to a homosexual patron.15 11

Stoumen v. Reilly, 37 Cal. 2d 713, 716 (1951) (providing that a proprietor of a restaurant and bar has no right to exclude or eject a person without good cause). 12 In re Cox, 3 Cal. 3d 205, 217 (1970) (providing that good cause may be established by a disruption of business, injury to patrons, or damage to property). 13 Lazar v. Hertz Corp., 69 Cal. App. 4th 1494, 1502–04 (1999) (providing that, a minimum rental age of 25 is reasonable and thus not arbitrary under the Unruh Civil Rights Act). See, e.g., Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1148 (1991). 14 Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283, 1333 (1996). See, e.g., Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 725 (1982). 15 Elane Photography, LLC v. Willock, 2013-NMSC-040 (2013) (a protected class under the New Mexico Civil Rights Act, which is virtually identical to the California UCRA).

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II. Historical Background After the Civil War, the nation faced the enormous problem of reintegrating both the Southern states and the newly freed slaves into the national fabric of the United States.16 This process required enormous changes in law, custom, and conceptions of morality and social relations, both in the North and the South.17 In some ways, public accommodations law constituted a minor aspect of this complicated story, starting in the 1840s, and continuing through the 1870s and 1880s, through Plessy v. Ferguson18 in 1896 and beyond, the law of public accommodations formed a central battleground in the fight to create a new nation after the Civil War.19 The Civil Rights Act of 1875 provided that common carriers, innkeepers, and others who furnished services and facilities to the public were required to serve all persons without unreasonable discrimination.20 “Unreasonable” was subjective and open to interpretation, and discrimination persisted, even The Civil Rights Act of 1875 was interpreted by lower federal courts as authorizing segregation as a reasonable regulation of the business.21 Supporting such contention, in W. Chester & P. R. Co. v. Miles,22 Justice Agnew posited the idea that, “businesses could implement reasonable regulations based both on the owner’s “right of private property in the means of conveyance, and the public interest.”23

Singer, supra note 14, at 1302. Id. at 1333. 18 Plessy v. Ferguson, 163 U.S. 537 (1896). 19 Id. 20 See, e.g., In re Cox, 3 Cal. 3d 205, 212 (1970) (recognizing that at common law, establishments ‘affected with a public interest’ were obligated to serve all customers on reasonable terms without discrimination and the duty to provide the kind of product or service reasonably expected from their economic role). 21 Singer, supra note 14, at 1353. 22 W. Chester & P. R. Co. v. Miles, 55 Pa. 209 (1867). 23 Id. at 210. 17

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The failure of the legislation to eliminate ambiguity from the various civil rights acts (and take a hardline stance on discrimination) resulted in litigation where courts wrangled with defining vocabulary such as “discrimination,” “business establishments,” and “immoral character.”24 Which was problematic insomuch that, often, judges were “writing the law” (not the legislators elected to craft laws). The clear foundation of the various Civil Rights Acts25 and public accommodation statutes is to provide citizens with equal rights,26 and business owners who deny service to patrons are subject to sanctions.27 Jim Crow laws of the late 1880s brought to head the issue of racial segregation and the slow crawl to desegregation began with the 1896 Plessy 24

“Discrimination” has been defined as the “differential treatment of individuals or groups of individuals on the basis of categorizations which have no relation to individual capacities or ... behavior.” Caldwell, State Public Accommodations Laws, Fundamental Liberties and Enforcement Programs, 40 WASH. L. REV. 841, n.1 (1965). The term “business establishments” in California’s Unruh Civil Rights Act must properly be interpreted in the broadest sense reasonably possible. Stevens v. Optimum Health Institute–San Diego, 810 F. Supp. 2d 1074 (2011). The term “immoral [character]” has been defined generally as that which is hostile to the public welfare and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare. Orloff v. Los Angeles Turf Club, 36 Cal. 2d 734, 741 (1951). 25 Civil Rights Cases, 109 U.S. 3 (1883) (providing that these cases are all founded on the first and second sections of the act of Congress known as the “Civil Rights Act,” passed March 1, 1875 and entitled “An Act to protect all citizens in their civil and legal rights”). 26 The earliest public accommodations statute was enacted in Massachusetts in 1865. Act of May 16, 1865, ch.277. For a history of the Massachusetts statute, see Fox, Discrimination and Antidiscrimination in Massachusetts Law, 44 B.U. L. REV. 30, 58-60 (1964). Today, public accommodations laws are in force in forty states and the District of Columbia. States with no public accommodations laws are Alabama, Arkansas, Florida, Georgia, Hawaii, Mississippi, North Carolina, South Carolina, Texas, and Virginia. 27 CAL. CIVIL CODE § 52(a) (West 2013) (provides for a civil action against “[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to” the Unruh Civil Rights Act).

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v. Ferguson case where minor Negro plaintiffs sought to obtain admission to public schools on a non-segregated basis.28 Though the court affirmed the constitutionality of the separate but equal doctrine, Plessy v. Ferguson simmered to a boil for about fifty years before finally being overturned by Brown v. Bd. of Ed. of Topeka, Shawnee County in 1954.29 In 1893, the California Legislature enacted what would later become Sections 53 and 54 of the California Civil Code.30 Section 53, however, did not specifically refer to race, religion, or national origin; it was all inclusive, providing that the proprietor could not refuse admission unless the person excluded was drunk, boisterous, or of lewd or immoral character.31 The list of affected establishments was modest at the time but through codification it has broadly expanded. Somewhat restrictive, Sections 53 and 54 were extended only to “persons over twenty-one years of age.”32 In 1897, the Legislature enacted what would later become Sections 51 and 52 of the California Civil Code.33 Sections 51 and 52 prohibited all

Plessy v. Ferguson, 163 U.S. 537, 538 (1896) Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954) (holding that “Segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities, in contravention of the Equal Protection Clause of the Fourteenth Amendment”). 30 Section 53 made it unlawful for the proprietor . . . of any opera house, theater, melodeon, museum, circus, caravan, race course, fair or other place of public amusement or entertainment, to refuse admittance to any person over the age of twenty-one years, who presents a ticket of admission acquired by purchase or who tenders the price thereof for such ticket, and who demands admission to such place. Any person under the influence of liquor, or who is guilty of boisterous conduct, or any person of lewd or moral character, may be excluded from any such place of amusement. Section 54 provided for recovery of actual damages. 31 CIVIL § 53. 32 CIVIL §§ 53–54. 33 Section 51 was the Public Accommodation statute; it provided that: 29

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discrimination, specifically sex, race, and color,34 except that for “good cause.”35 The general policy embodied in Section 51 can be traced to the early common law doctrine that required a few, particularly vital, public enterprises, such as privately owned toll bridges, ferryboats, and inns to serve all members of the public without arbitrary discrimination.36 More restrictive than Sections 53 and 54, Sections 51 and 52 were extended only to “citizens.”37 Moving into the 1960s, many states still had no public accommodations statue,38 and it wasn’t until Congress enacted Title II of the Civil Rights Act of 1964, which then guaranteed equal access to places of public accommodations.39 As for California, prior to the enactment of the

All citizens within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Section 52 provided for the recovery by a person discriminated against of “damages in an amount not less than one hundred dollars.” 34 CAL. CIVIL CODE §§ 51–52 (West 2013). 35 Stoumen v. Reilly, 37 Cal. 2d 713 (1951) (holding that the proprietor has no right to exclude or eject a patron ‘except for good cause,’[under sections 51 and 52] and if he does so without good cause he is liable in damages). 36 See, e.g., Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State, 55 CAL. L. REV. 1247, 1250 (1967). 37 CIVIL §§ 51–52 (West 2013). 38 Congress had considered the fact that only 32 states had public accommodations statutes. See, U.S. CODE CONG. & AD. NEWS 2355, 2368 (1964). 39 Title II prohibits discrimination based on race, color, religion, or national origin. 42 U.S.C. § 2000a(a) (1976). It also prohibited discrimination or segregation in any place of public accommodation but defined a place of public accommodation to include only establishments which provide lodging for transient guests, facilities which sell food for the consumption on the premises, gasoline stations, places of exhibition or entertainment, and any establishment located in or within the same premises as any other covered establish-ment and which holds itself out as serving patrons of the covered establishment. 42 U.S.C. § 2000a(b)(1)-(4) (1976).

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UCRA, its courts held that the statute was to be liberally construed.40 Because of the holdings of several cases in the 1950s,41 the California legislature sought to revise the statute. In 1959, the California legislature introduced the Unruh Civil Rights Act,42 where the clear intent of the legislature was to increase the number of places where discrimination was prohibited.43 The result of the Act forbade arbitrary discrimination in “all business establishments of every kind whatsoever.”44 As stated earlier, what constituted a “business establishment” caused great consternation in the courts. A. Who Are The Entities Protected By The UCRA? Due to the legislature’s failure to identify what constituted a business establishment, the courts have held that the term “business establishment” must properly be interpreted in the broadest sense reasonably possible.45 However, this ‘broad sense’ is not “all 40

See, e.g., Orloff v. Los Angeles Turf Club, Inc., 30 Cal.2d at 110, 113 (1947) (providing that although the statute was in derogation of the common law, it was to be “liberally construed with a view to effect its objects and to promote justice”). 41 Cases whereby the discriminating entity was held not to be a place of public accommodation or amusement: Long v. Mountain View Cemetery Ass’n, 130 Cal. App. 2d 328 (1955) (holding that the ‘cemetery’ was not a public accommodation); Coleman v. Middlestaff, 147 Cal. App. 2d Supp. 833 (1957) (holding that the “dentist’s office” was not a public accommodation); Reed v. Hollywood Professional School, 169 Cal. App. 2d Supp. 887 (1959) (holding that the “private school” was not a public accommodation). 42 CIVIL § 51 (West 2013). 43 See, e.g., In re Cox, 3 Cal. 3d 205, 214 (1970) (stipulating that “the Legislature became concerned that the Courts of Appeals, narrowly defining the kinds of businesses that afforded public accommodation, were improperly curtailing the scope of the public accommodations provisions”). 44 CIVIL § 51 (West 2013). 45 Stevens v. Optimum Health Institute–San Diego, 810 F. Supp. 2d 1074 (2011) (providing that the very broad ‘business establishments’ language of the UCRA reasonably must be interpreted to apply to the membership policies of an entity, even a charitable organization that lacks a significant business-related purpose, if the entity’s attributes and activities demonstrate that is the functional equivalent of a classic place of public accommodation or amusement).

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encompassing.” In addition to the particular forms of discrimination specifically outlawed by the UCRA (sex, race, color, etc.), the Act prohibits discrimination based on several classifications which are not specifically enumerated in the statute, such as unconventional dress or physical appearance, families with children, homosexuality, and minors.46 Such persons have been provided additional protection (and think nothing more of it), yet business owners have maintained minimal protections and have all of the liability (and contemplate it daily) – which is problematic. It is problematic because the clear intent of the legislature in enacting the UCRA was to increase the number of places where discrimination was prohibited; the collateral concern for patron safety was overlooked. Living in the litigious world that we do, business owners are often defendants in lawsuits which could likely have been avoided, which is quite demoralizing for a business owner. In a 1969 case, Daniel v. Paul,47 Justice Brennan held that a snack bar located in a privately owned recreational facility which was principally engaged in selling food for consumption on premises, which served interstate travelers and served food that moved in commerce, was a covered “public accommodation” within Civil Rights Act of 1964.48 Comically, a “privately owned” recreational facility was distinguished from a “private social club,” which was found in Warfield v. Peninsula Golf & Country Club to not constitute a “business establishment” within the meaning of the UCRA.49 This comical distinction found Congress specifically excluding 46

Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917 (2003). Daniel v. Paul, 395 U.S. 298 (1969). 48 Id. 49 Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995) (providing that in enacting the public accommodation provisions of the historic, federal Civil Rights Act of 1964, Congress specifically excluded private clubs from the reach of the statute [See 42 U.S.C. § 2000a(e)], and truly private social clubs also generally have been excluded— either by explicit statutory exemption or by judicial interpretation—from the reach of the public accommodation statutes enacted in other states. See, e.g., United States Jaycees v. McClure, 305 N.W.2d 764, 771 (Private associations and organizations—those, for example, that are selective in membership are unaffected by the Minnesota public accommodations statute (MN. 1981)). 47

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private clubs from the reach of the statute because they are “selective in membership,”50 which seems conveniently arbitrary. The reach of the UCRA at the very least covers a sizeable percentage of business establishments.51 Though the UCRA has a broad reach, the Congressional intent calls for a reduced application. The failure to mandate blanket coverage to all persons patronizing all establishments reflects both the need for a less ridged standard, and the willingness to allow for exceptions. In fact, the legislative history has maintained that the application of the civil rights acts has been aimed at “business” establishments,52 which is clearly narrower than “all” establishments. Even by its own simplistic nomenclature, “public accommodations” and “business establishments” can be distinguished from private and non-business establishments.53 It is conceivable that if there is both a need for a less ridged standard and a willingness to allow for exceptions—the business owner should be the beneficiary of UCRA ‘leniency.’ B. Given The Duty An Owner Owes Its Guests, What Are The Rights Of Business Owners? Having discussed the rights of protected entities, the crux of this essay is the rights of business owners. Business owners have been at odds with courts over the discretion they exercise over their “business judgments” and their proverbial “hand-cuffing.” It is well known what business owners can do under the UCRA, but it’s what they can’t do, which is problematic. Whereby a landowner’s duty to others is to make reasonable 50

Id. The UCRA’s reach falls short of cemeteries and private schools. 52 Civil Rights—Discrimination, 1987 CAL. LEGIS. SERV. 159 (West 2013) (providing that the Act was designed to prohibit intentional discrimination by business proprietors in provision of public accommodations). 53 Stevens v. Optimum Health Institute –San Diego, 810 F. Supp. 2d 1074, 1086 (2011) (providing that Private’ groups and institutions do not fall prey to the Act simply because they operate “nongratuitous” residential or recreational facilities for their members or participants; an accommodation must be “public” to be covered). 51

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inspections to discover concealed dangerous conditions and warn of or make them safe,54 the landowner clearly owes a greater duty to invitees (guests) than that of a licensee (a guest conducting business for their own purpose rather than for the landowner’s benefit).55 As it stands, a business owner cannot exclude or eject (1) persons who are on Megan’s law sexoffender list; (2) sexual predators (perhaps a woman was the victim of a rape and the assailant is out on bail while on trial); (3) persons who are felons, especially violent felons; (4) known thieves; or (5) persons who have bad reputations (scam-artists).56 Mindful of the business owner’s duty to their guests, it should come as no surprise that they want to protect their guests, and that owners are in a better position to identify concealed dangerous conditions, so as to warn of or make safe, because the patrons are ‘unsuspecting.’ Patrons come from everywhere, and likely do not know about “Tommy—the sex offender,” or “Mike—the raucous drunk,” or “Samantha—the prostitute,” or “Dale—the pickpocket,” but the owners might, and the neglect of this knowledge can lead (and historically has) to disaster.57 Justice Spence discussed the “common knowledge” that many of such places (of public accommodation) are patronized by men and women, as well as small children, and that the records of the courts are abound with the criminal prosecutions of those who made their “advances” upon victims in such places.58 One would think that a business owner would be able to protect his guests from theft, sexual assault, and battery by disallowing those he knows or has reason to know is of immoral character. The ability to control one’s business is paramount and courts have actually been flexible in assigning business owners power to discriminate. In Lazar v. Hertz Corp., at issue was the proscription of renter’s minimum 54

RESTATEMENT (SECOND) OF TORTS § 342 (1965). Id. § 343a. 56 Okla. Att’y Gen. Op. No. 02-31 (July 22, 2002). 57 Civil and criminal law is replete with negligence cases originating from business establishments. 58 Orloff v. Los Angeles Turf Club, 36 Cal. 2d 734, 742–43 (1951). 55

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age.59 The court held that “businesses retain the right under the UCRA to establish reasonable regulations that are rationally related to the services performed and facilities provided.”60 What Hertz Corp. can now say is, rationally related to the safety of motorists and pedestrians, if you are not 25, we will not rent you a vehicle. In Harris v. Capital Growth Investors XIV, the issue concerned “economic” discrimination where Mrs. Harris challenged Capital Growth Investors minimum income policy.61 The court held that, “minimum income requirements that the landlord imposes evenhandedly on all prospective tenants does not violate the Unruh Civil Rights Act.”62 What Capital Growth Investors can now say is, rationally related to economic safety and stability (and unnecessary costly litigation), if you cannot meet the financial requirements stipulated by company rules, then we will not rent or lease to you. These cases have been considered controversial because the court held in 1982 that “the [UCRA’s] language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments,”63 where age and economic (and presumably, character) discrimination seem wholly arbitrary. The Capital Growth Investors XIV case in 1991 cleaned up this “arbitrary” confusion in stipulating that, Despite the listing of specific types of discrimination in the statute, we concluded that the Unruh Act prohibited all “arbitrary discrimination by a business enterprise,” and that the holdings in specific prior cases have reflected the 59 Lazar v. Hertz Corp., 69 Cal. App. 4th 1494 (1999) (providing that age discrimination [when renting a car] is reasonable and thus, not arbitrary under the UCRA). 60 Id. 61 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (1991) (providing that UCRA does not prohibit all arbitrary discrimination by business enterprises, even that which is based on factors other than personal, noneconomic characteristics, such as race, color and sex, specifically identified in the Act). 62 Id. 63 Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 725 (1982)

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[business owner’s] right to establish reasonable regulations that are rationally related to the services performed and the facilities provided.64 Character discrimination can conceivably be a reasonable regulation to a bar and restaurant guests, as their safety is paramount—akin to the safety of motorists who Hertz aims to protect—and similar to the economic safety of persons and banks who Capital Growth Investors aim to protect. Delving into the business owner’s “good cause” exclusion, the holding in Los Angeles Turf Club was not favorable to the business owner who sought to exclude a patron on good cause grounds,65 and Stoumen v. Reilly also pressed the good cause exception to the UCRA and lost.66 Though similar in fate, the difference between the two holdings rests upon the differing criteria of the time: whereas the Los Angeles Turf Club court focused on ‘conduct while on the premises,’ Reilly focused on ‘personal disdain’ for homosexuals. Clearly, good cause is a subjective standard but the courts have viewed it objectively and have provided a very narrow criteria for which good cause can be substantiated.67 As stated before, it is generally a “reactive” exception. In a small victory for business owners, the seminal case Hessians Motorcycle Club v. J.C. Flanagans, saw the owner deny admittance to members of the Hessian Motorcycle Club (MC) who refused to remove their “colors” (a patch on the jacket signifying membership in the club) before

Capital Growth Investors XIV, 52 Cal. 3d at 1152. Orloff v. Los Angeles Turf Club, 36 Cal. 2d 734, (1951). 66 Stoumen v. Reilly, 37 Cal. 2d 713 (concluding that the State Board of Equalization could not suspend the liquor license of a restaurant that catered to gay patrons—no good cause). 67 See, e.g., Semler v. Gen. Elec. Capital Corp., 196 Cal. App. 4th 1380, 1383 (2011) (concluding that being a felon is not a personal characteristic similar to those enumerated in the Act); Wynn v. Monterey Club, 111 Cal. App. 3d 789, 796–97 (1980) (concluding that, wife’s conduct in issuing the insufficient funds checks provided legal justification for barring her from the clubs until such time as the debt to them was satisfied). 65

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entering.68 Reading deeper into the case, it becomes apparent that the owner allowed his restaurant to become the hang-out for the MC (though he claimed that no fights between rival motorcycle gangs ever occurred at J.C. Flanagans). He likely wanted or needed to make changes in his business for its survival and success; perhaps he felt his patronage was poor, due to the presence of the MC, or maybe he wanted to legitimize his restaurant as ‘wholesome,’ so as to bring in more children. At any rate, guided by business decisions or compulsion by his duty to protect his patrons, and perhaps, the livelihood of his business, J.C. Flanagans owner excluded the Hessians “wearing their colors” from entry to his business. The sympathetic court found in favor of the owner and reasoned that the good cause exception was held to serve a legitimate commercial objective of preventing fights between rival gang members in the form of typically costly barroom brawls.69 Whereby a business owner yearns to have the power to exclude those persons who he feels is of immoral character (which seems to be the most logical and reasonable manner in which to protect patrons), but doesn’t—the owner of J.C. Flanagans won a coup. He reduced his measure of discriminatory action to a patch—which seems wholly illogical. A business owner cannot exclude a person who is on Megan’s Law sexoffender list, but he can exclude a person wearing a patch that “signifies trouble”? A business owner cannot exclude a sexual predator, but he can exclude a person wearing a patch that “signifies trouble”? A business owner cannot exclude a known thief, but he can exclude a person wearing a patch that “signifies trouble”? A business owner cannot exclude a violent felon (due to perceived propensities for recidivism), but the second he puts on that patch, he can? Likely a fairly petty reason for excluding someone from a business establishment, the positive that can be taken away is that this business owner bypassed the losing argument of “these guys (Hessians MC) (personally) look like trouble—and went with “they represent trouble,” 68

Hessians Motorcycle Club v. J.C. Flanagans, 86 Cal. App. 4th 833 (2001) (providing that the UCRA did not prohibit the owner from denying admittance to members who refused to remove their “colors”). 69 Id.

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where the court took kindly to his reasoning “in the name of safety.”70 It does not seem too unlikely to fairly analogize a visibly “trouble evoking patch” to a visibly “trouble evoking person.” III. Errors of Los Angeles Turf Club That Exposed The Challenge To Business Owners Rights The Los Angeles Turf Club holding in 1951 found the owner of a racetrack club in violation of the UCRA for disallowing entry to a patron whom the owner felt to be of ‘immoral character.’71 To the business owner’s avail at that time were defenses of ‘good cause,’ and that defendant was of ‘immoral character,’ but the good cause defense was not applicable; Mr. Orloff would have had to first do something violative of the track rules in prompting exclusion or expulsion.72 The travesties of this case are found in the requirement of evidentiary support of Mr. Orloff’s ‘character,’ and the eroding of the business owner’s interest in protecting his patrons. A. The Requirement of Evidentiary Support Is Not Practical Where the owner of the Los Angeles Turf Club felt that patron Orloff was of immoral character, due to the his profound understanding of Mr. Orloff’s background,73 demonstrating reasonably substantial knowledge of Mr. Orloff’s character (as opposed to a capricious act of discrimination based upon a possible misbelief), the court concluded there was no evidence that any of the alleged violations were committed on premises, effectively adding a new requirement to a discriminating party’s burden of proof.74 Also, there was no evidence Mr. Orloff conducted himself in an improper manner.75 What is problematic here is, the necessity 70

J.C. Flanagans, 86 Cal. App. 4th at 833. Orloff v. Los Angeles Turf Club, 36 Cal. 2d 734 (1951). 72 Id. at 736. 73 Id. In substance, the following evidence is relied on by the defendant; that between 1929 and 1939 [Mr. Orloff] was convicted in seven cases of various misdemeanors stemming from chart possession, illegal gambling, and bookmaking. 74 Id. at 738–39. 75 Id. at 736. 71

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to ‘prove’ Mr. Orloff’s immoral character, where such character was wellknown to the owner and law enforcement.76 Furthermore, demonstrating immoral character may be impractical, if a totality of the circumstances is overlooked. The facts of the case were uncontroverted. The testimony of two police officers who investigated Mr. Orloff’s reputation was that he was reputed to be a bookmaker and operating a bookmaking business; that at the time of the incident he was not known as a bookmaker, but as a gambler, and that his place of business was known as a congregating place for professional gamblers and bookmakers; further, that Mr. Orloff had past convictions of offenses pertaining to gambling and bookmaking, as well as hearsay evidence of his reputation.77 The officers painted a clear picture that Mr. Orloff had involvement with illegal gambling. Even with this seeming mountain of evidence, the California Supreme Court, in a departure from Coleman,78 found a way to dismiss the officers’ testimony, despite the trial court’s finding that Mr. Orloff had a reputation as a man of immoral character, was a known undesirable, and a person guilty of conduct detrimental to racing and to the public welfare! Their holding virtually maintained that the business owner must catch the individual “redhanded,”79 which does not fare well for patrons, as the holding intimates that a patron (or employee) would first need to be victimized before the business owner can characterize the person as immoral. If the intent of civil rights legislation is to provide accommodations to all persons, in conjunction with balancing business owner’s rights (to the extent that they can establish reasonable regulations that are rationally 76

Id. Id. at 736–37. 78 Jencks v. Coleman, 13 F. Cas. 442, 443 (C.C.D.R.I. 1835). 79 Los Angeles Turf Club, 36 Cal. 2d at 738 (reasoning that “had there been evidence of his bookmaking on the racecourse, the [owner] would have been justified in ejecting and refusing admittance to [Mr. Orloff]; that the purported evidence of reputation was too remote as proof of immoral character; and that the evidence received as bearing on the question of reputation was incompetent as hearsay”). 77

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related to the services performed and the facilities provided), then handcuffing a business owner by mandating he allow a patron (or employee) be taken advantage of first—so that the owner can have ‘evidence,’ is preposterous and dangerous. B. What Is Eroding Business Owners Interest In Protecting Patrons? Owning and operating a business instills a duty to guests. This duty is to make reasonable inspections to discover concealed dangerous conditions and warn of or make them safe to guests.80 When a business owner cannot perform this duty, his patronage may suffer, he may be sued upon incident, and worse, the business may be lost. The inability to discriminate based on character erodes business owners’ interest in protecting patrons by being powerless over denying admission to a known criminal, thug, thief, etc. It is a slippery slope when business owners’ interests in protecting its patrons is hindered. Recall that, Justice Spence stated “the legislature was undoubtedly concerned with the safety and welfare of the attending public, and the general objective was the protection of others on the premises.”81 Mindful of Justice Spence’s dissent, it is seemingly reprehensible to allow individuals of known immoral character into an establishment where they can “operate” (e.g., prey on victims, start fights, steal, harass, etc.). The mandate that an owner have “proof on premises of immoral character” is counterintuitive to the duty of a business owner—especially an owner who is trying to be reasonably prudent. Even in victory, the business owner still laments an eroding interest in protecting patrons. In the Capital Growth Investors XIV case, the court held that the Unruh Act does not prohibit all arbitrary discrimination by business enterprises,82 which seems to permit some arbitrary discrimination, 80

RESTATEMENT (SECOND) OF TORTS § 342 (1965). Los Angeles Turf Club, 36 Cal.2d at 742–43. 82 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1148 (1991). 81

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but the “arbitrary” is conditional. Where the plaintiff challenged the defendant’s minimum income policy as arbitrary, the court found unacceptable that the landlord bears the economic burdens of default and found ‘economic discrimination’ to be justified.83 Without minimizing the terrible effect of the economic burden to a landlord of a debtor and the trickle-down problems associated with it, it is surprising that the California Supreme Court sought to protect landlords from economic burden, yet have failed to protect perhaps the most deserving people from economic burden, business owners. The Court gave deference to car rental services in protecting drivers and pedestrians,84 yet the restaurant that may be next door cannot protect its guests by excluding a known pedophile or scam-artist. In the wake of the Capital Growth Investors XIV case, courts have consistently followed a three-part analysis when determining whether discrimination which implicates a ‘new’ classification is prohibited by the Act.85 As ‘character’ would implicate a new classification of discrimination, the three-part analysis might ostensibly pass Constitutional muster, the biggest challenge would be in assessing its controvertability with the language of the UCRA. Where the UCRA stipulates that ‘business owners may not discriminate against race, religion, national origin, gender, sexual preference, and disabilities, a ‘character’ prohibition would seemingly not controvert any of the enumerated prohibitions as it would not render any of them invalid. Secondly, when assessing the legitimate business interests of the business owners, it is believably reasonable for them to want to protect their patrons and avoid unnecessary litigation, which would seem to comport with the legislators’ end goals of protecting the public and judicial 83 Id. (providing that economic burdens result from: (1) loss of income from default to eviction; (2) administrative time and the legal and other expenses incurred in the eviction process; and (3) the delays and expense of collecting back rent from the tenant, as well as the risk of noncollection). 84 Lazar v. Hertz Corp., 69 Cal. App. 4th 1494, 1502–04 (1999) (providing that a minimum rental age of 25 is reasonable and thus not arbitrary under the Unruh Civil Rights Act). 85 Capital Growth Investors XIV, 52 Cal. 3d at 1142 (providing a three-part analysis assessing: (1) the language of the statute, (2) the legitimate business interests of the defendants, and (3) the consequences of allowing the new discrimination claim).

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efficiency. The third part of the analysis concerns the consequences of allowing a new discrimination claim, which is a subjective assessment. The true question is whether the courts would see an overwhelming influx of cases to the detriment of judicial efficiency.86 It does not seem likely that there would be a sizeable number of petitioners to the court because, in taking into consideration who the petitioners would be, the strong majority would likely be persons who do have checkered pasts and it does not seem believable that these persons who have been denied entry to a business establishment would take to the courts to validate their moral character. The better-reasoned argument is that those who would petition the court would be those who believe the owner truly slighted the wrong person, egregiously. With this said, it is conceivable that there truly would not have a negatively impacting influx of petitions to the court. As such, the ‘character’ exception to the UCRA may pass the Capital Growth Investors XIV three-part analysis. The business owner also has the “good cause” exception at his disposal to exclude or eject someone from their establishment,87 but unfortunately, good cause is also conditional.88 In the Reilly case, the State Board of Equalization suspended the plaintiff’s liquor license under their “good cause” belief that the establishment was a hangout for homosexuals.89 The court held that absent any evidence of any illegal or immoral conduct on the premises, the State Board did not have good cause.90 “Feelings” about a patron is not good cause and “hearsay” about a patron is not good cause, which leave business owners with the power to exclude or eject only after incident, which undoubtedly creates a tremendous burden upon a victim who might have been protected.

Id. Stoumen v. Reilly, 37 Cal. 2d 713, 716 (providing that a proprietor of a restaurant and bar has no right to exclude or eject a person without good cause). 88 In re Cox, 3 Cal. 3d 205, 217 (1970) (providing that good cause may be established by a disruption of business, injury to patrons, or damage to property). 89 Reilly, 37 Cal. 2d at 714–15. 90 Id. at 716. 87

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Take for example the female guest who is brutally raped, and the suspected rapist frequented the restaurant (while free on bail); though he is innocent until proven guilty, he is merely a suspect. While his guilt is being adjudicated, he wants to enter the restaurant that the victim is at. It should be without hesitation that the suspect is disallowed from the restaurant, but under the UCRA (and the good cause exception), the owner would have to provide service—putting the female victim in a precarious position and the business owner in the likely position of losing a good patron—simply because the owner does not have evidence of the suspect’s immoral character. Allowing the suspect to gain access to the victim is reprehensible. Because the UCRA does not allow for a character discrimination exception, business owners are handcuffed in protecting their patrons from all of the unsavory-like people that have been previously identified. This erosion of business owners’ interest in protecting patrons unnecessarily exposes those owners to loss of business and lawsuits, and undermines the balancing of interests necessary to keep the peace. IV. How the Character Exception Would Apply Whereby a character exception may pass constitutional muster under the Capital Growth Investors XIV three-part analysis, the character exception would however, require criteria. This article presents a two-prong analysis for the application of such character discrimination. A character exception will apply where there has been a denial of service to another (1) where the owner has reasonably substantial knowledge of accused’s character, and (2) there is insignificant injury. A. Reasonably Substantial Knowledge of Plaintiff’s Character As the burden shifts to the defendant, perhaps the biggest question may concern the burden itself. Whereby this article presents the defendant’s burden to be “reasonably” substantial knowledge of a plaintiff’s character, the likely question may be what constitutes “reasonably.” Civil and criminal law present three different levels of “reasoning:” in civil cases, the burden

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is but a preponderance of the evidence (50.1% certain) which leaves open the possibility of considerable doubt in the defendant’s innocence. Analogous to a ‘more possible than not’ scenario, this burden maintains that a defendant provide a preponderance of evidence to merely overcome the doubt. This burden seems to logically fit the best because the business owner should not have to demonstrate that he had a mountain of evidence in his assessment that a patron is of immoral character. Likely, it would be insufficient for a business owner to maintain hearsay from a single person (unless this single person had tremendous firsthand knowledge of the patron’s immoral character), but if the business owner has heard from ‘enough’ patrons—this should suffice. After all, if a single patron or a multitude of patrons tells the owner that so-and-so makes them uncomfortable because he’s a violent drunk, or sexually harasses others, this should be enough to overcome the doubt associated with a claim that the business owner acted arbitrarily and capriciously. In both criminal and civil law, some burdens are to be of clear and convincing evidence (about 75% certain), which maintains that the defendant may still leave room for doubt, but it must be overborne by more than just a preponderance of the evidence. Here, the bar is set pretty high as the defendant business owner would need to really demonstrate that he had very good knowledge of the plaintiff patron’s character in discriminating against him. This is too high of a bar, namely for the reason previously alluded to—that the business owner should not have to provide a mountain of evidence of the plaintiff’s immoral character. Because a clear and convincing level of certainty calls for a defendant to likely provide concrete evidence of the plaintiff’s immoral character, this would likely prove futile in cases whereby the business owner was acting upon information provided from non-published sources. Akin to Los Angeles Turf Club, a travesty would be perpetuated if a business owner was required to prove someone’s immoral character—especially if it is well known. Lastly, in criminal law the burden is that beyond a reasonable doubt (90%+ certain), which maintains that all reasonable doubts be outweighed by the evidence presented. Because criminal law places a high value upon

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freedom, this is a very high bar, because of the need to outweigh all reasonable doubt. This here, is an unnecessary level of certainty again, because of the evidence required. Maintaining that the defending business owner need only demonstrate enough evidence to overcome some doubt, this article would be remiss to overlook a totality of circumstances. As stipulated above, whereby this article presents the defendant’s burden to be reasonably substantial knowledge of a plaintiff’s character, which is the lower, preponderance of evidence bar, this element’s requirement calls for something more than just a fleeting belief that someone is of immoral character. It should not be sufficient for a business owner to claim that a patron told me “my friend told me that this guy is a pickpocket,” or that by seeing a woman curse at someone in the parking lot, she has demonstrated conduct that would put patrons safety and person in danger. Reasonably substantial knowledge of a denied patron’s character is going to call for the business owner to merely demonstrate that he had a legitimate reason for denying service to a patron, by being able to point to reasonably articulable facts that provide a reasonable indication that the owner’s patrons need protection from. This will likely be the biggest hurdle for a defendant owner who seeks a character exception from UCRA violations B. The Plaintiff Has But an Insignificant Injury A party’s injury is always paramount, but reason should provide that if a party’s injury is insignificant or nominal, judicial resources should not be wasted in adjudicating such cases. In the modern, capitalist society that we live in, there are more options than ever in the marketplace. In the days of bygone, there may have been but one pharmacy or eatery in a given town, and a denial of service at one may have truly caused an injury. Nowadays, there are dozens of physical and virtual pharmacies (i.e. Internet), as well as eateries that may be lined up next to one another in succession on a given road. The question begged is, “is a party injured when the service they seek

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may literally be next door, across the street, or in the palm of one’s hand (i.e. Internet)? The legislative history of the UCRA intimates that it was the pernicious effects of discrimination which precipitated the legislation, and clearly the drafters’ intent was to protect those who have been aggrieved due to discrimination; but looking at the UCRA through a modern prism, can we continue to promulgate a law that is pro-consumer, when now the need should be pro-business owner? Businesses already have enough hurdles in their way to success, and in an era where a single lawsuit can destroy a multi-million dollar business, the power a single person wields is frightening. There is nothing but incentive for a ‘scorned’ patron to sue a business, because businesses nowadays (in an effort to succeed) don’t want negative publicity. Negative publicity often equates to reduced patronage, which often proves crippling for certain businesses. If a business owner, looking to violate the UCRA in an effort to protect her patrons, is sued by a denied patron, the owner really doesn’t have much of a defense, and likely is forced to settle. This, in the aggregate is problematic for businesses and owners alike. The modern business owner who has denied service to someone based on his reasonably substantial knowledge of the plaintiff’s character should be allowed to present to the court that a plaintiff suffered but insignificant injury in that the plaintiff could have just gone ‘next door, across the street, down the street, or via internet.’ This mitigation of injury should be assessed. If the denied patron truly could not get an item, a meal, or a service from another business establishment, then said patron may truly be ‘injured.’ But again, if this patron can obtain a comparable item, meal, or service from another business establishment, without much difficulty, then it seems inconceivable that they could maintain a suit for injury. The proposed two-prong analysis for a character exception to the UCRA modernizes the UCRA so as to reflect the current climate of societal need. It only allows for a business owner to discriminate against a person of a protected class when the business owner provides but a preponderance

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of evidence to merely overcome the doubt, by being able to point to reasonably articulable facts that provide a reasonable indication that the owner’s patrons need protection, and that the plaintiff’s injury is insignificant or nominal. V. How Does Elane Photography Correlate to Violations of the UCRA? A recent case, Elane Photography, LLC v. Willock, has provided new fodder for business owners’ rights.91 The plaintiff Elaine Huguenin, who has a public accommodation status and offers wedding photography services to the general public, was found in violation of the New Mexico Human Rights Commission (NMHRC) for refusing to photograph a samesex marriage between two women.92 Justice Bosson stated that, “this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice; this case teaches us that at some point in our lives, all of us must compromise, if only a little, to accommodate the contrasting values of others.”93 This notion of compromise is alarming. It is alarming because at the heart of any business is a business owner who not only must make tough business decisions, but also wants to see the businesses’ success. Forcing a business owner such as Mrs. Huguenin to compromise defeats the purpose of ‘operating a business the way the owner sees the most beneficial.’ Though there are rules to play by (NMHRC), it goes without saying that if a business owner believes that an act or omission will be detrimental to the business, or harmful to its patrons, he should not have to compromise and acquiesce to the unwanted patron. Scripps Clinic added to the particular forms of discrimination specifically outlawed by the URCA in adding homosexuals as a protected

Elane Photography, LLC v. Willock, 2013-NMSC-040 (2013) (the New Mexico Civil Rights Act is virtually identical to the California UCRA). 92 Id. at *23 {79}. 93 Id. at *26 {91}.

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class.94 So now the question is: Does a homosexual entertain the right to never be told “No”? Heterosexuals are told “No” on a daily basis – take for example, the man who wants a tattoo on a private area, and is denied; or the woman who, on foot, tries to buy a soda in a drive through, and is denied. “No” to a homosexual should not immediately call for litigation. As this article posits a character exception to civil rights violations, a justification for such violations, if the business owner feels that doing business with a patron of morally reprehensible character is not in their business’ best interest, or challenges their religious beliefs, they should be able to lean on laws that protect them. It is this challenge to one’s free exercise of religion that draws the strongest correlation.95 The United States Constitution’s Supremacy Clause declares federal treaties and federal laws to be the supreme law of the land and requires states to concede to federal law in the event of a conflict between state and federal regulation.96 Someone’s religious beliefs, and the free exercise thereof, should allow for a business owner to qualify a homosexual as someone that they find morally reprehensible. Moreover, there is a clear problem in allowing for the free exercise of religion, while at the same time, prohibiting such. Without addressing the federalism issue, and instead, applying the two-prong character exception to the Elane Photography case, the court might have concluded that Mrs. Huguenin was exempt from the NMHRC. As for the first prong, “reasonably substantial knowledge of plaintiff’s character,” the facts are uncontroverted in that Ms. Huguenin (and her partner, Misti Collinsworth) exchanged emails with Ms. Huguenin whereby they inquired into Elane Photography’s policy concerning the

Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 932 (2003). U.S. CONST. amend. I (stating that “Congress shall make no law prohibiting the free exercise of religion”). 96 Id. art VI. 95

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availability of her services.97 Although neither Ms. Willock nor her partner, Misti Collinsworth identified their sexual preference, the email exchange can establish Ms. Huguenin’s reasonably substantial knowledge of Ms. Willock’s character because Ms. Willock bluntly put it to Ms. Huguenin “are you saying that your company does not offer your photography services to same-sex couples?” There is almost no mistaking that Ms. Huguenin had firsthand knowledge of Ms. Willock’s sexuality. Ms. Huguenin took umbrage with Ms. Willock’s sexuality, and in accordance with her religious beliefs, believes that homosexuality is immoral, thereby establishing a character that Ms. Huguenin believes is reprehensible. As for the second prong, that “the plaintiff have but an insignificant injury,” there is a tremendous amount of support for such contention. To begin with, the court, in ruling in favor of plaintiff Willock, only awarded her attorneys’ fees.98 In further support, we need only look at the reality that photographers come a dime to a dozen. There is no shortage of photographers in this world, and conceivably, New Mexico. Though the facts of the case do not provide how quickly or how difficult it was for Ms. Willock to find another photographer, logic provides that, whereby Ms. Willock was just ‘inquiring,’ she clearly was not in immediate need of photography; therefore, Ms. Huguenin’s denial of services to Ms. Willock believably did not injure her significantly at all. Ms. Willock was service/price shopping, so she presumably was going to weed through the available options before making a final decision. Had Ms. Huguenin given Ms. Willock a high price quote, it is likely that Ms. Willock would have simply crossed Elane Photography, LLC, off the list of service providers, and moved on to the next. The result of the two-prong ‘character exception’ analysis provides that Ms. Huguenin affirmatively demonstrated that she had reasonably substantial knowledge that Ms. Willock was homosexual – which Ms. Huguenin stated that she finds morally reprehensible, and that based on 97 98

Elane Photography, LLC, 2013-NMSC-040 at *2 {7}-{8}. Id. at *2 {9} (adding that “no other monetary or injunctive relief was granted).

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general wisdom, Ms. Willock’s injury was insignificant, not only because of the court’s nominal award, but also because of the high probability that she could find another photographer with a relatively in exhaustive internet search. Because Ms. Huguenin could believably demonstrate the satisfaction of both prongs, the character exception would likely have exonerated her. VI. Conclusion From the power afforded to business owners (rather, proprietors) by Justice Story in 1835, which provided virtually maximum discretion to whom accommodations were provided, legislators and courts thereafter have both had a hand in the diminution of power with which business owners operate today. Where the legislative intent of the UCRA was to find a balance between providing accommodations to all persons and maintaining business owner’s rights, the times have changed and now call for greater protections for business owners. Our modern capitalist society is robust, and jobs are at a premium. When the common goal of government and society is to create lasting jobs, it makes no sense to allow for a single scorned patron to potentially destroy or seriously cripple a business, resulting in substantial job loss. We as a nation are well beyond the “starting out” phase and are believably beyond the “assimilating” phase whereby the government needs to make sure that they are looking out for the little guy. Patrons don’t need help getting accommodations in this day of oversaturated markets and on-demand technology. Business owners now need the protection the most – as our nation falls deeper into debt with a continually declining gross domestic product (GDP). Protecting businesses needs to become a priority, as America continues to deal with the pernicious effects of unemployment. Do we as a nation really want to see our businesses fail because they were hit with ridiculously crippling penalties and judgments, because so-and-so was

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denied a service that she likely could have received elsewhere in a matter of minutes? The justification for acts of conscience in violation of the California Unruh Civil Rights Act, rather, the character exception justifying the denial of service to persons in violation of the UCRA, is adequately suited for modern times. It balances the legislators’ needs in protecting both patron and business owner, but with a more pronounced protection for business owners. The UCRA is a necessary law, and this article definitely does not seek to eliminate or diminish the benefits conferred to protected classes, instead it seeks to better protect them—by ensuring against frivolity. As discussed throughout, a scorned patron can easily take to the justice system for remedy, whereas defending such case may prove fruitless for a defendant business owner. The fact that a business owner may face unnecessary backlash over a meritless claim, may lead to a quick settlement—just to keep the matter out of the limelight. Again, this in the aggregate is problematic. The character exception as proposed really allows for a business owner to fight the possible frivolity of the claim, by allowing for the owner to posit what the immoral character is, and whether the complaining party’s injury was significant. It is likely that were a business owner to present no more than just a “well, I saw him litter in the parking lot, that’s why I denied him entry to the store,” said business owner can hardly be believed to have been protecting his patrons. However, where a business owner can say “I’ve seen this man on the news as a sexual predator, and have had several parents tell me that they are not comfortable with him being in the presence of their children,” the business owner (loathing sexual predation as immoral character) has reasonably substantial knowledge of the predator’s character, and thusly is protecting his patronage. Further, in the exact same scenario, it is highly believable that the sexual predator, though only seeking a meal, could find another establishment to serve him a meal without much complication—demonstrating an insignificant injury.

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In conclusion, the justification for acts of conscience in violation of the UCRA stem from the business owner’s need to protect his patronage better, and more importantly, his business. If it is a business owner’s duty to protect his guests, the UCRA, without the character exception, does not provide an adequate defense for the proactive owner. The modern business owner (“i.e.,” Elane Huguenin) is basically ripe for lawsuit at the whim of any patron to whom the owner says “No”. A call for reason is in order in that when business owners can provide reasonably articulable facts for why they find a person morally reprehensible, that they are doing it for the protection of their patrons, and that the plaintiff truly suffered an insignificant injury, the courts should lend a deference to such business owners who can demonstrate that the proceeding with the case is a waste of judicial resources. Proposed Amendment to Section 51 of the California Civil Code A “character” exception will apply to a business owner where there has been a denial of service to a person of a protected class (1) where the owner has reasonably substantial knowledge of accused’s immoral character, and (2) there is insignificant injury. (A) For purposes of this amendment: (1) “Reasonably substantial knowledge” means knowledge sufficient to overcome doubt. (i) News reports; (ii) Internet databases (D.O.J / Megan’s Law); (iii) Credible third parties (a) Prior victims (b) Persons with firsthand knowledge of accused’s immoral conduct

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(2) “Immoral Character” means character that falls below reasonable conduct in an orderly society. (i) Sex offender; (ii) Violent felon; (iii) Rapist; (iv) Dangerous drunkard; (v) Thief (3) “Insignificant Injury” connotes that the injury was minor, or virtually non-existent: (i) Length of time before accused was served (ii) Lengths the accused had to go to, to be served

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DARWIN’S POISONED TREE: ATHEISTIC ADVOCACY AND THE CONSTITUTIONALITY OF TEACHING EVOLUTION IN PUBLIC SCHOOLS CASEY LUSKIN* Introduction The teaching of biological origins in public schools is a contentious and highly debated area of the law. If there is any fixed star of this evolving legal field, it is the U.S. Supreme Court’s 1968 holding in Epperson v. Arkansas that “[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”1 Following this mandate for state neutrality in evolution education, various courts and legal scholars have opposed the teaching of alternatives to evolution by citing an historical connection between opposition to evolution and the advocacy of “fundamentalist” religion.2 One author contends that attempts to teach non-evolutionary viewpoints of biological origins are unconstitutional because such viewpoints are associated with religion, making them “[f]ruit of the poison tree.”3 Another scholar similarly suggests that some educational policies that sanction critique of evolution entail “government measures that arise from a constitutionally problematic history” and are therefore “tainted . . . fruit of the poisonous tree.”4 Kristi L. Bowman warns that under current law, the “religious *

Attorney at Law; Research Coordinator, Discovery Institute, Seattle, WA. B.S. University of California, San Diego; M.S. University of California, San Diego; J.D. University of San Diego. The author thanks Anika Smith, David DeWolf, Sarah Chaffee, and John West for their input and advice on this article. He may be contacted at cluskin@discovery.org. 1 Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (citations omitted). 2 See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 716 (M.D. Pa. 2005); Selman v. Cobb Cty. Sch. Dist., 390 F. Supp. 2d 1286, 1306 (N.D. Ga. 2005), vacated, 449 F.3d 1320, 1323 (11th Cir. 2006); Jon D. Miller, Eugenie C. Scott, & Shinji Okamoto, Public Acceptance of Evolution, 313 SCI. 765 (2006). 3 Todd R. Olin, Note, Fruit of the Poison Tree: A First Amendment Analysis of the History and Character of Intelligent Design Education, 90 MINN. L. REV. 1107 (2006). 4 Asma T. Uddin, Evolution Toward Neutrality: Evolution Disclaimers, Establishment Jurisprudence Confusions, and a Proposal of Untainted Fruits of a Poisonous Tree, 8 RUTGERS J. L. & RELIGION 12 (2007) (citations omitted).

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motivation of many involved in the intelligent design movement” might taint any analysis into the government purpose behind policies supporting the teaching of intelligent design, rendering them unconstitutional.5 Multiple cases have considered the historical connection between religion and opposition to evolution when striking down educational policies that challenged evolution. (These cases are discussed in Part 1A of this article.) As this article will show, such reasoning, if applied fairly and consistently, could also threaten the constitutionality of teaching evolution itself—an outcome that is neither pedagogically desirable nor legally necessary. The effect prong of the Lemon test requires that the primary effect of a government policy neither “advance[]” nor “inhibit[]” religion.6 Various courts have found that policies which encourage teaching alternatives to evolution have the primary effect of advancing religion because these alternatives have historical ties to religion. But what if there are parallel historical associations between anti-religious activism and the advocacy of evolution? This could lead to objective perceptions that teaching evolution endorses such anti-religious advocacy, thereby inhibiting religion, or endorsing and advancing non-theistic or atheistic religious viewpoints. If the public is aware of the close historical association between the advocacy of evolution and anti-religious activism, then the teaching of evolution may make many religious Americans feel like political outsiders.7 Despite the fact that many scientific organizations and some influential 5 Kristi L. Bowman, Seeing Government Purpose Through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates, 29 HARV. J.L. & PUB. POL’Y 417, 468 (2006) (Bowman notes that this sort of analysis is precisely what rendered the policy unconstitutional in Selman v. Cobb County.); See also Philip Sparr, Note, Special “Effects”: Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005), and the Fate of Intelligent Design in our Public Schools, 86 NEB. L. REV. 708, 735 (2008) (“By exhaustively tracing ID’s heritage to creationism and creation science, the court effectively foreclosed the questions of ID’s scientific legitimacy under a purpose or effects prong analysis.”). 6 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added). 7 See Jana R. McCreary, This Is the Trap the Courts Built: Dealing with the Entanglement of Religion and the Origin of Life in American Public Schools, 37 SW. U. L. REV. 1, 67 (2008) (“The school districts that have such policies in place are not showing neutrality—those who agree with the religious dogma represented by evolution feel like favored members of the community while those who disagree feel like outsiders.”).

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religious organizations officially support compatibility between evolution and religion, widely known anti-religious activism associated with evolution could also “poison the tree” from which evolution-education falls. The past ten years have seen the rise of a vocal group of “new atheists” who vehemently maintain that evolution refutes religious belief. But the arguments of “new atheists” are hardly new—such arguments have been widespread and widely known throughout society since the time of Darwin. Given such an historical association between evolution and anti-religious activism, current tests for assessing the constitutionality of teaching theories of biological origins, when applied fairly, could conceivably render the teaching of evolution unconstitutional. There are good reasons to expect that such an unwanted outcome can be avoided. Science stands or falls on the evidence. Evolution is a legitimate scientific theory that public schools should be able to teach. The personal religious (or anti-religious) beliefs, motives, affiliations, and even activism of evolutionary scientists do not determine whether their views about evolution are scientific, or scientifically correct. In keeping with this principle, some legal tests for interpreting the Establishment Clause avoid commiting the genetic fallacy, and appreciate that historical connections between a particular viewpoint and religious (or anti-religious) advocacy are secondary to determining whether that viewpoint actually is scientific. Legitimate scientific theories like evolution should not be disbarred from science classrooms simply because of the religious (or anti-religious) views and activism of their proponents. Therefore, in order to preserve the teaching of evolution, it may be necessary to revise legal tests that are applied to assess the constitutionality of teaching biological origins. To put it bluntly, if evolution is to be continued to be taught in public schools, courts must abandon inquiries which look at the historical associations between a viewpoint on origins and religion (or non-religion). Preemptive Clarification Many have tried to equate the teaching of evolution with advocating atheism or secular humanism in attempts to bar evolution from the classroom (see Part 3A of this article). Having evolution declared unconstitutional to teach in public schools is neither my desire nor the necessary result of my argument. Though I am a scientific skeptic of neoDarwinian evolution, I firmly believe that it can be formulated as a scientific 132

theory and that teaching evolution in public school science classrooms should remain constitutional. Unlike some critics of evolution, I do not believe evolution is a religion. Additionally, from the outset I must recognize that many religious persons, indeed many devout Christians who are scientists, claim to find no conflict between evolution and their religious views. Though a huge proportion of Darwinians are atheists or secular humanists, many are not. Therefore, I am not arguing that all evolutionary scientists are atheists who preach an anti-religious message, nor am I arguing that acceptance of neo-Darwinian theory mandates belief in atheism or abandonment of traditional theism. My purpose in this present article is not to enter the debate about the correct relationship between neo-Darwinian evolution and religion. Rather, this article aims to review how leading advocates of evolution have promoted their views alongside anti-religious activism in a way which, under current legal tests, could be perceived as inhibiting, denigrating, or actively opposing religion, and endorsing antireligious viewpoints. Any fair analysis must conclude that under current law, the anti-religious activites and rhetoric associated with the advocacy of evolution threatens the teaching of evolution in public schools. The problem, however, is not with the scientific theory of evolution or the activities and activism of its advocates, but rather with the current legal tests that are used to assess whether a concept is constitutional to teach in public schools. My aim is to expose a deficiency in some current legal tests that could disbar the teaching of evolution and propose new tests whereby the teaching of evolution in public schools can be safely justified. Many might wish to dismiss the anti-religious activism associated with the advocacy of evolution as constitutionally irrelevant. However, proreligious activism associated with opposition to evolution has long been cited to prevent public schools from teaching non-evolutionary views. If evolution is associated with anti-religious activism, this must factor into constitutional analyses. Jurists who appreciate that justice is blind and that the law must be applied fairly will agree that current legal tests striking down such non-evolutionary views could similarly jeopardize the teaching of evolution.

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Indeed, leading pro-evolution activists seem well-aware of this threat to teaching evolution in public schools. A spokesman for the nation’s leading pro-Darwin lobbyist organization, the National Center for Science Education (NCSE), counseled his fellow Darwin-advocates that “We don’t need the anti-creationists going and mixing their views on religion into their science. In fact, this is probably the surest path to disaster politically and in the courts.”8 Renowned University of Wisconsin-Madison historian of the evolution debate, Ronald Numbers, likewise observes that evolution’s ties to atheism could potentially threaten its place in public schools: In the United States, our public schools are supposed to be religiously neutral. If evolution is in fact inherently atheistic, we probably shouldn’t be teaching it in the schools. And that makes it very difficult when you have some prominent people like Dawkins, who’s a well-credentialed biologist, saying, ‘It really is atheistic.’ He could undercut—not because he wants to—but he could undercut the ability of American schools to teach evolution.9 Michael Ruse, a leading Darwinian philosopher of science at Florida State University whose testimony in the 1982 McLean v. Arkansas case underpinned Judge Overton’s ruling that creationism isn’t science, agrees that those who enlist Darwin to attack religion might unwittingly cause teachers who present evolution to “violate the separation of church and state”: A major part of the atheist attack is that science has shown that the God hypothesis is silly. Suppose this is true—that if you are a Darwinian, then you cannot be a Christian. How then does one answer the creationist who objects to the teaching of Darwinism in schools? Sauce for the goose is sauce for the gander. If theism cannot be taught in schools (in America) because it violates the separation of church and state, why then should Darwinism be permitted? If

Nick Matze, THE PANDA’S THUMB (June 24, 2006, 5:41 PM), http://www.pandasthumb. org/archives/2006/06/ron_numbers_int.html#comment-107918. 9 Steve Paulson, Seeing the Light—of Science, SALON (Jan. 2, 2007), http://www.salon. com/2007/01/02/numbers_12/.

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Darwinism leads to atheism, does this not also violate the separation of church and state?10 If Darwinian evolution has anti-religious associations, then under current law, these could be a constitutional barrier to teaching it in public schools. But does there exist such a close historical tie between evolution and antireligious activism? If such historical associations exist, those who support fairness and neutrality in the law are now left with two choices: either teaching evolution must be deemed unconstitutional, or courts must abandon legal tests that consider the historical relationship between religious (or anti-religious) activism and the advocacy of theories of biological origins. The former option not only has disastrous consequences for science education, but it contradicts longstanding legal precedent that supports the constitutionality of teaching evolution. This article therefore suggests that historical analyses of associations between scientific advocacy and religious (or anti-religious) viewpoints should be abandoned, and that courts should consider new legal doctrines in order to justify teaching evolution. Jurists who understand that the law must be applied fairly will also see immediate implications for the constitutionality of teaching nonevolutionary theories of origin, such as intelligent design (ID). If antireligious activism associated with the advocacy of evolution is not fatal to teaching evolution, then in a symmetrical manner, any religious (or antireligious) advocacy associated with ID cannot be constitutionally fatal to teaching that concept as well. Summary of Argument Part I will recount the various courts that have scrutinized the historical association between views on biological origins and religious activism, and expound upon the constitutional implications of societal perceptions of those historical associations. After discussing how the endorsement test assesses the objective perceptions of government actions, I will argue that a publicly-known historical association between the advocacy of evolution and anti-religious activism could render the teaching of evolution unconstitutional under current law. 10

Michael Ruse, Book Review, 98 ISIS 814â&#x20AC;&#x201C;16 (2007) (reviewing RICHARD DAWKINS, THE GOD DELUSION (2006)).

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For those unconvinced that evolution bears close historical ties to anti-religious activism, Part II provides extensive documentation summarizing the close historical relationship between advocacy for evolution and anti-religious activism. Space limitations prevent expanding Part II beyond about a few hundred footnotes, but this author has already collected numerous additional sources that reveal a close historical association between the advocacy of evolution and anti-religious activism. To continue the analogy, this section will review the “poison in the tree” of evolution. This history of evolution advocacy includes: 

A long-standing public perception of “warfare” between evolution and religion;



Associations between anti-religious ideas and evolution drawn by Darwin and other 19th century intellectuals;



A long history of public promotion of evolution by leading scientists and academics alongside anti-religious activism (including a recent escalation in such activities);



Promotion of evolution in mainstream biology textbooks in manners that many would consider hostile towards theistic religion;



Strong advocacy for evolution by atheist organizations;



Extensive promotion of evolution in the liberal arts, social sciences, popular press, and media, found alongside antireligious rhetoric;



The common use of “dysteleology” in evolution advocacy, a theological argument where evolution is purportedly demonstrated by arguing against the action of God;



Widespread efforts to explain the origin of human religion and morality in evolutionary terms that would be perceived to conflict with common religious teachings.

Finally, Part III will argue that the solution is not to declare evolution unconstitutional, as that would overturn decades of legal 136

precedent holding that teaching evolution is legal and harm student learning. This section will recount various lawsuits that have tried and failed to ban evolution from the classroom. It will be argued that teaching evolution is good pedagogy because neo-Darwinism has been tremendously influential in modern biology. Excluding a scientific viewpoint from classrooms simply because of the religious (or anti-religious) advocacy of its proponents is not only bad law, it would harm science education. My conclusion is that courts must jettison from their constitutional analysis any consideration of religious (or anti-religious) advocacy on the part of proponents of a view on biological origins. This solution allows courts to simultaneously recognize the historical fact of evolution advocacy’s close ties with anti-religious activism, and allow the teaching of scientific theories like evolution which have a primary effect that advances scientific knowledge.11 Any effects upon religion are incidental or secondary to that primary effect.12 This is the antidote to Darwin’s poisoned tree. It can save the teaching of evolution in public schools, but it will require a revision of current legal tests regarding the constitutionality of teaching viewpoints of origins. As a result of this revision, the cultural history of non-evolutionary views and their associations with religious (or anti-religious) advocacy can no longer be considered germane to a constitutional analysis under the Establishment Clause. If the law is to be applied fairly and symmetrically, this conclusion must be equally true for assessing the teaching of ID in public schools as it is for teaching evolution. Part I: The Legal Setting A. Judicial Analysis of Historical Religious Activism when Dealing with the Teaching of Biological Origins Courts dealing with the teaching of biological origins in public schools have often attempted to recount the history of the evolution 11

Theresa Wilson, Evolution, Creation, and Naturally Selecting Intelligent Design out of the Public Schools, 34 U. TOL. L. REV. 203, 232 (2003). (“[I]f a theory has scientific value and evidence to support it, its primary effect would be to advance knowledge of the natural world, not to advance religion. The ultimate goal of schools is to educate students. Where a theory has scientific value and supporting evidence, it provides a basis for knowledge. Whether it coincidentally advances [or inhibits] religion should not matter.”). 12 David K. DeWolf, John G. West, & Casey Luskin, Intelligent Design Will Survive Kitzmiller v. Dover, 68 MONT. L. REV. 7, 46–48 (2007).

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controversy. These retellings invariably portray opposition to evolution as religiously based, and attempt to historically associate opposition to evolution with religion. Five cases illustrate how courts have inquired into the historical associations between religious advocacy and viewpoints on biological origins. Epperson v. Arkansas Epperson v. Arkansas arose out of a challenge to an Arkansas statute which made it a misdemeanor for a teacher in any Arkansas public school “to teach the theory or doctrine that mankind ascended or descended from a lower order of animals.”13 The U.S. Supreme Court struck the law down as establishing religion because the law “selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine.”14 The Court found that the purpose of the statute was to protect a religious viewpoint. The Arkansas statute was directly descended from the Tennessee “Monkey Law” of the Scopes Trial which had made it unlawful “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible.”15 The Court found this history relevant to its constitutional analysis: The statute was a product of the upsurge of “fundamentalist” religious fervor of the twenties. The Arkansas statute was an adaptation of the famous Tennessee “monkey law” which that State adopted in 1925. . . . It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence.16 The Court also found relevant the fact that advertisements in favor of the law explicitly warned Christian voters that if the law was not passed, churchgoers would be “forced to pay taxes to support teachers to teach evolution which will undermine the faith of their children.”17 It further found that “letters from the public expressed the fear that teaching of 13

Epperson v. Arkansas, 393 U.S. 97, 98–99 (1968). Id. at 108. 15 Id. 16 Id. at 98, 107–08. 17 Id. at 109. 14

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evolution would be ‘subversive of Christianity.’”18 The Court suggested that the negative publicity surrounding the Tennessee law may have led the Arkansas legislature to eliminate reference to the Genesis account of creation, finding that “no doubt that the motivation for the law was the same.”19 In this case, the history recounted was highly specific to the law in question, but the religious activism behind advocacy for the law rendered it unconstitutional. In his concurring opinion, Justice Black warned that the majority’s decision had “troublesome” implications. If evolution genuinely offends the religious beliefs of some Americans, Justice Black explained, the issue was more complex than the Court had stated: Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an antireligious doctrine, then this issue presents problems under

Id. at 108, n.16. The court observed that the following advertisement was representative of those which were used to “secure adoption of the statute”:

THE BIBLE OR ATHEISM, WHICH? All atheists favor evolution. If you agree with atheism vote against Act No. 1. If you agree with the Bible vote for Act No. 1. . . . Shall conscientious church members be forced to pay taxes to support teachers to teach evolution which will undermine the faith of their children? The Gazette said Russian Bolshevists laughed at Tennessee. True, and that sort will laugh at Arkansas. Who cares? Vote FOR ACT NO. 1. Letters from the public expressed the fear that teaching of evolution would be “subversive of Christianity,” and that it would cause school children “to disrespect the Bible.” One letter read: The cosmogony taught by [evolution] runs contrary to that of Moses and Jesus, and as such is nothing, if anything at all, but atheism. . . . Now let the mothers and fathers of our state that are trying to raise their children in the Christian faith arise in their might and vote for this anti-evolution bill that will take it out of our tax supported schools. When they have saved the children, they have saved the state. Id. (citations omitted). 19 Id. at 109.

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the Establishment Clause far more troublesome than are discussed in the Court’s opinion.20 Black’s observations foreshadow the constitutional quandary that is scrutinized in this article. McLean vs. Arkansas Board of Education Over a decade after their “Monkey-law” was struck down, Arkansas legislators enacted the “Balanced Treatment for Creation-Science and Evolution-Science Act,” requiring that Arkansas public schools give “balanced treatment to creation-science and to evolution-science.”21 In McLean v. Arkansas Board of Education, federal district court judge William Overton struck down the statute after heavily weighing legislative intent and finding that the law’s drafter had publicly proclaimed the religious purpose of the legislation.22 The court found that internal communication indicated the Act was part of “a religious crusade” noting that: “[t]he State of Arkansas, like a number of states whose citizens have relatively homogeneous religious beliefs, has a long history of official opposition to evolution which is motivated by adherence to Fundamentalist beliefs in the inerrancy of the Book of Genesis.”23 Judge Overton recounted this “long history” of “Fundamentalists” and their historical opposition to the theory of evolution and support for creationism. This weighed heavily into the court’s analysis of the law under the purpose prong of the Lemon test. Edwards v. Aguillard The most recent case over the teaching of biological origins to reach the U.S. Supreme Court was Edwards v. Aguillard in 1987. Similar to the controversy in McLean, the Louisiana legislature passed a “balanced treatment” or “equal time” law stating no school is required to teach either evolution or creation science, but if either is taught, the other must also be taught.24 The Supreme Court struck down the statute because it was passed under a predominantly religious purpose. 20

Id. at 113. McLean v. Arkansas Bd. of Educ., 529 F. Supp. 1255, 1256 (E.D. Ark. 2005). 22 Id. at 1259–64. 23 Id. 24 Edwards v. Aguillard, 482 U.S. 578, 583 (1987). 21

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In its analysis, the Court examined “the statute on its face, its legislative history, or its interpretation by a responsible administrative agency” because, “the plain meaning of the statute’s words, enlightened by their context and the contemporaneous legislative history, can control the determination of legislative purpose.”25 After assessing the events leading up to the passage of the law, the Court found it relevant that “[t]here is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution”26 and that “[t]hese same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case.”27 These statements by the Court treat opposition to evolution as if it derives from a tree that is necessarily poisoned by Christian fundamentalism. Selman v. Cobb County Selman arose when the Cobb County School District in Georgia enacted a policy in 2002 requiring the placement of a sticker-disclaimer inside biology textbooks.28 The ruling of federal district court Judge Clarence Cooper recounted explicit connections between the history of religious activism and the perceptions of that history by the citizenry: “[C]itizens around the country have been aware of the historical debate between evolution and religion.”29 Here the court argued that “the informed, reasonable observer would know that a significant number of Cobb County citizens had voiced opposition to the teaching of evolution for religious reasons” and “put pressure on the School Board to implement certain measures that would nevertheless dilute the teaching of evolution.”30 Although the court found that school district did not intend to endorse religion, it found the “informed, reasonable [observer] would perceive the

Id. at 594. Id. at 590. 27 Id. at 591. 28 The disclaimer stated “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.” Selman v. Cobb Cty. Sch. Dist., 449 F.3d 1320, 1324 (11th Cir. 2006). 29 Selman v. Cobb Cty. Bd. of Educ., 390 F. Supp. 2d 1286, 1306 (N.D. Ga. 2005). 30 Id. at 1307. 26

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School Board to be aligning itself with proponents of religious theories of origin.”31 While district court’s ruling was vacated and remanded by the 11th Circuit in May 2006,32 this ruling also shows how courts have examined the history of “Christian fundamentalist” opposition to evolution. Kitzmiller v. Dover In December 2004, 11 parents filed suit against the Dover Area School District in Pennsylvania over a policy requiring the reading of an oral disclaimer that favorably mentioned intelligent design.33 Federal district court Judge John E. Jones III applied the endorsement test to Dover’s ID-policy and found that “[t]he test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy’s language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose.”34 The judge recounted legal precedent as if it treated opposition to evolution as springing from a poisoned tree: In 1982, the district court in McLean reviewed Arkansas’s balancedtreatment law and evaluated creation science in light of Scopes, Epperson, and the long history of Fundamentalism’s attack on the scientific theory of evolution, as well as the statute’s legislative history and historical context. . . . Five years after McLean was decided, in 1987, the Supreme Court struck down Louisiana’s balanced-treatment law in Edwards for similar reasons. After a thorough analysis of the history of fundamentalist attacks against evolution . . . and taking the character of organizations advocating for creation science into consideration, the Supreme Court held that the state violated the Establishment Clause.35 The defense contended that “the Court should ignore all evidence of ID’s lineage and religious character,”36 but the judge followed McLean and 31

Id. at 1308. Selman, 449 F.3d 1320, 1321. 33 Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005). 34 Id. at 714–15. 35 Id. at 717. 36 Id. at 717, n.5. 32

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Edwards, ruling that it was necessary to examine the historical associations between the challenged curricular subject and religion.37 After establishing the necessity of looking at the historical background of an idea, Judge Jones assessed the historical background of intelligent design: Having thus provided the social and historical context in which the ID Policy arose of which a reasonable observer, either adult or child would be aware, we will now focus on what the objective student alone would know.38 The judge then concluded, “the objective student is presumed to have information concerning the history of religious opposition to evolution and would recognize that the Board’s ID Policy is in keeping with that tradition.”39 Judge Jones also found that a the average Dover citizen would find the policy objectionable because, “[i]n light of the historical opposition to evolution by Christian fundamentalists and creationists[,] . . . the informed, reasonable observer would infer the School Board’s problem with evolution to be that evolution does not acknowledge a creator.”40 A review of the case law shows that multiple rulings have considered the history of religious activism surrounding opposition to evolution when assessing the constitutionality of government policies that deal with the teaching of origins. It remains to be seen whether analogous history exists for the pro-evolution viewpoint, whereby anti-religious activism is commonly associated with the advocacy of evolution. If this

Id. (“Defendants’ argument lacks merit legally and logically. The evidence that Defendants are asking this Court to ignore is exactly the sort that the court in McLean considered and found dispositive concerning the question of whether creation science was a scientific view that could be taught in public schools, or a religious one that could not. The McLean court considered writings and statements by creation science advocates like Henry Morris and Duane Gish, as well as the activities and mission statements of creationist think-tanks like the Biblic Science Association, the Institution for Creation Research, and the Creation Science Research Center. The court did not make the relevance of such evidence conditional on whether the Arkansas Board of Education knew the information. Instead, the court treated the evidence as speaking directly to the threshold question of what creation science was. Moreover, in Edwards, the Supreme Court adopted McLean’s analysis of such evidence without reservation . . . .”). 38 Id. at 723. 39 Id. at 728. 40 Id. at 732.

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history exists, the legal implications for teaching the pro-evolution viewpoint could be profound. B. The Endorsement Test Since its formulation in 1971, the three-pronged Lemon test has been the primary judicial vehicle for determining whether the government has established religion in public schools. Despite Lemon’s significance, many cases dealing with religion in public schools have employed Justice O’Connor’s “endorsement test.”41 Indeed, the endorsement test has been invoked various times by even the U.S. Supreme Court, and the “reasonable observer” central to the test is assumed to have an extensive knowledge of the facts and history surrounding a case.42 Justice O’Connor explains how the endorsement test meshes with the Lemon test: The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid.43 When applied, the U.S. Supreme Court has emphasized that “endorsement” is analogous to showing “favoritism” or “promotion” of a religion, where “at the very least, [endorsement] prohibits government from appearing to take a position on questions of religious belief or from making adherence to a religion relevant in any way to a person’s standing in the political community.”44 When first explicating the endorsement test, Justice 41

See, e.g. Kitzmiller, 400 F. Supp. 2d 707; Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999); Selman v. Cobb Cty. Sch. Dist., 449 F.3d 1320 (11th Cir. 2006). 42 See Cty. of Alleghenny v. ALCU 492 U.S. 573, 620 (1989), abrogated by Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014); Salazar v. Buono 559 U.S. 700, 703 (2010); Kitzmiller, 400 F. Supp. 2d 707. See also Kristi L. Bowman, Seeing Government Purpose Through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates, 29 HARV. J.L. & PUB. POL’Y 417, 425 (2006) (“a reasonable observer brings an increasingly extensive knowledge of issues of law to any analysis”). 43 Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). 44 Cty. of Alleghenny, 492 U.S. at 620 (1989), quoting Lynch, 465 U.S. at 687 (citations omitted).

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O’Connor described endorsement as being dependent upon public perceptions: What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community.45 Thus under the endorsement test, even if the government does not intend to endorse religion, a government policy can be unconstitutional if it creates a public perception of government endorsement of religion. Justice O’Connor also explained that a government policy endorses religion when it makes some group feel like an “outsider”: The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.46 The relevance of these legal doctrines to the teaching evolution is obvious: If there exists a cultural history of anti-religious advocacy associated with the advocacy of evolution, then, under current law, teaching evolution could cause many citizens to perceive that government schools are endorsing an anti-religious viewpoint. This would make an objective, informed religious person who is aware of the fact of these historical associations feel like a political outsider when evolution is taught. If that citizen is a theist, particularly a member of America’s large Christian population, then the perception that the government has endorsed a viewpoint antithetical to their religion could be very strong. Public perceptions of evolution must be considered carefully in light of the following extensive documentation showing a long, well-known public

45 46

Lynch, 465 U.S. at 688 (O’Connor, J., concurring). Id. (O’Connor, J., concurring).

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history of close associations between anti-religious activism and the advocacy of evolution. Part II: Anti-Religious Activism Associated with the Advocacy of Evolution In November 2006, two Russian scientists reported in the leading scientific journal Nature that their country was experiencing a surge of opposition against evolution. While religion was cited by these Russian scientists as a partial cause of the growth of opposition to evolution, they also noted that the Russian populace interpreted evolution in light of the propaganda of the atheistic Soviet regime. According to these Russian scientists, their country is “now seeing the delayed effects of 70 years of enforced atheism and official support for darwinism in the Soviet Union.”47 As a result, many opponents of Darwin in Russia “relate darwinism to Soviet ideology rather than to empirical natural science,”48 leading to natural opposition to evolution among the Russian public. Russia’s cultural and political history logically leads many Russians to associate the teaching of evolution with the “enforced atheism” and “ideology” of the Soviet regime. Obviously Russia is not America, but what if it were? Under current American legal tests, such an anti-religious history associating evolution with atheism could be quickly recognized by courts as creating an unconstitutional endorsement of atheism, inhibiting religion. Though America has never experienced the tyranny of “enforced atheism,” evolution has commonly been advocated alongside anti-religious activism. In fact, a variety of leading evolutionary scientists have admitted that it would not be illogical for the general public to infer a close association between evolution and atheist, materialist ideology. In 1997, Harvard zoologist Richard Lewontin argued in the widelyread New York Review of Books that many pro-evolution forces have historically been aggressive in their anti-religious activities. Lewontin recounts that in the 1950s, the scientific elite sought to increase the teaching of evolution in schools and “exten[d] its domination by attacking the control that families had maintained over the ideological formation of their 47

Georgy S. Levit, Letter to the Editor, Creationists Attack Secular Education in Russia, 444 NATURE 265 (2006). 48 Id.

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children.”49 “The result was a fundamentalist revolt,” explained Lewontin, “the invention of ‘Creation Science,’ and successful popular pressure on local school boards and state textbook purchasing agencies to revise subversive curricula and boycott blasphemous textbooks.”50 Lewontin concludes that there is a culture war, but “[t]he real war is between the traditional culture of those who think of themselves as powerless and . . . materialism.”51 Lewontin goes on to take a side in this “war,” noting that evolutionary scientists have “a prior commitment, a commitment to materialism,” further admitting “that materialism is absolute, for we cannot allow a Divine Foot in the door.”52 If Lewontin is right, then some leading scientists see the teaching of evolution as a way to oppose traditional religion. In his 2002 book, What It Means to Be 98% Chimpanzee, University of North Carolina Charlotte anthropologist Jonathan Marks observes that cultural conflicts between science and religion are as much the result of scientists making anti-religious statements in the name of evolution as they are anything else: Evolution provides the most empirically valid explanation that we have for the present existence of life. Period. But why should it really matter whether we are descended from arboreal hairy primates or not? . . . . The reason it matters to so many people is that scientists have made it matter, and they’ve done so in the worst possible way. They’ve taken a proposition . . . . “We are descended from apes”—and stretched it into a series of additional propositions, often both authoritative and odious. Thirty years ago, in a widely read scientific-philosophical work called Chance and Necessity, the French molecular biologist Jacques Monod argued that evolution shows life to be meaningless.53

49 Richard C. Lewontin, Billions and Billions of Demons, N.Y. REV. OF BOOKS (Jan. 9, 1997) (reviewing CARL SAGAN, THE DEMON-HAUNTED WORLD: SCIENCE AS A CANDLE IN THE DARK (1997)) (emphasis added), http://www.nybooks.com/articles/archives/1997/jan/09/billions-and-billions-of-demons/. 50 Id. 51 Id. 52 Id. 53 JONATHAN MARKS, WHAT IT MEANS TO BE 98% CHIMPANZEE 281 (2002).

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Also in 2002, pro-evolution physicist Karl Giberson and historian Donald Yerxa discussed the anti-religious agenda of a small but influential cadre of leading scientific writers who expound on Darwin to the public. According to Giberson and Yerxa, the writings of these scientists generate a trickle-down effect, creating public perceptions of an anti-religious agenda associated with the advocacy of evolution. “[T]here is not a single leading popularizer of science who openly holds traditional religious views, and there are very few who hold any views that could be described as religious,”54 write Giberson and Yerxa. Many of these writers “are positively hostile to traditional religion and committed to demonstrating that science not only fails to corroborate any religious perspectives, but can actually dismantle and refute any religious perspective on the world.”55 The result is that “[p]ublic perceptions of science are thus shaped in important ways by that very small subset of the scientific community.”56 Legal scholar Jeffrey Addicott argues that there are many “Darwinian activists [who] proclaim that only Darwinistic thinking can unlock life’s most pressing questions and, at most, all ideas about the existence of a Creator-God are nothing more than a collection of folklore, void of scientific or historical value.”57 Francis Collins, Director of the National Institutes of Health and one-time head of the Human Genome Project, who is both a proponent of Darwinian evolution and a selfprofessed Christian, blames current tensions over evolution on antireligious statements from the scientific community: I don’t think it’s fair to blame believers for getting defensive about attacks on the Bible when they see their whole belief system is under attack from some members of the scientific community who are using the platform of science to say, “We don’t need God anymore, that was all superstition, and you guys should get over it.” Believers then feel some requirement to respond, and this has led to an unfortunate escalation of charges and countercharges. As a result of the 54

KARL GIBERSON & DONALD YERXA, SPECIES OF ORIGINS: AMERICA’S SEARCH FOR A CREATION STORY 122 (2002). 55 Id. 56 Id. at 120. 57 Jeffrey F. Addicott, Storm Clouds on the Horizon of Darwinism: Teaching the Anthropic Principle and Intelligent Design in the Public Schools, 63 OHIO ST. L.J. 1507, 1562 (2002).

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tensions over evolution, I think we see an increasing tendency for believers to dig in about things like Genesis 1 and 2.58 Attacks on religion from evolutionary scientists are increasing. In 2006, 49 scientists (mostly biologists) from the University of Virginia wrote en masse that “[n]ot only does evolution clash with religious dogma, but it undermines the significance that some would like to give to the place of humans in the universe.”59 The following month, the eminent evolutionary biologist Jerry Coyne from the University of Chicago discussed evolution education on NBC’s Today show, declaring that “[t]he scientific way of looking at the world, which depends on evidence, and the religious way of looking at the world, which depends on faith, are fundamentally incompatible.”60 Later that year, Time magazine reported in an article discussing evolution that “the antireligion position is being promoted with increasing insistence by scientists . . . .”61 Perhaps the most striking example of the recent spike in antireligious advocacy associated with evolution came in November 2006 when the New York Times science desk covered a conference held at a prestigious biotech Mecca, the Salk Institute for Biological Studies in La Jolla, California. The story reported a striking agenda on the part of leading scientists present at the conference to stifle religious belief in order to promote Darwinism to the public. The New York Times wrote that “one speaker after another called on their colleagues to be less timid in challenging teachings about nature based only on scripture and belief.” The scientists were worried that evolution by natural selection and other views are “losing out in the intellectual marketplace” and one scientist

David Ewing Duncan, The Discover Interview: Francis Collins, 2 DISCOVER 44, 47 (2007). 59 Paul N. Adler, et al., Letter to the Editor, Debating Intelligent Design, U. VA. MAG. (2006), http://uvamagazine.org/articles/letters_to_the_editor5. 60 NBC TODAY, Pope Enters the Debate on Intelligent Design, Transcript at 10, Sept. 1, 2006 (on file with author). See also In the News, U. CHI. CHRON. (Sept. 21, 2006), http://chronicle.uchicago.edu/060921/inthenews.shtml. (In his September 1, 2006 interview on NBC’s Today Show, “Coyne explained that unlike those with a religious view of life who depend on faith, scientists’ view of the world is based on evidence.”). 61 David Van Biema, God vs. Science, TIME, Nov. 13, 2006, at 48, http://content. time.com/time/magazine/article/0,9171,1555132,00.html.

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sarcastically said the viewpoints “have run the gamut from A to B. Should we bash religion with a crowbar or only with a baseball bat?”62 The British science journal New Scientist also covered the Salk conference, recounting that it had “all the fervor of a revivalist meeting” with “plenty of preaching.” Yet New Scientist also reported that it was “no religious gathering—quite the opposite.” The journal quoted Nobel Prize winning physicist Stephen Weinberg saying, “[t]he world needs to wake up from the long nightmare of religion,” and “[a]nything we scientists can do to weaken the hold of religion should be done, and may in fact be our greatest contribution to civilisation.”63 Carolyn Porco, a senior research scientist at the Space Science Institute in Boulder, Colorado, said “If anyone has a replacement for God, then scientists do.”64 Richard Dawkins argued at the meeting that “religious education is ‘brainwashing’ and ‘child abuse’.”65 Following the conference, atheist neuroscientist Sam Harris lamented the fact that some attending scientists “gave voice to the alien hiss of religious lunacy,” saying their words were surprising because “people who looked like scientists, had published as scientists” nonetheless supported religion.66 These preliminary anecdotes reveal that there is a very real cultural phenomenon of opposing religion while advancing evolutionary science, and they show that further investigation is warranted. Despite widespread attempts from the scientific community to tell the public that evolution and religion are compatible,67 anti-religious advocacy associated with the proDarwin viewpoint is common and widely known in the public sphere.

George Johnson, A Free-for-All on Science and Religion, N.Y. TIMES, Nov. 21, 2006, at D6 (emphasis added). 63 Michael Brooks & Helen Phillips, Beyond Belief: In Place of God, NEW SCIENTIST (Nov. 20, 2006), http://www.newscientist.com/channel/opinion/mg19225780.142beyond-belief-in-place-of-god.html. 64 Id. 65 Johnson, supra note 62. 66 Sam Harris, Beyond the Believers, FREE INQUIRY, Feb.—Mar. 2007, at 20, 20. 67 See NAT’L ACAD. OF SCI., SCIENCE AND CREATIONISM: A VIEW FROM THE NATIONAL ACADEMY OF SCIENCE 6 (1984); NAT’L ACAD. OF SCI., SCIENCE AND CREATIONISM: A VIEW FROM THE NATIONAL ACADEMY OF SCIENCES 7 (2d ed. 1999); NAT’L ACAD. OF SCI., SCIENCE, EVOLUTION, AND CREATIONISM 13 (2008).

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A. Early History of the “Warfare” Between Evolution and Religion Historian and legal scholar Edward J. Larson writes that prior to Darwin “the doctrine of special creation had dominated Western biological thought.”68 But even early evolutionary ideas had anti-religious associations. As historian Peter Bowler explains, pre-Darwinian formulations of evolution such as Lamarckism, were “firmly linked to materialism, atheism, and radical politics.”69 After the publication of Darwin’s Origin of Species in 1859, the link between anti-religious activities and evolution became stronger. Larson observes that “[b]y replacing a divine Creator with a survival-of-the-fittest process as the immediate designer of species, Darwin’s theory undermined natural theology.”70 Physicist Taner Edis explains that “[e]volutionary theory immediately caused religious turmoil.”71 Richard Dawkins applauds this intellectual shift, noting that “although atheism might have been logically tenable before Darwin, Darwin made it possible to be an intellectually fulfilled atheist.”72 The writings of leading 19th century intellectuals reflect the influence of Darwin’s revolution on thought. Karl Marx wrote that Darwin’s work dealt “a death blow” to “‘[t]eleology’ in the natural sciences.”73 Nietzsche biographer Curtis Cate explains that “it had dawned on [Nietzsche] that Darwin, with this theory of biological evolution stretched out over an enormous passage of time, had dealt to all forms of anthropomorphic religion a blow far more deadly than the one Copernicus had dealt to medieval Christianity.”74 Cate continues: “What Nietzche liked about Darwin’s theory was its . . . calm annihilation of the fairy-tale fable of the Creation of the World . . . . [m]an, according to this theory, was as 68

EDWARD J. LARSON, EVOLUTION: THE REMARKABLE HISTORY OF A SCIENTIFIC THEORY 107 (2004). 69 Peter J. Bowler, Evolution, in THE HISTORY OF SCIENCE AND RELIGION IN THE WESTERN TRADITION: AN ENCYCLOPEDIA 459 (Gary B. Ferngren ed., 2000). 70 LARSON, supra note 68, at 90. 71 TANER EDIS, SCIENCE AND NONBELIEF 18 (2006). 72 RICHARD DAWKINS, THE BLIND WATCHMAKER 6 (1986). 73 JAMES RACHELS, CREATED FROM ANIMALS: THE MORAL IMPLICATIONS OF DARWINISM 110 (1990). 74 CURTIS CATE, FRIEDRICH NIETZSCHE 354 (Overlook Press, 2005) (2002).

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much the product of fortuitous accidents as were any of the ‘lower’ species.”75 In 1911, the influential embryologist Ernst Haeckel wrote a short booklet explaining his reasons for leaving organized religion, boasting that, “for fifty years I have fearlessly and without regard to consequences defended the true modern teachings of evolution, and have furthered its most important result: that from the vertebrate animals the human species have descended.”76 He cited, “the utter impossibility of reconciling Christian beliefs about ‘creation,’ etc. with the important facts of evolution now established.”77 Margaret Sanger, an early 20th century intellectual who founded Planned Parenthood notes, “The heaven of the traditional theology had been shattered by Darwinian science . . . .”78 Modern scholars also asserted that there were unmistakable theological implications drawn from Darwin’s theory. Prominent evolutionary biologist and textbook author Douglas Futuyma asserts that “Darwin’s dangerous idea” made belief in a designing God “superfluous”: The philosopher Daniel Dennett called natural selection “Darwin’s dangerous idea” for a good reason: it is a very simple natural mechanism that explains the appearance of design in living things. Before Darwin, the adaptations and exquisite complexity of organisms were ascribed to creation by an omnipotent, beneficent designer, namely God, and indeed were among the major arguments for the existence of such a designer. Darwin’s (and Wallace’s) concept of natural selection made this “argument from design” completely superfluous. . . . It made the features of organisms explicable by processes that can be studied by science instead of ascribing them to miracles.79

Id. at 355. ERNST HAECKEL, THE ANSWER OF ERNST HAECKEL TO THE FALSEHOODS OF THE JESUITS CATHOLIC AND PROTESTANT 34 (1911). 77 Id. at 29. 78 MARGARET SANGER, THE PIVOT OF CIVILIZATION 159 (Humanity Books, 2003) (1922). 79 Douglas Futuyma, Natural Selection: How Evolution Works, ACTIONBIOSCIENCE (Dec. 2004), http://www.actionbioscience.org/evolution/futuyma.html. 76

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The eminent evolutionary biologist, the late Ernst Mayr, who was an architect of the modern neo-Darwinian paradigm of biology, summarizes the influence of Darwin by explaining that “the finalistic or teleological worldview” was an “impending ideology Darwin had to refute in order to be able to adopt natural selection.”80 Mayr asserts that “[e]very modern discussion of man’s future . . . the purpose of man and the universe, and man’s place in nature rests on Darwin.”81 He summarizes the broad antireligious implications of Darwin’s work perceived by 19th century thinkers: The intellectual revolution generated by Darwin went far beyond the confines of biology, causing the overthrow of some of the most basic beliefs of his age. .... What Darwin pointed out again and again was that any given phenomenon for which special creation had been invoked could be explained much better by his theory . . . . .... The adoption of evolution by natural selection necessitated a complete ideological upheaval. The “hand of God” was replaced by the working of a natural process. God was “dethroned,” as one of Darwin’s critics formulated it. Indeed, God did not play any role in Darwin’s explanatory schemes.82 Mayr further recounts that Darwin’s scientific theory of evolution by natural selection turned into “Darwinism,” wherein many of Darwin’s scientific postulates had philosophical implications that opposed reigning religious concepts of Darwin’s day: [T]here are scientific theories that have become important pillars of ideologies, as is the case in Newtonianism, and this is certainly true for Darwinism. Some of Darwin’s important 80

ERNST MAYR, ONE LONG ARGUMENT: CHARLES DARWIN AND THE GENESIS OF MODERN EVOLUTIONARY THOUGHT 50 (1991). 81 Id. at 7. 82 Id. at 1, 94–95, 96.

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new concepts, like variational evolution, natural selection, the interplay of chance and necessity, the absence of supernatural agents in evolution, the position of man in the realm of life, and others, are not only scientific theories but are at the same time important philosophical concepts, and characterize worldviews that have incorporated these concepts. Thus, as far as several of Darwin’s most basic scientific theories are concerned, they have a legitimate standing in both science and in philosophy. The rejection of special creation signified the destruction of a previously ruling worldview.83 Mayr goes on to explain that Darwinism faced an “uphill battle” in its fight for acceptance in society because it challenged “pillars of Christian dogma.”84 Princeton bioethicist Peter Singer puts it this way: All we are doing is catching up with Darwin. He showed in the 19th century that we are simply animals. Humans had imagined we were a separate part of Creation, that there was some magical line between Us and Them. Darwin’s theory undermined the foundations of that entire Western way of thinking about the place of our species in the universe.85 Forceful behind this intellectual shift were Darwin’s dysteleological arguments that natural evil could not have been created by a loving God.86 Darwin wrote: “I cannot persuade myself that a beneficent and omnipotent God would have designedly created the Ichneumonidae [a family of parasitic wasps] with the express intention of their feeding within the living bodies of caterpillars.”87 Darwin scholar George Levine explains that Darwin saw in biology “so much that goes awry, so much that is distorted, 83

Id. at 102. Id. at 38. 85 Johann Hari, Peter Singer: Some People Are More Equal Than Others, THE INDEPENDENT (Oct. 9, 2011), http://www.independent.co.uk/news/people/profiles/petersinger-some-people-are-more-equal-than-others-551696.html. 86 See LARSON supra note 68, at 90-92. See also CORNELIUS G. HUNTER, DARWIN’S GOD: EVOLUTION AND THE PROBLEM OF EVIL (2001). 87 Letter from Charles Darwin to Asa Gray (May 22, 1860), in 2 LIFE AND LETTERS OF CHARLES DARWIN 104 (Francis Darwin ed., Basic Books 1959) (1901). 84

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cruel, violent,” that this led to deep “resentment against the beneficent, omniscient Creator who might be thought to have produced such horrors.”88 Darwin himself viewed natural selection as a solution to the problem of evil which could replace theological explanations.89 According to Darwin, “[t]here seems to be no more design in the variability of organic beings and in the action of natural selection, than in the course which the wind blows. Everything in nature is the result of fixed laws.”90 (This topic of dysteological arguments will be discussed further in Section F.) Historian Neil C. Gillespie likewise observes that “Darwin clearly rejected Christianity and virtually all conventional arguments in defense of the existence of God and human immortality.”91 For example, in his Autobiography, Darwin argued that the Old Testament gives a “manifestly false history of the world” and asserted that he could not accept the miracles of Christianity because “the more we know of the fixed laws of nature the more incredible do miracles become—that the men at that time [of Christ] were ignorant and credulous to a degree almost incomprehensible by us.”92 After a lifetime studying evolution, Darwin’s personal views shifted from Christianity to a deistic or agnostic position. According to Gillespie, “[m]any scholars, even those who acknowledge the theism of the Origin period, agree that he became a conventional agnostic who rejected religion during his last twenty years.”93 Gillespie observes that Darwin “was aware that such views as he called materialism tended toward atheism.”94 Mayr declares that “[w]hether one wants to call him a deist, an agnostic, or an atheist, this much is clear, that in the Origin Darwin no longer required God as an explanatory factor. Creation as described in the Bible was contradicted by almost every aspect of the natural world.”95

GEORGE LEVINE, DARWIN LOVES YOU: NATURAL SELECTION AND THE REENCHANTMENT OF THE WORLD 237–38 (2006). 89 See HUNTER, supra note 86. 90 CHARLES DARWIN, THE AUTOBIOGRAPHY OF CHARLES DARWIN 87 (Nora Barlow

ed., W.W. Norton 1993) (1958). 91 NEAL C. GILLESPIE, CHARLES DARWIN AND THE PROBLEM OF CREATION 141 (1979). 92 DARWIN, supra note 90, at 85–86. 93 GILLESPIE, supra note 91, at 141. 94 Id. at 140. 95 MAYR, supra note 80, at 15.

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One passage from Origin of Species is often cited to promote the view that Darwin intended his ideas to be friendly towards religion. It reads: “There is grandeur in this view of life, with its several powers, having been originally breathed by the Creator into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed laws of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being, evolved.”96 However, when commenting on this passage, science-writer Chris Mooney, an atheist and an ardent promoter of evolution, explains why Darwin’s work was not necessarily intended to be favorable towards religion: [L]ater in life Darwin explicitly disavowed this view of nature’s grandeur. Furthermore, the words “by the Creator” only showed up in the second edition of the Origin, released several weeks after the first. Why this change? Because after Darwin came under vicious attack for his views . . . he went back and stuck in references to God as a form of appeasement [of religious critics]. . . . .... After the publication of the Origin, Darwin steadily grew even more skeptical. In his autobiography, begun in 1876, he puzzled through various arguments for the existence of God, but finally concluded, “I for one must be content to remain an Agnostic.” . . . [T]his passage . . . puts Darwin far closer to Daniel Dennett and Richard Dawkins than rare theistic evolutionists like Kenneth Miller.97 Darwin’s personal views may have ultimately had little impact upon societal perceptions of his theory, but his own struggles exemplify the antireligious implications that many drew and promoted from his theory. Bear in mind that the question is not whether Darwin and other writers are correct in their arguments and viewpoints regarding the proper religious and philosophical implications of evolution. The question is whether their 96

CHARLES DARWIN, ORIGIN OF SPECIES (6th ed. 1872) (1859), http://literature.org/ authors/darwin-charles/the-origin-of-species-6th-edition/chapter-15.html (last visited Dec. 3, 2015). 97 Chris Mooney, Darwin’s Sanitized Idea, SLATE MAG. (Sept. 24, 2001), http://www. slate.com/articles/arts/culturebox/2001/09/darwins_sanitized_idea.html.

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statements exhibit an historical association between anti-religious activism and the advocacy of evolution. In the decades following the publication of Origin of Species, leading scholars increasingly promoted a “warfare model” of science and religion that became “ingrained into the received wisdom of many secular Americans.”98 Two books in the late nineteenth century played a major role in the crystallization of this “warfare” mindset: John William Draper’s History of the Conflict Between Religion and Science and Andrew Dickson White’s A History of The Warfare of Science With Theology. These books caricatured religion as historically at war with science and “fostered the impression that religious critics of Darwinism threatened to rekindle the Inquisition.”99 In particular, Draper saw Catholicism as a threat to the advancement of science, where “Roman Christianity and Science are recognized by their respective adherents as being absolutely incompatible,” and thus “mankind must make its choice—it cannot have both.”100 Historian J. B. Russell observes that White’s book “is of immense importance, because it was the first instance that an influential figure had explicitly declared that science and religion were at war. It fixed the idea that ‘science’ stood for freedom and progress against the superstition and repression of ‘religion.’”101 Importantly, Russell observes that “[White’s] viewpoint became conventional wisdom.”102 While controversial, this “Draper-White thesis has been routinely employed in popular-science writing, by the media, and in a few older histories of science.”103 This “warfare model” was also employed by those promoting Darwinism in the early days of the debate over evolution. Thomas Henry 98

EDWARD J. LARSON, SUMMER FOR THE GODS 22 (1997). Id. at 21. See also Claude Welch, Dispelling Some Myths About The Split Between Theology and Science in the Nineteenth Century, in RELIGION AND SCIENCE HISTORY, METHOD, DIALOGUE 73 (W. Mark Richardson & Wesley J. Wildman eds., 1996). 100 JOHN WILLIAM DRAPER, HISTORY OF THE CONFLICT BETWEEN RELIGION AND SCIENCE 363 (Cambridge Library Collections, photo. reprint 2009) (1898). 101 JEFFREY BURTON RUSSELL, INVENTING THE FLAT EARTH: COLUMBUS AND MODERN HISTORIANS 38 (1991). 102 Id. 103 Colin A. Russell, The Conflict of Science and Religion, in THE HISTORY OF SCIENCE AND RELIGION IN THE WESTERN TRADITION: AN ENCYCLOPEDIA 12 (Gary B. Ferngren ed., 2000). 99

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Huxley, a British naturalist contemporary with Darwin who was known as “Darwin’s Bulldog,” exhibits this fact: Extinguished theologians lie about the cradle of every science as the strangled snakes beside that of Hercules; and history records that wherever science and orthodoxy have been fairly opposed, the latter have been forced to retire from the lists, bleeding and crushed if not annihilated; scotched if not slain.104 Peter Bowler contends that Huxley’s enthusiasm for evolution was motivated by a desire to pose a “challenge to religion . . . based upon the desire to present science as a source of authority to supplant the church.”105 Many beyond Huxley shared this motive, as Bowler observes that in the decades following Darwin, “[o]pponents of religion openly rejoiced at the prospect of replacing ancient superstition with a philosophy based on a scientific understanding of human nature.”106 By the 1909 celebration of the publication of Origin of Species, Marsha L. Richmond explains that for many of the attendees, “‘Darwinism’ connote[d] a certain naturalistic and materialistic worldview . . . .”107 During this period, “evolution was widely perceived as a component of the rationalist campaign against organized religion.”108 The perception that evolution opposed religion was becoming crystallized within society, as the warfare model became “[d]eeply embedded in the culture of the west, [and] has proven extremely hard to dislodge.”109 Taner Edis suggests that the decades following Darwin’s work into the early twentieth century were “a golden age of nonbelief.”110 After the Scopes trial of 1925, the controversy over evolution died down as both sides entered a “thirty-year truce.”111 The controversy was revived in 1959 when prominent evolutionists gathered at the University of 104

Id. at 15. PETER J. BOWLER, EVOLUTION: THE HISTORY OF AN IDEA 184 (3d ed. 2003) (1983). 106 Id. at 274. 107 Marsha L. Richmond, The 1909 Darwin Celebration: Re-examining Evolution in the Light of Mendel, Mutation, and Meiosis, 97 ISIS 447, 462 (2006). 108 BOWLER, supra note 105, at 323. 109 Russell, supra note 103, at 12. 110 EDIS, supra note 71, at 21. 111 EDWARD J. LARSON, TRIAL AND ERROR: THE AMERICAN CONTROVERSY OVER CREATION AND EVOLUTION 81 (2d ed. 1989) (1985). 105

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Chicago to celebrate the centennial of the publication of Origin of Species in what has been called the pinnacle of America’s acceptance of Darwinian thought.112 Julian Huxley, the grandson of T. H. Huxley, proclaimed that “Darwinianism has come of age so to speak. We are no longer having to bother about establishing the fact of evolution.”113 Time magazine had previously reported Huxley’s view that “Darwin . . . made it possible and necessary to dispense with the idea of God,”114 and Huxley now declared at the centennial of Origin of Species that evolution spelled the death of religion: In the evolutionary pattern of thought there is no longer either need or room for the supernatural. The earth was not created: it evolved. So did all the animals and plants that inhabit it, including our human selves, mind and soul as well as brain and body. So did religion. . . . .... Evolutionary man can no longer take refuge from his loneliness in the arms of a divinized father figure whom he himself created, nor escape from the responsibility of making decisions by sheltering under the umbrella of Divine Authority, nor absolve himself from the hard task of meeting his present problems by relying on the will of an omniscient but unfortunately inscrutable Providence. . . . .... Finally, the evolutionary vision is enabling us to discern, however incompletely, the lineaments of the new religion that we can be sure will arise to serve the needs of the coming era.115 112 THOMAS WOODWARD, DOUBTS ABOUT DARWIN: A HISTORY OF INTELLIGENT DESIGN 33 (2003). 113 Id. at 34. 114 Books: Gloomy Debate, TIME, June 19, 1944, at 101 (reviewing JULIAN JUXLEY, ON LIVING IN A REVOLUTION (1944)). 115 Julian S. Huxley, The Humanist Frame, in THE HUMANIST FRAME 18, 19, 26 (Julian Huxley ed., 1961), https://ia801405.us.archive.org/32/items/humanistframe000717mbp/ humanistframe000717mbp.pdf.

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Peter Bowler explains that soon thereafter, the modern creationist movement began as a response to anti-religious evolution advocacy: The more materialistic implications of Darwin’s thinking became widely accepted only in the twentieth century, when biologists at last became convinced that natural selection was the driving force of evolution. As scientists began to insist that we must learn to live with the idea that we are the products of a purposeless, and hence, morally neutral natural world, so the modern creationist backlash began.116 As previously noted, Francis Collins makes a similar observation, casting the “creationist” movement as a direct response to evolutionary scientists who “are using the platform of science to say, ‘We don’t need God anymore, that was all superstition, and you guys should get over it.’”117 Thus, while the “modern creationist backlash” is often criticized by legal scholars as purely religious opposition to evolution, jurists must take note of the fact that many view it as a direct response to anti-religious advocacy associated with the promotion of Darwinian evolution. The early history of Darwin’s theory demonstrates that it has long been associated with anti-religious advocacy. This has created a widespread perception within Western culture that evolution is at “war” with religion. Whether or not this perception is always deserved, it is difficult to dispute that this perception exists. B. Evolution Advocacy by Prominent Scientists and Academics Many leading figures in the scientific and academic communities advocate to the public close connections between evolution and anti-theistic ideas. This section is the largest portion of this article, documenting statements and positions of many such individuals. Nonetheless, due to space limitations this section is only a small sampling of scientists and academic who publicly advocate evolution alongside anti-religious rhetoric. Again, the question is not whether these authors are correct in their interpretations of the proper relationship between evolution and religion. 116

Peter Bowler, Evolution, in THE HISTORY OF SCIENCE AND RELIGION IN THE WESTERN TRADITION: AN ENCYCLOPEDIA, supra note 103, at 524. 117 Duncan, supra note 58.

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The question is whether they are promoting evolution alongside advocacy that would be perceived as anti-religious. A 2007 editorial by the editors of the world’s most prestigious scientific journal, Nature, stated that “the idea that human minds are the product of evolution” is “unassailable fact,” and concluded, “the idea that man was created in the image of God can surely be put aside.”118 Eugene Koonin, a leading biologist with the National Center for Biotechnology Information at the National Institutes of Health, wrote in the journal Cell Cycle that evolution has “far-reaching biological and philosophical implications” because “Darwin demonstrated that man emerged not by a special act of creation in God’s image, but as a regular result of biological evolution, his ancestors being decidedly nondivine creatures.”119 This section is the most expansive of this article, as it documents many scientists who have promoted evolution alongside anti-religious advocacy.

A 1995 article in the journal The Scientist reported “some very prominent scientists belong to organized humanist groups that promote scientific explanations about the origin of the universe and fight for greater separation of church and state.”120 As an example, the article cited the “prestigious nontheist organization, the 80-member Amherst, N.Y.-based Academy of Humanism” which “boasts a membership” that includes leading evolutionary scientists such as “Harvard’s [Edward O.] Wilson and evolutionary biologist Stephen Jay Gould, Nobel laureate physicist Murray Gell-Mann of the Santa Fe Institute, Nobelist Francis Crick of the Salk Institute, and Cornell University astronomer Carl Sagan.”121 Crick and his scientific partner James Watson are two of the most eminent scientists of the 20th century; they shared the Nobel Prize in 1962

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Evolution and the Brain, 447 NATURE 753 (2007). Eugene V. Koonin, A Non-Adaptationist Perspective on Evolution of Genomic Complexity or the Continued Dethroning of Man, 3 CELL CYCLE 280, 284 (2004). 120 Steven Benowitz, Irreligious Researchers Differ In Their Views On Faith, THE SCIENTIST (Apr. 17, 1995) http://www.the-scientist.com/?articles.view/articleNo/ 17360/title/Irreligious-Researchers-Differ-In-Their-Views-On-Faith/. 121 Id. 119

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for co-discovering the double-helical structure of DNA.122 A 2003 article in the Telegraph explained that the scientists had “both used the anniversary” of their discovery “to mount an attack on religion.”123 They have plainly admitted their intent to use evolutionary science to oppose religion. Crick explains his view that “[u]ntil Charles Darwin and Alfred Wallace independently hit on the basic mechanism driving biological evolution—the process of natural selection—the ‘Argument from Design’ appeared to be unanswerable. How could an organism as complex and well designed as man have arisen without the help of an all-wise Designer? . . . [T]his argument has collapsed completely.”124 He writes that the “compelling argument” for “a Designer” was “shattered by Charles Darwin,”125 and recounts that his “loss of faith in Christian religion and my growing attachment to science played a dominant part in my scientific career.”126 Indeed, in his book on the origin of life on earth, Crick finds that those who oppose evolution are a “nuisance” and “cling to outmoded religious beliefs” since “man is a biological animal who has evolved largely by natural selection.”127 He displays a staunchly materialistic viewpoint, writing “‘You,’ your joys and your sorrows, your memories and your ambitions, your sense of personal identity and free will, are in fact no more than the behavior of a vast assembly of nerve cells and their associated molecules. As Lewis Carroll’s Alice might have phrased it: ‘You’re nothing but a pack of neurons.’”128 Crick contends that “[t]he record of religious beliefs in explaining scientific phenomena has been so poor in the past that there is little reason to believe that the conventional religions will do much better in the future.”129

122

Maurice Wilkins was a third recipient of this prize. See The Nobel Prize in Physiology or Medicine 1962, http://nobelprize.org/nobel_prizes/medicine/laureates/1962/ (last visited Dec. 1, 2015). 123 Roger Highfield, Do Our Genes Reveal the Hand of God?, TELEGRAPH (Mar. 20, 2003), http://www.telegraph.co.uk/news/science/science-news/3306329/Do-our-genesreveal-the-hand-of-God.html. 124 FRANCIS CRICK, THE ASTONISHING HYPOTHESIS: THE SCIENTIFIC SEARCH FOR THE SOUL 5 (1994). 125 FRANCIS CRICK, WHAT MAD PURSUIT: A PERSONAL VIEW OF SCIENTIFIC DISCOVERY 25 (1988). 126 Id. at 11. 127 FRANCIS CRICK, LIFE ITSELF: ITS ORIGIN AND NATURE 163–64 (1981). 128 CRICK, supra note 124, at 3. 129 Id. at 258.

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Crick’s scientific partner, James D. Watson, similarly believes that “evolution represents science’s most direct incursion into the religious domain.”130 He states that “[e]very time you understand something, religion becomes less likely . . . [o]nly with the discovery of the double helix and the ensuing genetic revolution have we had grounds for thinking that the powers held traditionally to be the exclusive property of the gods might one day be ours.”131 Richard Dawkins quotes Watson stating, “I don’t think we’re for anything. We’re just products of evolution.”132 Dawkins himself is perhaps the most widely known evolutionary biologist who uses evolution to oppose religion. His most famous line has already been mentioned, where he contends that “Darwin made it possible to be an intellectually fulfilled atheist.”133 But Dawkins is no armchair atheist: Wired Magazine reports that Dawkins is part of a new “crusade against religion” and is “the leading light of the New Atheism movement,” a movement reportedly contending that “[r]eligion is not only wrong, it’s evil.”134 Dawkins’ views are also not simply those of an obscure academic: he is an influential evolutionary biologist and for years was Chair for the Public Understanding of Science at Oxford University.135 Anthropologist Jonathan Marks calls him “a leading spokesman for science,”136 and Campbell’s popular college biology textbook praises Dawkins as one of “the very few scientists” who can “engag[e] and challeng[e] nonscientists.”137

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JAMES D. WATSON & ANDREW BERRY, DNA: THE SECRET OF LIFE 404 (2006). Highfield, supra note 123. 132 RICHARD DAWKINS, THE GOD DELUSION 100 (2006). Additionally, Watson reportedly believes that “Africans less intelligent than Westerners.” See Cahal Milmo, Fury at DNA Pioneer’s Theory: Africans Less Intelligent than Westerners, THE INDEPENDENT (Oct. 16, 2007), http://www.independent.co.uk/news/science/fury-at-dna-pioneers-theory-africansare-less-intelligent-than-westerners-394898.html. 133 DAWKINS, supra note 72. 134 Gary Wolf, The Church of the Non-Believers, WIRED (Nov. 1, 2006), http://www. wired.com/2006/11/atheism/. 135 Previous Holders of the Simonyi Professorship, THE SIMONYI PROFESSORSHIP, http://www.simonyi.ox.ac.uk/previous-holders-simonyi-professorship.html (last visited Nov. 27, 2015). 136 JONATHAN MARKS, WHAT IT MEANS TO BE 98% CHIMPANZEE: APES, PEOPLE, AND THEIR GENES 266 (2002). 137 NEIL A. CAMPBELL, ET AL., BIOLOGY 412 (Addison Wesley Longman 5th ed. 1999). 131

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Indeed, Dawkins is probably the most widely read popular promoter of Darwinian evolution in the world today. His views on evolutionary biology are perhaps most succinctly explained in his widely acclaimed and aptly titled book, The Blind Watchmaker: [T]he only watchmaker in nature is the blind forces of physics, albeit deployed in a very special way. A true watchmaker has foresight: he designs his cogs and springs, and plans their interconnections, with a future purpose in his mind’s eye. Natural selection, the blind, unconscious automatic process which Darwin discovered, and which we now know is the explanation for the existence and apparently purposeful form of all life, has no purpose in mind. It has no mind and no mind’s eye. It does not plan for the future. It has no vision, no foresight, no sight at all. If it can be said to play the role of watchmaker in nature, it is the blind watchmaker.138 In River Out of Eden: A Darwinian View of Life, Dawkins argues that our universe merely has “blind physical forces and genetic replication,” and thus “[t]he universe we observe has precisely the properties we should expect if there is, at bottom, no design, no purpose, no evil and no good, nothing but blind, pitiless indifference.”139 He concludes that Darwinian evolution effectively eliminates “the god hypothesis”: We explain our existence by a combination of the anthropic principle and Darwin’s principle of natural selection. That combination provides a complete and deeply satisfying explanation for everything that we see and know. Not only is the god hypothesis unnecessary. It is spectacularly unparsimonious. Not only do we need no God to explain the universe and life. God stands out in the universe as the most glaring of all superfluous sore thumbs. We cannot, of course, disprove God, just as we can’t disprove Thor, fairies, leprechauns and the Flying Spaghetti Monster. But, like

138 139

DAWKINS, supra note 72, at 5. RICHARD DAWKINS, RIVER OUT OF EDEN: A DARWINIAN VIEW OF LIFE 133 (1995).

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those other fantasies that we can’t disprove, we can say that God is very very improbable.140 Evolution plays a central role in Dawkins’ fight against religion. He endorses the view that “Darwinism is the story of humanity’s liberation from the delusion that its destiny is controlled by a power higher than itself”141 and believes that invoking God as a cause is “self-indulgent, thought-denying skyhookery.”142 He consistently provides an anti-religious interpretation of evolution: Darwinian evolution, specifically natural selection . . . shatters the illusion of design within the domain of biology, and teaches us to be suspicious of any kind of design hypothesis in physics and cosmology as well. I think the physicist Leonard Susskind had this in mind when he wrote, “I’m not an historian but I’ll venture an opinion: Modern cosmology really began with Darwin and Wallace. Unlike anyone before them, they provided explanations of our existence that completely rejected supernatural agents . . . . Darwin and Wallace set a standard not only for the life sciences but for cosmology as well.”143 Many similar quotes could be given to show Dawkins’ prominent opposition to religion while supporting evolution. A spokesperson for the NCSE once asserted that ID-proponents “invent enemies,” and speculated that, “if Dawkins didn’t exist, [ID proponents] would invent him anyway.”144 Yet innumerable other examples could be given of scientists and academics who similarly use evolution to oppose religion. To give a sampling: Cornell evolutionary biologist and historian William Provine believes that “[e]volution is the greatest engine of atheism ever 140

Richard Dawkins, Why There Almost Certainly Is No God, THE HUFFINGTON POST (Oct. 23, 2006), http://www.huffingtonpost.com/richard-dawkins/why-there-almostcertainl_b_32164.html. 141 DAWKINS, supra note 132, at 5. 142 Id. at 155. 143 Id. at 118. 144 Nicholas Matzke, Episode 66, THE INOCULATED MIND (Mar. 21, 2007) http://www. inoculatedmind.com/?p=168 (on file with author).

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invented,”145 and sees clear anti-religious implications from evolution: “Naturalistic evolution has clear consequences that Charles Darwin understood perfectly. 1) No gods worth having exist; 2) no life after death exists; 3) no ultimate foundation for ethics exists; 4) no ultimate meaning in life exists; and 5) human free will is nonexistent.”146 Provine recounts that evolution played a major role in his own personal loss of faith: “Evolution exhibited no sign whatsoever of purpose. Evolution just happens. I can remember the pain of loss lasted less than a week. As the creationists claim, belief in modern evolution makes atheists of people.”147 In his view, “[o]ne can have a religious view that is compatible with evolution only if the religious view is indistinguishable from atheism.”148 Nobel laureate physicist Steven Weinberg testified in support of teaching only the evidence supporting evolution before the Texas State Board of Education.149 Weinberg has described evolution as “natural selection acting on random undirected inheritable variations.”150 Yet Weinberg says that his scientific career is motivated by a desire to disprove religion: I personally feel that the teaching of modern science is corrosive of religious belief, and I’m all for that! One of the things that in fact has driven me in my life, is the feeling that this is one of the great social functions of science—to free people from superstition.151

145

William Provine, Keynote Address at the University of Tennessee, Knoxville Darwin Day 1998, Evolution: Free Will and Punishment and Meaning in Life (Feb. 12, 1998), http://fp.bio.utk.edu/darwin/1998/provine_abstract.html (on file with author). 146 Id. 147 William B. Provine, No Free Will, in CATCHING UP WITH THE VISION: ESSAYS ON THE OCCASION OF THE 75TH ANNIVERSARY OF THE FOUNDING OF THE HISTORY OF SCIENCE SOCIETY, 90 (SUPP.) ISIS S117, 123 (1999). 148 Id. 149 Michael King, In Search of Intelligent Life at the SBOE, AUSTIN CHRONICLE (Sept. 19, 2003), http://www.austinchronicle.com/news/2003-09-19/178247/. 150 Stephen Weinberg, Living in the Multiverse, in UNIVERSE OR MULTIVERSE? (Bernard Carr ed., 2009) 40. 151 Stephen Weinberg, Address to the 22nd Annual Freedom From Religion Foundation (November 1999), abstract in Free People from Superstition, FREETHOUGHT TODAY (Apr. 2000), http://ffrf.org/legacy/fttoday/2000/april2000/weinberg.html.

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Weinberg praises the work of Dawkins in this effort, writing: “Given the battering that traditional religion has taken from the theory of evolution, it is fitting that the most energetic, eloquent and uncompromising modern adversaries of religion are biologists who helped us to understand evolution: first Francis Crick, and now Richard Dawkins.”152 Evolutionary biologist and science-writer Massimo Pigliucci explains that he “does not think there is any good reason to believe in a supernatural entity that created and somehow supervises the universe” and therefore he “relegate[s] God to the same realm as Santa Claus.”153 Pigliucci also runs a secular humanist organization, whose website houses a presentation where he writes that “[m]ysticism and religion are not helpful in understanding the natural world.”154 In another presentation opposing skeptics of Darwin entitled “Denying Evolution,” Pigliucci promotes materialism over religion: “Realism and naturalism are, of course, leaps of faith, but very small ones compared to those required by any religion or other method of inquiry proposed so far.”155 University of Exeter biologist and philosopher John Dupré asserts in Darwin’s Legacy: What Evolution Means Today that evolution delivers a “death blow” to “theocentric cosmologies” stating that “the growth of evolutionary theory that [Darwin] launched has provided a fatal injury to the pretension of religion.”156 Dupré argues that “the religiously minded are right to be fearful of the general acceptance of evolutionary thought,” asserting in light of “the development of a convincing theory of evolution” we now have “no good reason for belief in God.”157 In his view, “science,

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STEVEN WEINBERG, A Deadly Certitude, in LAKE VIEWS: THIS WORLD AND THE UNIVERSE 211 (2009). 153 Massimo Pigliucci, Personal Gods, Deism, & the Limits of Skepticism, 8 SKEPTIC, no. 2, 2000, at 38. 154 Massimo Pigliucci, How We Try to Understand the World: Science, Philosophy and Mysticism, RATIONALLY SPEAKING, http://life.bio.sunysb.edu/~massimo/rationallyspeaking/files/science-philo-myst.pdf (on file with author). 155 Massimo Pigliucci, Denying Evolution, RATIONALLY SPEAKING, http://life.bio.sunysb. edu/~massimo/rationallyspeaking/files/denying-evolution.pdf (on file with author). Accord Massimo Pigliucci, Creationism vs. Scientism: the Twin Dangers of Religious and Scientific Fundamentalism, FREE INQUIRY, Summer 2003, at 32, 33. 156 JOHN DUPRÉ, DARWIN’S LEGACY: WHAT EVOLUTION MEANS TODAY 41–42 (2003). 157 Id. at 3, 46.

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especially in the guise of Darwinism, has undermined any plausible grounds for believing that there are any gods or other supernatural beings.”158 Paul (P.Z.) Myers, a biologist at the University of Minnesota, Morris, is best known for his blog, Pharyngula, which Nature stated in 2006 was the most popular science blog on the internet.159 Myers regularly uses his blog to support evolution and oppose religion.160 Pharyngula’s official description on each of its pages boasts of its offering “[e]volution, development, and random biological ejaculations from a godless liberal.”161 Myers believes that “[w]e need widespread social stigmatization of religion to eradicate religion . . . .”162 In one instance, the Pharyngula blog was used to design an official “logo for the godless.”163 Myers asserts when discussing evolution that “science is a threat to religion” and holds that “there is a very strong conflict between religion and science, and if you’re doing religion, you’re not thinking scientifically.”164 His book The Happy Atheist promotes evolution while making comments like “religion is a parasite of the mind that makes people do stupid things and think stupid thoughts,” further stating, “religion is a clown circus.”165 Elsewhere Myers calls federal payment for military chaplains “[w]elfare for the intellectually deficient”166 and expresses his hope that “[w]hen we achieve post-theism, the question of what god is will be regarded as as [sic] a string of nonsense

158

Id. at 57. See Top Five Science Blogs, 442 NATURE 9 (2006). See also Best Science Blog, THE 2006 WEBLOG AWARDS: BEST SCIENCE BLOG (Dec. 7, 2006), http://2006.weblogawards. org/2006/12/best_science_blog.php. 160 See e.g. P.Z. Myers, More on that Miller guy, PHARYNGULA (Sept. 9, 2006), http://scienceblogs.com/pharyngula/2006/09/09/more-on-that-miller-guy/. 161 P.Z. Myers, PHARYNGULA, http://freethoughtblogs.com/pharyngula (last visited November 28, 2015). 162 P.Z. Myers, RAVING ATHEISTS FORUM, (Sept. 20, 2007, 5:56 PM), http://ravingatheists.com/forum/showthread.php?t=13602&page=2. 163 P.Z. Myers, A Logo for the Godless: An Impossible Assignment?, PHARYNGULA (Oct. 28, 2006) http://scienceblogs.com/pharyngula/search/pharyngula+a+logo+for+the+godless. 164 Reginald V. Finley Sr., Interview with P.Z. Myers, www.infidelguy.com/index.php/component/commedia/popup/6888/673/6888/component (on file with author). 165 P.Z. MYERS, THE HAPPY ATHEIST 8, 135 (2013). 166 P.Z. Myers, RAVING ATHEISTS FORUM (Sept. 20, 2007, 5:58 PM), http://ravingatheists.com/forum/showthread.php?t=13602&page=2. 159

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syllables.”167 Myers concludes that “the only way we can resolve” conflicts between science and religion “is for someday religion to be reduced to little more than a hobby or a little eccentricity that certain people practice.”168 Physicist Victor Stenger wrote a book chapter entitled, “The Menace of Darwinism,” contending that Darwinism is antithetical to religious belief. He first quotes Dawkins saying, “The universe we observe has precisely the properties we should expect if there is, at bottom, no design, no purpose, no evil and no good, nothing but blind, pitiless indifference.”169 Stenger affirmatively cites Andrew Dickson White’s A History of Warfare of Science and Theology in Christendom as saying, “If the Darwinian theory is true, Genesis is a lie, the whole framework of the book of life falls to pieces, and the revelation of God to man, as we Christians know it, is a delusion and a snare.”170 Taner Edis contends: “evolution does, in fact, directly challenge commonly held religious views. Evolution says a lot more about the place of humans in the universe than, say, modern physical ideas about microscopic randomness. If there is anything at all to widely shared human intuitions about spiritual realities, it would seem life and creativity should be the responsibility of supernatural forces. Yet, according to Darwinian evolution, this is not so. And there is more. Not only does evolution motivate religious skepticism due to its uncompromising naturalism, but it also very easily leads into some traditional arguments for nonbelief.”171 He further explains how Darwinism supports atheism: Darwinian evolution combines chance and necessity. And the effect of evolution is to place creativity squarely within the natural world. So unsurprisingly, Darwin has become an icon among naturalistic nonbelievers. Moreover, evolution more directly relates to religious concerns. Biological evolution is greeted enthusiastically by skeptics and treated with suspicion by conservative believers, more so than any

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P.Z. Myers, RAVING ATHEISTS FORUM (Sept. 20, 2007, 6:47 PM), http://ravingatheists.com/forum/showthread.php?t=13602&page=3. 168 Finley, supra note 164. 169 VICTOR J. STENGER, HAS SCIENCE FOUND GOD? 43 (2003). 170 Id. at 46. 171 EDIS, supra note 71, at 73.

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of the challenges to spiritual views arising from modern physics.172 Writing in the journal, Federation of American Societies for Experimental Biology, editor-in-chief Gerald Weissmann argues that “much of society at large is beating a hasty retreat to the dark ages” because “superstition threatens our schools and Bible-thumpers preach that Darwin got it wrong.”173 Weissman envisions winning a war against “zealots of all stripes [that] are chipping away at evolutionary science” and calls on scientists to mount a “defense—against humbug and the Endarkenment.”174 Ernst Mayr wrote in Scientific American that “Darwinism rejects all supernatural phenomena and causations” because “[t]he theory of evolution by natural selection explains the adaptedness and diversity of the world solely materialistically.”175 He explains that “[t]he truly outstanding achievement of the principle of natural selection is that it makes unnecessary the invocation of ‘final causes’—that is, any teleological forces leading to a particular end” and therefore, “nothing is predetermined.”176 Niles Eldredge, a curator at the American Museum of Natural History and a prominent evolutionary paleontologist and author, writes that Darwin “stands among the giants of Western thought because he . . . taught us that we can understand life’s history in purely naturalistic terms, without recourse to the supernatural or divine.”177 Gregory Petsko, president of the American Society for Biochemistry and Molecular Biology (ASBMB), published editorials in the scientific journals ASBMB Today and Genome Biology asserting “there is no controversy” within science over evolution, while attacking religion,

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Id. at 68. Gerald Weissmann, The Facts of Evolution: Fighting the Endarkenment, 19 THE FASEB J. 1581, 1581 (2005). 174 Id. at 1581–82. 175 Ernst Mayr, Darwin’s Influence on Modern Thought, SCI. AM., Nov. 24, 2009, at 79, 81 (emphasis added). 176 Id. at 80 177 NILES ELDREDGE, TIME FRAMES: THE RETHINKING OF DARWINIAN EVOLUTION AND THE THEORY OF PUNCTUATED EQUILIBRIA 13 (1985). 173

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maintaining that people believe in religion due to “insecurity and need for certainty.”178 Harvard professor Stephen Pinker writes that “we are outcomes of natural selection” and says that as opposed to religious explanations, “[t]his momentous fact explains our deepest strivings.”179 Pinker boldly explains that “evolution challenges the literal truth of the creation story in the Bible and thus the authority that religion draws from it”180 and suggests that religion is therefore untrustworthy: “As one creation minister put it, ‘If the Bible gets it wrong about biology, then why should I trust the Bible when it talks about morality and salvation?’”181 Pinker also frames “monotheistic religions” as being opposed to evolution, claiming they have “persecuted . . . the theory of evolution.”182 Pinker wrote in Time, “[t]he brain is a product of evolution, and just as animal brains have their limitations, we have ours,”183 while also taking aim at traditional religious explanations of consciousness. In his book Darwin Loves You: Natural Selection and the Reenchantment of the World, Rutgers English professor George Levine imagines a “secular enchantment” of the world, building a secular culture upon Darwin wherein the world is “mindless and godless . . . without gods and traditional forms of consolation.”184 Levine sees Darwin as “as an apostle of secularism” and seeks to use Darwin “as a model for the way science and the secular can inhabit the enchanted world.”185 Michael Shermer, psychologist and founder of Skeptic Magazine, asserts that “[t]here is no God, intelligent designer, or anything resembling

178

Gregory A Petsko, It Is Alive, ASBMB TODAY, August 2008, at 3, 3–4, http://www.asbmbtoday-digital.com/asbmbtoday/200808/; Gregory A. Petsko, It is alive, GENOME BIOLOGY (June 23, 2008), http://www.genomebiology.com/2008/9/6/106. 179 STEVEN PINKER, THE BLANK SLATE: THE MODERN DENIAL OF HUMAN NATURE 52 (2002). 180 Id. at 128. 181 Id. 182 Steven Pinker, Introduction to WHAT IS YOUR DANGEROUS IDEA, at xxiii, xxiv (John Brockman ed., 2007). 183 Steven Pinker, The Brain: The Mystery of Consciousness, TIME (Jan. 29, 2007), http://www.time.com/time/magazine/article/0,9171,1580394,00.html. 184 LEVINE, supra note 88, at 25–26 (2006). 185 Id. at 205, 250.

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the divinity as proffered by the world’s religions,”186 and believes that with the acceptance of Darwinism, “[t]he theory of top-down intelligent design of all life by or through a supernatural power was replaced with the theory of bottom-up natural design through natural forces.”187 Tufts philosopher Daniel Dennett describes natural selection as “Darwin’s dangerous idea” and a “universal acid” which “eats through just about every traditional concept”—including religion, because Darwin taught that life arose due to a “mindless and mechanical . . . algorithm” that is the result of “blind chance—coin flips if you like—and nothing else.”188 His book Breaking the Spell: Religion as a Natural Phenomenon not only staunchly promotes evolution and evolutionary explanations for the origin of religion, but seeks to strip its readers of their religious beliefs. Dennett declares “a moral imperative to spread the word of evolution”189 and argues that “[e]verything we value—from sugar and sex and money to music and love and religion—we value for . . . evolutionary reasons, free-floating rationales that have been endorsed by natural selection.”190 According to Dennett, “Religious practices can be accounted for in the austere terms of evolutionary biology.”191 He compares belief in God to “the lore about Santa Claus or Wonder Woman” or an “imaginary friend,” and compares religion to an ant whose “brain has been commandeered by a tiny parasite. . . .”192 Dennett realizes that such arguments have implications for religious persons, for he expressly admits his intent to convert people away from their religious belief: I appreciate that many readers will be profoundly distrustful of the tack I am taking here. They will see me as just another liberal professor trying to cajole them out of some of their

186

Michael Shermer, Michael Shermer, in WHAT WE BELIEVE BUT CANNOT PROVE: TODAY’S LEADING THINKERS ON SCIENCE IN THE AGE OF CERTAINTY 37, 38 (John Brockman ed., 2006). 187 MICHAEL SHERMER, WHY DARWIN MATTERS: THE CASE AGAINST INTELLIGENT DESIGN, at xxii (2006). 188 DANIEL C. DENNETT, DARWIN’S DANGEROUS IDEA: EVOLUTION AND THE MEANINGS OF LIFE 59, 63 (1995). 189 DANIEL C. DENNETT, BREAKING THE SPELL: RELIGION AS A NATURAL PHENOMENON 268 (2006). 190 Id. at 93. 191 Id. 192 Id. at 3, 210, 216.

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convictions, and they are dead right about that—that’s what I am, and that’s exactly what I’m trying to do.193 Dennett further admits that his goal is to increase the political power of atheists, writing that “in the future, if more of us brights [a term for atheists] will just come forward and calmly announce that of course we no longer believe in any of those Gods, it will be possible to elect an atheist to some office higher than senator.”194 In a collection of writings by scientists who emphatically promote evolution, neuroscientist and best-selling author Sam Harris writes that “Science Must Destroy Religion” because misplaced “religious tolerance” has “obliged us to lie to ourselves—repeatedly and at the highest levels— about the compatibility between religious faith and scientific rationality.”195 Harris decries the “ignorance”196 of those who doubt evolution while protesting “the absurdity of most of our religious beliefs”197 and stating that “[r]eligion persuades otherwise intelligent men and women to not think, or to think badly.”198 Harris’s views have even been presented in the world’s top scientific journal. In a 2007 op-ed by Harris published in Nature, he argues that “Scientists should unite against [the] threat from religion,”199 and laments that Francis Collins, a Christian and evolutionist, engaged in “high-minded squeamishness”200 when asserting that religion and evolution are compatible. Harris castigates Nature for praising Collins’ book which sought to reconcile evolution with religion, asking “What does the ‘mode of thought’ displayed by Collins have in common with science? The Language of God should have sparked gasping outrage from the editors at Nature.”201

193

Id. at 53. Id. at 245. 195 Sam Harris, Science Must Destroy Religion, in WHAT IS YOUR DANGEROUS IDEA?, supra note 182, at 148, 148. 196 SAM HARRIS, THE END OF FAITH: RELIGION, TERROR, AND THE FUTURE OF REASON 230 (paperback ed., 2005) (2004). 197 Id. at 48. 198 Id. at 236–37. 199 Sam Harris, Letter to the Editor, Scientists Should Unite Against Threat from Religion, 448 NATURE 864 (2007). 200 Id. 201 Id. 194

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With so many major media sources discussing the “crusade against religion” by Dawkins and other scientists who are promoting evolution, a reasonable person observing such cultural trends would perceive an antireligious association with the advocacy of evolution. And the public is well aware of these trends. Newsweek covered Dawkins as an “evolutionary biologist” fighting against religion, explaining that Dawkins views evolution as antithetical to faith because “Darwin appears to rob God of credit for his crowning achievement, which is us.”202 Wired stated that “Dawkins is openly arguing that evolution must lead to atheism”203 and Time quoted Dawkins saying that “Darwin provided a simpler explanation” than the view that God created life.204 P.Z. Myers portrayed the Time article as with a graphic depicting God and Darwin in a fight and asking “Who will survive this debacle of biblical proportions?”205 After reporting on a conference where Eugenie Scott, Dawkins, Sam Harris, and others spoke, a news article entitled, “Religion Must Be Destroyed, Atheist Alliance Declares,” reported that the message at the conference was that “[s]cience must ultimately destroy organized religion.”206 While not all evolutionary scientists would publicly join Dawkins et al.’s crusade for atheism, many leading proponents of evolution have maintained that under evolution, our species arose via accidental and unpredictable mechanisms that operated without divine oversight. As the influential biologist Jacques Monod wrote, with “the understanding of the random physical basis of mutation that molecular biology has provided, the mechanism of Darwinism is at last securely founded, and man has to realize that he is a mere accident.”207 This view is commonly associated with advocacy of evolution, but many reasonable informed observers would consider it atheistic and antithetical to traditional religious viewpoints.

202

Jerry Adler, The New Naysayers, NEWSWEEK (Sept. 10, 2006), http://www.newsweek. com/new-naysayers-109697. 203 Wolf, supra note 134. 204 David Van Biema, supra note 61. 205 P.Z. Meyrs, Time Should Have Used This for Their Cover, PHARYNGULA (NOV. 6, 2006), http://scienceblogs.com/pharyngula/2006/11/06/time-should-have-used-this-for/. 206 Matt Purple, Religion Must Be Destroyed, Atheist Alliance Declares, CNSNEWS.COM (July 7, 2008), http://www.cnsnews.com/news/article/religion-must-be-destroyed-atheistalliance-declares. 207 HORRACE F. JUDSON, THE EIGHTH DAY OF CREATION 192 (expanded ed. 1996) (1979).

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In 2005, 39 Nobel Laureates wrote the Kansas State Board of Education backing the teaching of evolution. They framed evolution in terms that most religious persons would find objectionable, explaining that “evolution is understood to be the result of an unguided, unplanned process of random variation and natural selection.”208 Indeed, numerous articles in scientific journals have explained the processes behind Darwinian evolution as being “random,” “chance,” “unplanned,” or “undirected.”209 But no 208

Letter from Alexi A. Abrikosov et al., to Kansas State Board of Education (Sept. 9, 2005), http://media.ljworld.com/pdf/2005/09/15/nobel_letter.pdf (on file with author). See Scott Rothschild, Nobel Laureates Urge Rejection of Intelligent Design, LAWRENCE J. WORLD (Sept. 15, 2005), http://www2.ljworld.com/news/2005/sep/15/nobel_laureates_ urge_rejection_intelligent_design/?breaking#comments. 209 See Darwin’s Detractors, 358 NATURE 698 (1992) (supporting the view that evolution is “undirected”); Crispin J. Miller & Teresa K. Attwood, Bioinformatics Goes Back to the Future, 4 NATURE REVS. MOLECULAR CELL BIOLOGY 157, 157 (2003) (“Underpinning this idea is the assumption that genes that have similar functions have often diverged from a common ancestor (that is, they are related by homology), and that this divergence occurs by a process of random mutation that results in evolutionarily more distant sequences becoming progressively less similar to one another.”); T.H. Morgan, Chance or Purpose in the Origin and Evolution of Adaptation, 31 SCI. 201, 202 (1910) (“To the majority of evolutionists accepting the theory of natural selection, evolution is the result of accidental variation; it is haphazard or due to chance. By taking this ground the selectionist feels that he stands on the evidence of facts, for ‘chance’ variations he holds can be demonstrated to occur, and secondly that he escapes the onus of explaining how the adaptive variations arise, for he believes that there is no relation between the creation of something new and the part it subsequently plays in the welfare of the species.”); Russel Lande, Genetics and Demography in Biological Conservation, 241 SCI. 1455, 1455 (1988) (describing a process of evolution as “random genetic drift” and “random fluctuations in gene frequencies”); Jerry A. Coyne, Genetics and Speciation, 355 NATURE 511, 514 (1992) (describing a process of evolution as “random genetic drift”); H. Allen Orr, The Genetic Theory of Adaptation: A Brief History, 6 NATURE REVS. GENETICS 119, 122 (2005) (“The essence of Darwinian evolution is that populations must attempt this return by producing mutations that are random with respect to the organism’s need, that is those that have random direction in phenotypic space.”); Stephen Jay Gould, Darwinism and the Expansion of Evolutionary Theory, 216 SCI. 380, 381 (1982) (“The claim for creativity has important consequences and prerequisites that also become part of the Darwinian corpus. Most prominently, three constraints are imposed on the nature of genetic variation (or at least the evolutionarily significant portion of it). . . . It must be undirected”; “The essence of Darwinism lies in a claim that natural selection is the primary directing force of evolution, in that it creates fitter phenotypes by differentially preserving, generation by generation, the best adapted organisms from a pool of random variants . . . that supply raw material only, not direction itself.”); James E. Darnell, Jr., Implications of RNA · RNA Splicing in Evolution of Eukaryotic Cells, 202 SCI. 1257, 1259 (1978) (“When a polypeptide that could perform a specific function first arose, association with other randomly evolved peptides might have resulted in enhancement,

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scientific article laid out these views better than Francisco J. Ayala’s article, “Darwin’s greatest discovery: Design without designer,” published in Proceedings of the National Academy of Sciences USA in 2007. Ayala, who is a leading evolutionary biologist and former president of the American Association for the Advancement of Science, explained that “[c]hance is . . . an integral part of the evolutionary process” because “[t]he mutations that yield the hereditary variations available to natural extension, or regulation of that function.”); In Brief, 4 NATURE REVS. GENETICS 405, 405 (2003) (“Lenski et al. show that digital organisms—computer programs that replicate, mutate and compete in a computational environment—can model the origin of traits through random mutation and natural selection.”); Benjamin Prud’homme & Sean B. Carroll, Monkey See, Monkey Do, 38 NATURE GENETICS 740, 741 (2006) (“Evolution results from the interplay between chance (random mutations) and necessity (directional selection).”); Elizabeth Pennisi, Nature Steers a Predictable Course, 287 SCI. 207, 207 (2000) (“Some evolutionary theorists have argued that ‘genetic drift,’ random gene changes that accumulate over time, underlies the evolution of new species. Thus, even with natural selection, evolution’s course should be rather unpredictable and not likely to be repeated time, and time again, they concluded.”); Jack L. King & Thomas H. Jukes, Non-Darwinian Evolution, 164 SCI. 788, 792 (1969) (“Once again, generation of evolutionary changes appears to originate primarily from random point mutations.”); Nicholas H. Barton & Peter D. Keightley, Understanding Quantitative Genetic Variation, 3 NATURE REVS. GENETICS 11, 11, 18 (2002); Gina Bari Kolata, Paleobiology: Random Events over Geological Time, 189 SCI. 625, 660 (Aug. 22, 1975) (“Randomness in evolution is not unexpected, Boucot points out.”); Tomoko Ohta & Motoo Kimura, Amino Acid Composition of Proteins as a Product of Molecular Evolution, 174 SCI. 150, 150, 153 (1971) (“The average amino acid composition of proteins is determined by the genetic code and by random base changes in evolution” and “the amino acid composition is determined largely by the existing genetic code and the random nature of base changes in evolution.”); Marilyn J. Roosinck, Symbiosis Versus Competition in Plant Virus Evolution, 3 NATURE REVS. MICROBIOLOGY 917, 917 (2005) (“The Darwinian model of evolution by natural selection states that evolution is a gradual process of change that is produced by the accumulation of random mutations followed by competitive selection.”); Robert L. Carroll, Between Water and Land, 437 NATURE 38, 39 (2005) (“Random mutations in one or the other of these developmental pathways could have led to alternative directions of evolutionary change.”); J.T. Cunningham, Hormones and Evolution, 130 NATURE 915, 915 (1932) (calling evolution the result of “random mutation[s]”); Mark Ridley, In His Own Time, 338 NATURE 26, 26 (1989) (reviewing PETER J. BOWLER, THE NON-DARWINIAN REVOLUTION: REINTERPRETING A HISTORICAL MYTH (1988)) (calling “the darwinian sort” of evolution “contingent, unplanned”); C.H. Waddington, Evolutionary Systems—Animal and Human, 183 NATURE 1634, 1634-35 (1959) (“One of the most firmly based doctrines of modern genetics is that mutation is a random process. . . . In present-day biology, evolution is envisaged as resulting from the interaction between, on one hand, the genetic system characterized by random mutation, and on the other, natural selection.”).

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selection arise at random.”210 He contends that by finding that “the design of living organisms can be accounted for as the result of natural processes,” Darwin completed a “conceptual revolution” that “is nothing if not a fundamental vision that has forever changed how mankind perceives itself and its place in the universe.”211 His article concludes that “[n]atural selection does not have foresight; it does not anticipate the environments of the future,” and thus “[i]n evolution, there is no entity or person who is selecting adaptive combinations.”212 Ayala concludes that “evolution conveys chance and necessity jointly enmeshed in the stuff of life; randomness and determinism interlocked in a natural process . . . .”213 Stephen Jay Gould was a leading evolutionary scientist of the 20th century who was called “America’s best-known champion of evolution.”214 According to Gould, “Darwin developed an evolutionary theory based on chance variation and natural selection imposed by an external environment: a rigidly materialistic (and basically atheistic) version of evolution.”215 In his book Ever Since Darwin, Gould explains that, “[b]efore Darwin, we thought that a benevolent God had created us,”216 but because of Darwin’s ideas, “biology took away our status as paragons created in the image of God.”217 In 2001, Gould echoed these views by writing that “[e]volution substituted a naturalistic explanation of cold comfort for our former conviction that a benevolent deity fashioned us directly in his own image . . . .”218 He also explains that according to evolution, humans ultimately arose due to haphazard chance: We are here because one odd group of fishes had a peculiar fin anatomy that could transform into legs for terrestrial creatures; because the earth never froze entirely during an 210

Francisco J. Ayala, Darwin’s Greatest Discovery: Design Without Designer, 104 (supp. 1) PROC. OF THE NAT’L ACAD. OF SCI. 8567, 8573 (2007), http://www.pnas.org/ content/104/suppl_1/8567.full.pdf. 211 Id. 212 Id. at 8572–73. 213 Id. at 8573. 214 GIBERSON & YERXA, supra note 54, at 49 (2002). 215 STEPHEN JAY GOULD, EVER SINCE DARWIN: REFLECTIONS IN NATURAL HISTORY 33 (1977). 216 Id. at 267. 217 Id. at 147. 218 Stephen Jay Gould, Introduction to CARL ZIMMER, EVOLUTION: THE TRIUMPH OF AN IDEA at ix, xi (2001).

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ice age; because a small and tenuous species, arising in Africa a quarter of a million years ago, has managed, so far, to survive by hook and by crook. We may yearn for a “higher” answer—but none exists.219 One of Gould’s most celebrated arguments contends that under the random character of evolutionary processes, there is no reason to expect that humanity had to exist. Yet many theists would perceive this very argument as opposing the traditional view that God foreknew and planned the existence of the human species. Gould writes: [W]e are the accidental result of an unplanned process . . . it’s all accident in a larger sense. We are the fragile result of an enormous concatenation of improbabilities, not the predictable product of any definite process. . . . There’s no reason to think that if the dinosaurs hadn’t become extinct, we and other mammals would have evolved as we did. . . . The impact of a large extraterrestrial body, that greatest of all improbabilities, may well have been the sine qua non of our existence. And hundreds of other historically contingent improbabilities were also essential parts of human evolution.220 Gould is very clear that there are “radical implications” of Darwinian evolution because natural selection is “deterministic,” and “chance in any form was anathema to many nineteenth-century thinkers, both then and now.”221 He further argues that “consciousness would not have evolved on our planet if a cosmic catastrophe had not claimed the dinosaurs,” and therefore “we owe our existence, as large and reasoning mammals, to our lucky stars.”222

219 DAVID FRIEND & EDITORS OF LIFE, THE MEANING OF LIFE: REFLECTIONS IN WORDS AND PICTURES ON WHY WE ARE HERE 33 (1991). 220

Stephen Jay Gould, Extemporaenous Comments on Evolutionary Hope and Realities, in DARWIN’S LEGACY 95, 101–02 (Charles L. Hamrum ed., 1983). 221 Stephen Jay Gould, In Praise of Charles Darwin, in DARWIN’S LEGACY, supra note 220, at 1, 4–5. 222 STEPHAN JAY GOULD, WONDERFUL LIFE: THE BURGESS SHALE AND THE NATURE OF HISTORY 318 (1989).

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Additionally, Gould contends that the “philosophical content” of Darwin’s theory poses a “challenge to a set of entrenched Western attitudes”: First, Darwin argues that evolution has no purpose. Individuals struggle to increase the representation of their genes in future generations, and that is all. If the world displays any harmony or order, it arises only as an incidental result of individuals seeking their own advantage—the economy of Adam Smith transferred to nature. Second, Darwin maintained that evolution has no direction; it does not lead inevitably to higher things. Organisms become better adapted to their local environments, and that is all. The “degeneracy” of a parasite is as perfect as the gait of a gazelle. Third, Darwin applied a consistent philosophy of materialism to his interpretation of nature. Matter is the ground of all existence; mind, spirit and God as well, are just words that express the wondrous results of neuronal complexity.223 Like Dawkins, Gould’s views do not represent those of an obscure academic. Gould was a celebrated Harvard professor, prolific author, and eminent paleontologist, and various humanist groups have called him “America’s unofficial evolutionist laureate.”224 But Gould’s views are shared by many other scientists. Gould’s Harvard colleague, the eminent sociobiologist Edward (E.) O. Wilson, is also a prolific author who sees evolutionary history as random and undirected. In his Pulitzer-prize winning book On Human Nature, Wilson explains that “[i]f humankind evolved by Darwinian natural selection, genetic chance and environmental necessity, not God, made the species.”225 In his widely acclaimed book Consilience, Wilson argues that

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GOULD, supra note 215, at 12–13. See Stephen Jay Gould Papers, 1942–2004., STANFORD UNIV. LIBRARIES, https://lib. stanford.edu/notable-acquisitions/stephen-jay-gould-papers-1942-2004 (last visited Nov. 29, 2015). 225 EDWARD O. WILSON, ON HUMAN NATURE 1 (2d ed. 2004) (1978). 224

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“evolution by natural selection proceeds, as the French biologist Jacques Monod once put it (rephrasing Democritus), by chance and necessity.”226 In an article in Harvard Magazine subtitled, “The consequences of Charles Darwin’s ‘one long argument,’” Wilson further expounds a lack of purpose behind evolution: [L]ife has diversified on Earth autonomously without any kind of external guidance. Evolution in a pure Darwinian world has no goal or purpose: the exclusive driving force is random mutations sorted out by natural selection from one generation to the next.227 Wilson writes that the “evolutionary epic . . . is as intrinsically ennobling as any religious epic. Material reality discovered by science already possesses more content and grandeur than all religious cosmologies combined.”228 He maintains that “the idea of a biological God, one who directs organic evolution and intervenes in human affairs (as envisioned by theism), is increasingly contravened by biology,” and envisions a showdown between religion and evolution-based science where the “eventual result of the competition between the two world views . . . will be the secularization of the human epic and of religion itself.”229 He also believes that a final account of human origins lies in evolution: [L]ife as we know it has arisen by evolution. . . . [T]he human brain and all its activities have arisen from the same earthbound, autonomous process. Hence no more complicated explanation is needed to account for human existence, either scientifically or spiritually.230

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EDWARD O. WILSON, CONSILIENCE: THE UNITY OF KNOWLEDGE 140 (Vintage Books 1999) (1998). 227 Edward O. Wilson, Intelligent Evolution: The Consequences of Charles Darwin’s “One Long Argument”, HARV. MAG. (Nov.–Dec. 2005), http://harvardmagazine. com/2005/11/intelligent-evolution.html. 228 Edward O. Wilson, The Biological Basis of Morality, THE ATLANTIC (Apr. 1998), http://www.theatlantic.com/magazine/archive/1998/04/the-biological-basis-ofmorality/377087/. 229 WILSON, supra note 226, at 290. 230 FRIEND ET AL., supra note 219, at 33.

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Echoing these views, leading paleoanthropologist Richard Leakey explains that “evolution is not here to produce us. We are fortunate to be here.”231 The famous evolutionary paleontologist from Harvard, George Gaylord Simpson wrote in his book, The Meaning of Evolution, that if evolution is true, then “[m]an is the result of a purposeless and natural process that did not have him in mind.”232 Simpson goes on to say that “[t]here is neither need nor excuse for postulation of nonmaterial intervention in the origin of life, the rise of man or any other part of the material cosmos.”233 John Maynard Smith, another prominent evolutionary biologist of the 20th century, writes that “[t]he universe doesn’t seem to me to be like the kind of entity that could have a higher purpose.”234 Oxford University chemist Peter Atkins is a noted public activist in favor of evolution235 who promotes similar views in his expositions of science to the public. He writes that “[s]cience is almost totally incompatible with religion” for “[s]cience reveals where religion conceals.”236 While advocating evolution, Atkins sharply contends that humanity is without purpose: Darwin effectively swept purpose aside in the living world. . . . All reimpositions of purpose are artifices of the religious to feed their faith. Humanity should accept that 231

Richard Leakey, African Origins: A Review of the Road, in DARWIN’S LEGACY, supra note 220, at 30. 232 GEORGE GAYLORD SIMPSON, THE MEANING OF EVOLUTION 179 (Yale University Press 1949) (Simpson goes on to say that it is “a gross misrepresentation to say we are just an accident or nothing but an animal.” However, it is clear that his view that “[p]lan, purpose, goal, all absent in evolution to this point, enter with the coming of man and are inherent in the new evolution, which is confined to him” is at odds with the outlook many traditional theists have on life.). 233 Id. at 135. 234 Robert Wright interviews John Maynard Smith on science and religion, MEANINGOFLIFE.TV, http://meaningoflife.tv/video.php?speaker=maynard%20smith&topic =scirel (last visited Oct. 19, 2015). 235 Michael Gross, US-style creationism spreads to Europe, 12 CURRENT BIOLOGY R265, R265–66 (2002). Peter Atkins, Review of Darwin’s Black Box, THE SECULAR WEB, http://www.infidels.org/library/modern/peter_atkins/behe.html (last visited Sept. 22, 2015). 236 Peter Atkins, Who Really Works Hardest to Banish Ignorance?, COUNCIL FOR SECULAR HUMANISM, https://web.archive.org/web/20060910183042/http://www. secularhumanism.org/index.php?section=library&page=atkins_18_2 (last visited Sep. Nov. 18, 2015).

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science has eliminated the justification for believing in cosmic purpose, and that any survival of purpose is inspired solely by sentiment.237 Stanford mathematician Keith Devlin likewise writes, “Living creatures capable of reflecting on their own existence are a freak accident, existing for one brief moment in the history of the universe. . . . There is no God, no Intelligent Designer, no higher purpose to our lives.”238 Robert Shapiro, a chemist and leading origin of life theorist at New York University, contends that understanding the natural chemical evolution of life is “dangerous” to religion because it leaves less room for God: “A successful scientific theory in this area would leave one less task for God to accomplish. The origin of life would be a natural . . . result of the physical laws that govern the universe. This latter thought falls directly in line with the idea of cosmic evolution[.] . . . No miracle or immense stroke of luck was needed to get it started.”239 Likewise, astronomer Carl Sagan states: “Were the Earth to be started over again with all its physical features identical, it is extremely unlikely that anything closely resembling a human being would ever again emerge. There is a powerful random character to the evolutionary process.”240 In Sagan’s view, “[t]he fossil record implies trial and error, an inability to anticipate the future, features inconsistent with an efficient Great Designer.”241 Ohio State University anthropologist Jeffrey McKee writes that, The links of the human evolutionary chain were riddled with chance, coincidence, and chaos, and we cannot fit the links together without a full appreciation of these factors. . . . Natural selection merely ensures nothing more than the coincidence of the survival of survivors . . . . There is no

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Peter Atkins, Will science ever fail?, 135 NEW SCI. 32, 32–35 (Aug. 8, 1992). Keith Devlin, We Are Entirely Alone, in WHAT IS YOUR DANGEROUS IDEA?, supra note 182, at 33, 33. 239 Robert Shapiro, We Will Understand the Origin of Life Within the Next Five Years, in WHAT IS YOUR DANGEROUS IDEA? 65, 67–68 (John Brockman ed., 2007). 240 CARL SAGAN, COSMOS 233 (Ballantine Books 2013). 241 Id. at 18–19. 238

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external selecting entity, just an intrinsic force with no particular direction beyond survival and reproduction.242 University of Illinois Urbana-Champaign psychologist Gary Cziko argues in his book Without Miracles: Universal Selection Theory and the Second Darwinian Revolution that, “Darwin discovered an explanation for the emergence of adapted complexity in nature that required neither a supernatural provider nor an instructive environment,” for evolution works “without purpose either on the part of the organism or on the part of a supernatural provider.”243 He explains that “variations are blindly and ignorantly produced” and are the result of “absolutely blind and ignorant luck,” meaning “Darwin’s account required no divine providence.”244 For Cziko, this means the “most appealing” part of modern evolutionary science is that “it provides this explanation without miracles.”245 Following the lead of the scientific community, many popular authors have advocated the view that evolution is random and blind, an idea which would be widely perceived as unfriendly to religion. National Geographic’s coffee table book The Incredible Machine explains that “we are children of chance” and that in light of our “evolutionary origins[,] . . . [h]uman life is indeed an accident, but it is a celestial accident, an accident so intricate that it will probably never be repeated[.]”246 Writing for the popular science news website LiveScience.com, science journalist Ker Than contends that “Darwin’s truth can be a hard one to accept” because

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JEFFREY K. MCKEE, THE RIDDLED CHAIN: CHANCE, COINCIDENCE, AND CHAOS IN HUMAN EVOLUTION 4, 18, 29 (2000) (Regarding Leonard’s thesis advisors, who are known scientific skeptics of evolution, McKee had harsh words: “DiSilvestro, Needham have become viewed as parasitic ticks hiding in the university’s scalp, who just got exposed by a close shave. I learned in Boy Scouts to twist the ticks when taking them out, so their heads don’t get embedded in the skin. Others prefer burning them off. What fate awaits OSU’s ticks remains to be seen.”). Robert Crowther, In Ohio Darwinist Admits Plan to Burn Evolution Critics, EVOLUTION NEWS AND VIEWS (Jan. 10, 2006, 5:17 PM), http://www.evolutionnews.org/2006/01/in_ohio_darwinist_admits_plan.html. 243 GARY CZIKO, WITHOUT MIRACLES: UNIVERSAL SELECTION THEORY AND THE SECOND DARWINIAN REVOLUTION 20, 102–03, 190 (1995). 244 Id. at 22, 283–84. 245 Id. at 326. 246 NAT’L GEOGRAPHIC SOC’Y, THE INCREDIBLE MACHINE 9, 11 (1994).

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the “random” nature of evolution implies that “humans are not the products of special creation and that life has no inherent meaning or purpose.”247 Commenting on such viewpoints, the former president of the French Academie des Sciences, Pierre-Paul Grasse, observed that “[d]irected by all-powerful selection, chance becomes a sort of providence, which, under the cover of atheism, is not named but which is secretly worshipped.”248 Likewise, historian Theodore Roszak argues that the chance component of Darwinism has been used to replace God: Darwin had fashioned a doctrine of evolution that was objective and secular—meaning devoid of value and (above all) of God. . . . The main purpose of Darwinism was to drive every last trace of an incredible God from biology. But the theory replaces the old God with an even more incredible deity—omnipotent chance.249 Surveys and reports on the affiliations and viewpoints of leading scientists suggest that many of them view evolution as antithetical to religion. At the time of a 1996 survey, as at the turn of the century, about 40% of scientists believed in God,250 but a related study of NAS scientists found “near universal rejection of the transcendent by NAS natural scientists.”251 This was particularly acute among NAS biologists, where only 5.6% believed in God.252 The authors contrasted the statements of NAS booklets on science and creationism and the realities of NAS membership: The [NAS Science and Creationism] booklet assures readers, “Whether God exists or not is a question about which science is neutral.” NAS President Bruce Alberts said: “There are many outstanding members of this academy who 247

Ker Than, Intelligent Design: An Ambiguous Assault on Evolution, LIVESCIENCE (Sep. 22, 2005, 8:42 PM), http://www.livescience.com/health/050922_ID_main.html (on file with author). 248 PIERRE-PAUL GRASSÉ, EVOLUTION OF LIVING ORGANISMS (1977). 249 THEODORE ROSZAK, UNFINISHED ANIMAL: THE AQUARIAN FRONTIER AND THE EVOLUTION OF CONSCIOUSNESS 101–02 (1975) (Emphasis removed). 250 See Edward J. Larson & Larry Witham, Scientists and Religion in America, 281 SCI. AM. 88, 89–93 (Sept. 1999). 251 Edward J. Larson & Larry Witham, Leading scientists still reject God, 394 NATURE 313, 313 (July 23, 1998). 252 Larson & Witham, supra note 250, at 88; Larson & Witham, supra note 251, at 313.

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are religious people who believe in evolution, many of them biologists.” Our survey suggests otherwise.253 Richard Dawkins reports that the Fellows of the Royal Society of London were polled on their religious beliefs. Of those that responded to the poll, only 3.3% “agreed strongly with the statement that a personal god exists” while 78.8% “strongly disagreed.”254 Dawkins commented that, “[w]hat is remarkable is the polar opposition between the religiosity of the American public at large and the atheism of the intellectual elite.”255 The results of the poll cited by Dawkins were confirmed by a poll conducted by William Provine and Gregory Graffin, published in The Scientist. Provine and Graffin surveyed 149 leading evolutionary biologists and found that 78% were “pure naturalists,” and strikingly, “[o]nly two out of 149 described themselves as full theists.”256 One study in the Journal of Experimental Social Psychology found that when evolutionary explanations for the origin of life were presented as strongly correct, this “may automatically decrease positive evaluations of religion.”257 Perhaps it is unsurprising that philosopher Michael Ruse compares evolution to a “secular religion” that “exclude[s] miracles:” [F]or many evolutionists, evolution has functioned as something with elements which are, let us say, akin to being a secular religion . . . And it seems to me very clear that at some very basic level, evolution as a scientific theory makes a commitment to a kind of naturalism, namely, that at some level one is going to exclude miracles and these sorts of things come what may.258

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Larson & Witham, supra note 252, at 313. DAWKINS, supra note 133, at 101–02. 255 Id. at 100. 256 Gregory W. Graffin & William B. Provine, Evolution, Religion and Free Will, AM. SCI. (July–Aug. 2007), http://www.americanscientist.org/issues/Id.3747,y.0,no.,content. true,page.2,css.print/issue.aspx. 257 Jesse Preston & Nicholas Epley, Science and God: An automatic opposition between ultimate explanations, 45 J. EXP. SOCIAL PSYCH. 238, 239 (2009), 258 Michael Ruse, Speech at the 1993 Annual Meeting of the American Association for the Advancement of Science symposium: The New Antievolutionism (Feb. 13, 1993), http://www.arn.org/docs/orpages/or151/mr93tran.htm. 254

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Indeed, leading evolutionary scientists claim that that evolutionary biology itself is grounded in the assumption that there are no divine influences. Richard Lewontin explains how science must adopt a methodology which assumes materialism and excludes a “Divine Foot,” regardless of the state of the evidence: [W]e have a prior commitment, a commitment to materialism. It is not that the methods and institutions of science somehow compel us to accept a material explanation of the phenomenal world, but, on the contrary, that we are forced by our a priori adherence to material causes to create an apparatus of investigation and a set of concepts that produce material explanations… that materialism is absolute, for we cannot allow a Divine Foot in the door.259 These examples are not meant to imply that all evolutionary scientists are atheists or that evolution mandates atheism. Nor does this article intend to pass judgment on whether these commentators’ views on the relationship between evolution and religion are correct. Nonetheless, many scientists and scholars of religion believe that evolution has antireligious implications and have advocated evolution alongside antireligious activism. As seen, this can carry into both their communication of evolution to the public and their treatment of scientists who doubt Darwinism. There undoubtedly exists a trickle-down effect into how the public perceives evolution. It seems clear that numerous leading scientists have promoted evolution in a fashion that many theists would find offensive. The vast majority of evolutionary biologists are atheists, and some have explicitly used evolution as a means of advocating atheism. Many scientists have claimed that evolution implies that humanity’s existence is ultimately the result of a purposeless and accidental processes—a claim that would be perceived as inimical to the fundamental tenets of most theistic religions. Still others have described evolution as a force that undermines religion, and have called their fellow scientists to join a fight against religious beliefs. There are numerous instances within the writings of modern evolutionary scientists where evolution is advocated alongside anti-religious activism. 259

Richard C. Lewontin, Billions and Billions of Demons, N.Y. REV. BOOKS, Jan. 9, 1997, at 28 (emphasis added).

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Evolutionists cannot “uncouple” their theory from a history of advocacy alongside atheistic and other anti-religious messages. C. Evolution Advocacy in Biology Textbooks and by Educators In 1995, the National Association of Biology Teachers (NABT) adopted a statement claiming that evolution means that life developed via an “unsupervised, impersonal, unpredictable and natural process.”260 The NABT removed this language, but William Corben observes in the journal Science and Education that the removal provided an empty remedy because “[t]he problem is that ‘unsupervised and impersonal’ describes what many evolutionary biologists believe about the universe and they take this as a granted part of science.”261 (Indeed, Giberson and Yerxa point out that the NABT board was reluctant to discard the theologically charged language.262) In the wake of the NABT’s removal of the “unsupervised” and “impersonal” language, over 70 evolutionist biologists, including leading scientists such as Richard Lewontin, John Lynch, and Nial Shanks, sent a letter of protest to the NABT arguing that “evolution indeed is, to the best of our knowledge, an impersonal and unsupervised process.”263 Also attacking theistic evolutionists, the letter claimed that the notion that an intelligence is “supervising evolution in a way to perfectly mimic an unsupervised, impersonal process” is a viewpoint “that has been repeatedly invalidated on philosophical grounds ever since David Hume and well before Darwin.”264 They harshly criticized the NABT’s removal of the “unsupervised” descriptor for evolution: Science is based on a fundamental assumption: that the world can be explained by recurring only to natural, mechanistic forces. . . . [T]his is a philosophical position. . . . 260

See NABT Unveils New Statement on Teaching Evolution, 58 AM. BIOLOGY TEACHER 61–62 (Jan. 1996). 261 William W. Cobern, The Nature of science and the Role of Knowledge and Belief, 9 SCI. & EDUC. 219 (2000). 262 KARL W. GIBERSON & DONALD A YERXA, SPECIES OF ORIGINS: AMERICA’S SEARCH FOR A CREATION STORY 6–7 (2002). 263 David Oakley, Open Letter to NABT, NCSE, and AAAS, METANEXUS (Sep. 22, 2015), http://www.metanexus.net/essay/open-letter-nabt-ncse-and-aaas. 264 Id.

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[T]he NABT leaves open the possibility that evolution is in fact supervised in a personal manner. This is a prospect that every evolutionary biologist should vigorously and positively deny.265 This episode reveals that many evolutionary biologists adamantly maintain that evolution is “unsupervised.” Any student who believes that some personal, divine being actively supervised or directly intervened in life’s history would clearly perceive the NABT’s original statement, that evolution is “unsupervised” and “impersonal,” as directly conflicting with their religious beliefs. Textbook Descriptions of Evolution A large number of mainstream biology textbooks have used theologically charged language to describe evolution in terms that many would find offensive towards religion. During the Kitzmiller v. Dover trial, the plaintiffs’ leadoff expert witness who opposed the teaching of intelligent design was Brown University evolutionary biologist Kenneth Miller. Miller is also the author of prominent high school biology textbooks that heavily promote evolution, and five editions of his textbook, Biology, described evolution as a purposeless, undirected process: “[E]volution works without either plan or purpose . . . . Evolution is random and undirected.”266 At trial, Miller admitted during cross-examination that his popular textbook’s description of evolution would “requir[e] a conclusion about meaning and purpose that I think is beyond the realm of science.”267 Other editions of Miller’s textbook have used even harsher anti-religious language. Both the 1991 and 1994 editions of Miller & Levine’s Biology: The Living Science

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Id. (emphasis added) (Another archived version of the same letter instructs academics to contact Massimo Pigliucci, a widely known writer on evolution who now runs an evolutionary ecology lab at State University of New York, Stony Brook, in order to add their signature to the letter; See An Open Letter, http://www.asa3.org/ASA/education/origins/openletter.htm). 266 KENNETH R. MILLER & JOSEPH S. LEVINE, BIOLOGY 658 (1991), (2nd ed. 1993), (3rd ed. 1995), (4th ed. 1998), (5th ed. 2000), (emphasis in original). For a detailed discussion of Miller’s testimony on this topic, see Casey Luskin, Ken Miller’s “Random and Undirected” Testimony, EVOLUTION NEWS (Sep. 18, 2015), http://www. evolutionnews.org/2006/07/ken_millers_random_and_undirec.html. 267 Transcript of Testimony at 4, Kitzmiller v. Dover School District (2005) (No. 4:04CV-02688).

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left readers with a starkly anti-theistic passage on the implications of evolution: Darwin knew that accepting his theory required believing in philosophical materialism, the conviction that matter is the stuff of all existence and that all mental and spiritual phenomena are its by-products. Darwinian evolution was not only purposeless but also heartless—a process in which the rigors of nature ruthlessly eliminate the unfit. Suddenly, humanity was reduced to just one more species in a world that cared nothing for us. The great human mind was no more than a mass of evolving neurons. Worst of all, there was no divine plan to guide us.268 Multiple other textbooks have promoted evolution while asserting that there is no design, divine activity, or plan to the history of life: 

The textbook Invitation to Biology states that, The real difficulty in accepting Darwin’s theory has always been that it seems to diminish our significance. . . . [B]iology asked us to accept the proposition that, like all other organisms, we too are the products of a random process that, as far as science can show, we are not created for any special purpose or as part of any universal design.269

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The Cambridge University Press textbook Evolutionary Psychology emphasizes that “In evolution, there is no omnipotent being choosing which organism should survive and which should be consigned to oblivion, and there is no ultimate goal that the selection process is trying to achieve (see Dawkins, 1986).”270

268

JOSEPH S. LEVINE & KENNETH R. MILLER, BIOLOGY: DISCOVERING LIFE 152 (1992); JOSEPH S. LEVINE & KENNETH R. MILLER, BIOLOGY: DISCOVERING LIFE 161 (2nd ed. 1994) (emphasis in original). 269 HELENA CURTIS & N. SUE BARNES, INVITATION TO BIOLOGY 474 (3rd ed. 1981). 270 LANCE WORKMAN & WILL READER, EVOLUTIONARY PSYCHOLOGY 30 (2004).

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

Strickberger’s Evolution similarly explains that “the variability by which selection depends may be random, but adaptations are not; they arise because selection chooses and perfects only what is adaptive. In this scheme a god of design and purpose is not necessary.”271 Another edition states, “To Darwinians, all biology has had an accidental origin in the sense that hereditary variables arose at first randomly without purposeful foresight.”272

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Discovery Biology explains that “Darwin’s ideas on evolution and natural selection revolutionized biology and had a profound impact on many other fields, including literature, economics, religion” and explains “biological evolution is not guided by a ‘designer’ in nature.”273

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E. O. Wilson’s textbook states, “No forethought or master planning is implied here, only two different life patterns, both of which confer a high survival value on their species.”274

Perhaps the most blatant example of philosophical materialism in textbooks alongside the advocacy of evolution is found in Douglas Futuyma’s widely-used college text Evolutionary Biology: By coupling undirected, purposeless variation to the blind, uncaring process of natural selection, Darwin made theological or spiritual explanations of life superfluous. . . . Darwin’s theory of evolution, followed by Marx’s materialistic (even if inadequate or wrong) theory of history and society and Freud’s attribution of human behavior to influences over which we have little control, that provided a crucial plank to the platform of mechanism and

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MONROE W. STRICKBERGER, EVOLUTION 70 (3rd ed. 2000). BRIAN K. HALL & BENEDIKT HALLGRIMSSON, STRICKBERGER’S EVOLUTION: THE INTEGRATION OF GENES, ORGANISMS, AND POPULATIONS 60 (4th ed. 2008). 273 MICHAEL L. CAIN, HANS DAMMAN, ROBERT A. LUE & CAROL K. YOON, DISCOVER BIOLOGY 320, 331 (Andrew D. Sinauer ed., 2nd ed. 2002). 274 EDWARD O. WILSON ET AL., LIFE ON EARTH 9 (1973). 272

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materialism—in short, to much of science—that has since been the stage of most Western thought.275 Futuyma explains how Darwin removed purpose and design from biology, making such a theological foundation “completely superfluous”: The entire tradition of philosophical explanation by the purpose of things, with its theological foundation, was made completely superfluous by Darwin’s theory of natural selection. The adaptation of organisms—long cited as the most conspicuous evidence of intelligent design in the universe—could now be explained by purely mechanistic causes. . . . The profound, and deeply unsettling, implication of this purely mechanical, material explanation for the existence and characteristics of diverse organisms is that we need not invoke, nor can we find any evidence for, any design, goal, or purpose anywhere in the world, except for human behavior.276 Many other textbooks describe human existence as haphazard or unplanned. To give a few examples: 

Raven & Johnson’s 2000 edition of their popular high school text, Biology, contains an interview with Stephen Jay Gould stating that “[h]umans represent just one tiny, largely fortuitous, and late-arising twig on the enormously arborescent bush of life.”277

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Guttman’s Biology teaches that all species—including our own—arose “just by chance,” which is dictated by the “cosmic dice.”278

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Haviland’s Anthropology affirms “The Nondirectedness of Evolution,” and contends that human origins “was made possible only as a consequence of historical accidents” and

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DOUGLAS J. FUTUYMA, EVOLUTIONARY BIOLOGY 5 (3rd ed. 1998). Id. at 8 (emphasis in original). 277 PETER H. RAVEN & GEORGE B. JOHNSON, BIOLOGY 15 (5th ed. 1999); PETER H. RAVEN & GEORGE B. JOHNSON, BIOLOGY 16 (6th ed. 2000) (quoting Stephen Jay Gould). 278 BURTON S. GUTTMAN, BIOLOGY 37 (1999). 276

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claims an “essentially random event—the collision [of earth] with a comet or asteroid—made possible our own existence.”279 

Nicholas Barton et al.’s textbook Evolution repeatedly emphasizes the “random” nature of Darwinian evolution, noting that since “natural selection is based on random death and extinction” it has been “widely felt to be an unacceptable mechanism.”280



Campbell, Reece, and Mitchell’s popular text Biology: Concepts & Connections attributes life to a series of chance events: “Chance has affected the evolutionary process in the generation of genetic diversity through mutation. Chance has also played a role at every major milestone in the history of life. Before life began, over 3.5 billion years ago, the chance union of certain small organic molecules ignited a chain of events that led to the first genes. Much later—about 65 million years ago— a chance collision between Earth and an asteroid may have caused mass extinctions. . . . One of the great wonders of our existence and of life itself is that it has all arisen through a combination of evolutionary processes and chance events.”281

Stephen Jay Gould’s textbook, A View of Life, teaches that “Darwin’s theory of natural selection has disturbed many people and exhilarated others by its insistence that the path of evolution and the harmony of nature is ‘purposeless,’” since “Darwin held a strong allegiance to philosophical materialism—the notion that matter is the ground of all existence and that ‘spirit’ and ‘mind’ are the products or inventions of a material brain. Darwin advocated a thoroughly naturalistic account of life, thus denying one of the deepest traditions of Western thought…”282 The textbook further explains how “biology demonstrated that we were not 279

William A. Haviland, Anthropology 123–24 (10th ed. 2003). NICHOLAS H. BARTON, DEREK E. G. BRIGGS, JONATHAN A. EISEN, DAVID B. GOLDSTEIN, & NIPAM H. PATEL, EVOLUTION 20–21, 413–15, 419, 435, 437, 475 (2007). 281 NEIL A. CAMPBELL, LAWRENCE G. MITCHELL, & JANE B. REECE, BIOLOGY: CONCEPTS AND CONNECTIONS, 390 (1994); NEIL A. CAMPBELL, LAWRENCE G. MITCHELL, & JANE B. REECE, BIOLOGY: CONCEPTS AND CONNECTIONS 396 (2nd ed. 1997). 282 SALVADOR EDWARD LURIA ET AL, A VIEW OF LIFE 584 (1981). 280

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created in the image of an all-powerful God but had evolved from monkeys by the same process that regulates the history of all organisms. . . . No man has contributed more to this sequential retreat from our cosmic arrogance than Darwin. In arguing that we are but one product of a natural process without purpose or inherent direction, Darwin forced us to seek meaning within ourselves, not in nature.”283 Strickberger’s textbook Evolution also gives an account of why evolution has historically “replaced” and “contradicted” faith: Many felt that evolutionary randomness and uncertainty had replaced a deity having conscious, purposeful, human characteristics. The Darwinian view that evolution is a historical process and present-type organisms were not created spontaneously but formed in a succession of selective events that occurred in the past, contradicted the common religious view that there could be no design, biological or otherwise, without an intelligent designer.284 The textbook specifically takes direct aim at religion, stating that evolution and science have “eroded” religion, which continues to survive only because it provides “solace” and “comfort”: Religion has been bolstered by paternalistic social systems in which individuals depend on the beneficiences of those more powerful than they are, as well as the comforting idea that humanity was created in the image of a god to rule over the world and its creatures. Religion provided emotional solace . . . . Nevertheless, faith in religious dogma has been eroded by natural explanations of its mysteries . . . .285 Thus, according to various leading evolution-promoting biology textbooks of the past few decades, evolution is variously a “random,” “blind,” “uncaring,” “heartless,” “undirected,” “purposeless,” “chance” process that acts “without plan” or “any ‘goals’” and requires accepting “materialism” because we are “not created for any special purpose or as part of any universal design” and “a god of design and purpose is not 283

Id. at 586–87. STRICKBERGER, supra note 272. 285 Id. at 70–71 (Jones & Bartlett, 3rd ed. 2000). 284

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necessary.”286 Many students would obviously find such views antithetical to their religious beliefs, and would perceive an anti-religious message on the part of evolution advocacy in textbooks. D. Evolution Advocacy by Atheist Organizations Atheist organizations have played a significant role in organizing political activism and spurring public support for evolution. The Freedom From Religion Foundation boasts that it “protests the teaching of creation in schools and aims to teach the public about atheism and free thought.”287 The Richard Dawkins Foundation for Reason and Science has founded the “Teacher Institute for Evolutionary Science,” to help teachers to better promote evolution.288 One European atheist organization supports “developing the foundations of a naturalistic world-view as well as a secular, evolutionary-humanistic ethics and politics and sustainably bringing them into social debates.”289 The American Humanist Association sees its mission as “correct[ing] false understanding of science by the public,” which includes “efforts to promote the teaching of evolution.”290 It is therefore unsurprising to find that atheists and atheist organizations have a long history of evolution advocacy in the public sphere—a history that causes the public to associate anti-religious advocacy with the advocacy of evolution. In Georgia, Selman v. Cobb County plaintiff Jeffrey Selman participated in a “Rally for Reason” sponsored by the Atheist Law

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KENNETH R. MILLER & JOSEPH LEVINE, BIOLOGY 658 (4th ed. 1998); BURTON S. GUTTMAN, BIOLOGY 36–37 (1999); STRICKBERGER, supra note 272; DOUGLAS J. FUTUYMA, EVOLUTIONARY BIOLOGY 2, (2nd ed. 1986); NEIL A. CAMPBELL, ET AL., BIOLOGY 412–13 (Benjamin Cummings, 5th ed. 2006); KENNETH R. MILLER & JOSEPH LEVINE, BIOLOGY 161, (2nd ed. 1994); WILLIAM K. PURVES, ET AL., LIFE: THE SCIENCE OF BIOLOGY 3 (6th ed. 2001); CURTIS & BARNES, supra note 270, at 475. 287 Steven Benowitz, Irreligious Researchers Differ In Their Views On Faith, THE SCI. MAG. (Apr. 17, 1995), http://www.the-scientist.com/?articles.view/articleNo/17360/ title/Irreligious-Researchers-Differ-In_Their-Views-On-Faith/. 288 See Bertha Vazquez, Sharing the Passion for Evolution Education, NAT’L CTR. FOR SCIENCE ASS’N (Aug. 13, 2015), http://ncse.com/blog/2015/08/sharing-passionevolution-education-0016580. 289 ATHEIST HELP & RESOURCES, http://richarddawkins.net (on file with author). 290 Id.

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Center.291 In relation to that case, the Georgia Humanist Society called for its members to act “In Defense of Humanism” and requested that they sign a petition to the Cobb County School Board to oppose an evolution disclaimer and write letters to members of the Georgia House Education Committee opposing an anti-evolution bill.292 The Internet has provided vast resources for atheists to collaborate in support of evolution. AtheistParents.org helped organize opposition to the teaching of intelligent design in New York.293 Internet Infidels is “a nonprofit educational organization dedicated to defending and promoting a naturalistic worldview on the Internet” where “naturalism entails the nonexistence of all supernatural beings, including the theistic God.”294 Their popular website has been used extensively to organize activism regarding the teaching of evolution in public schools.295 Such activism is regularly peppered with epithets against religion, including statements such as “THERE IS NO GOD . . . IT’S JUST SUPERSTITION,”296 “fundamentalist christians are no different than the Taliban,” “i heart roman lions,”297 Christians are “ignorant cretins,” and claims that legislation to challenge evolution would “produce brain dead christian zombies (or is that redundant?).”298 Such Internet collaboration, comments, and activism would clearly inspire perceptions of a close association between evolution advocacy, the promotion of atheism, and the denigration of religion. Eugenie Scott was the longtime executive director for the leading pro-evolution activist organization, the National Center for Science Education, and according to the journal Nature, she is “perhaps the nation’s 291 See Atheists to March Into Capitol May 6 to Protest Government Denial of Free Speech and Equal Access to Open Forum, YAHOO GROUPS, https://groups.yahoo.com/ neo/groups/alabamaatheists/conversations/messages/813 (last visited December 3, 2015). 292 In Defense of Humanism, http://geocities.com/gahumanists/defense.htm (on file with author). 293 ATHIEST PARENTS, http://www.atheistparents.org (last visited Dec. 4, 2015). 294 THE SECULAR WEB, http://www.infidels.org (last visited Sept. 22, 2015). 295 Id. 296 Vietnam Vet-BRIGHT, ATHEIST PARENTS (May 10, 2005, 11:10 AM), http://www. atheistparents.org/forum/viewtopic.php?t=6289 and http://www.atheistparents.org/forum/ viewtopic.php?t=5695. 297 Nathan, ATHEIST PARENTS (May 10, 2005, 11:46 AM), http://www.atheistparents.org/ forum/viewtopic.php?t=6289 and http://www.atheistparents.org/forum/viewtopic.php?t =5695. 298 THE SECULAR WEB, supra note 295.

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most high-profile Darwinist.”299 But Scott is a “philosophical naturalist”300 and a Notable Signer of the Humanist Manifesto III, which is published by the American Humanist Association.301 The Manifesto aspires to create a world with “a progressive philosophy of life . . . without supernaturalism” and makes broad metaphysical claims that “[h]umans are . . . the result of unguided evolutionary change. Humanists recognize nature as selfexisting.”302 Scott describes herself as an “evolution evangelist,”303 and is extremely influential in public advocacy for evolution. Other NCSE officials have similar anti-religious affiliations. Barbara Forrest, a member of the NCSE Board of Directors,304 served as an expert witness in the Kitzmiller v. Dover trial and is on the Board of Directors of the New Orleans Secular Humanist Association (NOSHA), which describes itself as “an affiliate of American Atheists, and [a] member of the Atheist Alliance International.”305 NOSHA is also an affiliate of the Council for Secular Humanism, which it describes as “North America’s leading organization for non-religious people,” and is an associate member of the American Humanist Association,306 which publishes the Humanist Manifesto III.307 In 1996, this American Humanist Association named Richard Dawkins as its “Humanist of the Year.”308 To underscore the antireligious mindset of these organizations, in his acceptance speech for the award before the American Humanist Association, Dawkins stated that “faith is one of the world’s great evils, comparable to the smallpox virus but 299

Geoff Brumfiel, Who Has Designs on your Students’ Minds?, 434 NATURE 1065 (2005). 300 Id. (“Being a philosophical materialist myself, I take some lumps for being so conciliatory.”). 301 Notable Signers, AM. HUMANIST ASS’N, http://www.americanhumanist.org/3/ HMsigners.htm, (last visited Sept. 22, 2015). 302 Humanism And Its Aspirations, AM. HUMANIST ASS’N, http://aha-files.s3. amazonaws.com/2/238/HumanismandItsAspirations.pdf (last visited Nov. 1, 2015). 303 RONALD L. NUMBERS, THE CREATIONISTS: FROM SCIENTIFIC CREATIONISM TO INTELLIGENT DESIGN 380 (expanded ed. 2006). 304 NCSE’s Board of Directors, NAT’L CTR. FOR SCI. EDUC., http://ncse.com/about/board (last visited Nov. 1, 2015). 305 NEW ORLEANS SECULAR HUMANIST ASSOCIATION, http://nosha.secularhumanism.net. 306 Id. 307 Humanism And Its Aspirations, AM. HUMANIST ASS’N, http://aha-files.s3.amazonaws. com/2/238/HumanismandItsAspirations.pdf. 308 Richard Dawkins, Is Science A Religion?, HUMANIST (Jan./Feb. 1997), http://thehumanist.com/humanist/articles/dawkins.html.

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harder to eradicate.”309 Forrest herself believes, “Philosophical naturalism is . . . the only reasonable metaphysical conclusion.”310 An organized annual celebration of Darwin’s birthday dubbed “Darwin Day” promotes public awareness about evolution. Taner Edis believes that Darwin Day is a good opportunity to advocate for nonreligious ideas because “promoting public acceptance of Darwin would also nudge people toward dropping their supernatural beliefs, even if they hang on for a while to vague liberal conceptions of divinity.”311 Darwin Day is organized by a group called “Darwin Day Celebration,” which has an advisory board boasting noted humanists and atheists such as Daniel Dennett, Eugenie Scott, Michael Shermer (founder of Skeptic Magazine), Richard Dawkins, and E. O. Wilson.312 Edis recounts the close linkage between Darwin Day and atheist organizations: [I]n the United States, there is a recent movement to celebrate February 12, Darwin’s birthday, as “Darwin Day.” This event is supported largely by humanist, freethought, and atheist-oriented groups, using slogans of science and humanity. Naturally, the scientific community responds positively, treating it as a public outreach . . . . Occasionally, university science departments cosponsor larger public events put on for Darwin Day, alongside atheist and humanist organizations.313 The Darwin Day Celebration website lists events held on Darwin Day, revealing that vast support of evolution advocacy comes from dozens of atheistic or humanistic organizations.314 Cambridge University paleontologist Simon Conway Morris observes that Darwin-Day celebrations “conveniently serve as a love-in, with much mutual selfcongratulation, for atheism.”315 When commenting on a Darwin Day 309

Id. Id. 311 EDIS, supra note 72, at 92. 312 Notable Signers, AM. HUMANIST ASS’N, http://www.americanhumanist.org/3/ HMsigners.htm, (last visited Sept. 22, 2015, 9:46 PM). 313 EDIS, supra note 312. 314 See INT’L DARWIN DAY, http://darwinday.org/. 315 Simon Conway Morris, Darwin was right. Up to a point., U.K. Guardian, Feb. 12, 2009, http://www.guardian.co.uk/global/2009/feb/12/simon-conway-morris-darwin. 310

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celebration, the director of Ithaca’s Museum of the Earth stated that his hometown is “filled with a lot of what might be called secular humanists, who are often some of Darwin’s biggest fans.”316 One such fan is a writer who goes by the name of “Agnostic Mom” and seeks to teach people how to “raise a healthy family without religion.” She reports that Darwin Day is a “humanist holiday” for her family.317 To give some examples of what can occur at Darwin Day celebrations sponsored by universities, in 2007 the University of California at San Diego’s Medical School booked a band, Dr. Stephen Baird & Opossums of Truth,318 whose website is called “Scientific Gospel,” and attacks religion while stating that “EVOLUTION IS THE WAY and RANDOMNESS ITS SOURCE.”319 One song played by the group entitled “Charlie Darwin” states that Darwin “showed there was no plan,” and the song “Randomness is Good Enough for Me” sings of their preference for “Random evolution” over a “godly plan.”320 Another website devoted to celebrating Darwin Day observes that one celebration sings “carols” with harshly anti-religions language: “Natural selection, No maker required; / The little life forms passed on traits they’d acquired. / Darwin showed us how animals, fungi and plants, / Arose from nature’s laws —Not from God, nor from chance.”321 Harvard University’s “Humanist Chaplaincy” celebrates Darwin Day, stating, The Darwin Day Celebration was founded on the premise that science, like music, is an international language that 316

Giselle Phelps, Ithaca honors Darwin, TIME WARNER CABLE NEWS (Feb. 9, 2007), http://news10now.com/content/all_news/tompkinscortland_county/?ArID=94663&SecID =111(on file with author). 317 Noell Hyman, Agnostic Mom: How to Have a Week-Long Darwin Celebration with Your Children, AM. HUMANIST ASS’N, http://americanhumanist.org/hnn/archives/?id=285 &article=5. 318 Darwin, Art, & Genealogy by Dr. Baird in 2007, SCI. GOSPEL PRODS. (Jan. 30, 2007), http://www.scientificgospel.com/cgi-bin/drbaird/redBlogReader.pl?action=readArticle &article=article_57&section=press. 319 SCIENTIFIC GOSPEL, http://www.scientificgospel.com/cgi-bin/showpage.pl?page= home (emphasis in original). 320 Dr. Stephen Baird and the Opossums of Truth, SCI. GOSPEL PRODS., http://www. scientificgospel.com/WaterOnMarsLyrics.pdf. 321 Id.

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speaks to all people in very similar ways. Charles Darwin is a worthy symbol on which to focus, in order to build a Global Celebration of Science and Humanity that is intended to promote solidarity among all people of the earth.322 Campus atheist groups also commonly oppose religion alongside evolution advocacy. For example, the Campus Atheists, Skeptics & Humanists (CASH) at the University of Minnesota praises a letter by a CASH member stating that “Evolution by natural selection is a natural force, based on the simple fact that those things that are able to survive and reproduce tend to do so. . . . It is a scientific fact.”323 Individuals for Freethought (IF) at Kansas State University a “non-theistic” group which supports “Evolution education, genial assinations of Creationism.”324 Their links page directs people to groups such as Secular Students Alliance (SSC) and Campus Freethought (CFA).325 The TalkOrigins Archive is a widelyused pro-evolution website that is recommend by various textbooks, universities, and major scientific organizations as a resource for learning about evolution.326 Yet the website has various pages that specifically oppose certain common forms of Christianity or Judeo-Christian theism.327 One article argues that that Judeo-Christian God causes “the greatest form of evil possible” and is guilty of “petty cruelty.”328 These represent merely a sample of a nearly endless supply of examples of evolution activism conducted by atheism-oriented 322

THE HUMANIST CHAPLAINCY AT HARVARD, http://www.harvardhumanist.org/ 2008/01/18/a-toast-to-darwin-darwin-day-celebration-feb-12/ (on file with author). 323 CAMPUS ATHEISTS, SKEPTICS, AND HUMANISTS, http://cashumn.org/index.php? option=com_content&task=view&id=45&Itemid=1. 324 KANSAS STATE UNIV. INDIVIDUALS FOR FREETHOUGHT, http://www.k-state.edu/ freethought/. 325 Links, KANSAS STATE UNIV. INDIVIDUALS FOR FREETHOUGHT, http://www.k-state.edu/ freethought/links.htm. 326 The Talk Origins Archive, Awards, Honors, and Favorable Notices for The Talk, THE TALK ORIGINS ARCHIVE, (Oct. 9, 2006), http://www.talkorigins.org/faqs/awards/. 327 Mark Isaac, Claim CH100, THE TALK ORIGINS ARCHIVE (Aug. 10, 2003), http://www. talkorigins.org/indexcc/CH/CH100.html; Mark Isaac, Claim CH130, THE TALK ORIGINS ARCHIVE (Aug. 10, 2003), http://www.talkorigins.org/indexcc/CH/CH130.html; Mark Isaac, Claim CH190, THE TALK ORIGINS ARCHIVE (Aug. 10, 2003), http://www. talkorigins.org/indexcc/CH/CH190.html; Mark Isaac, Claim CH110, THE TALK ORIGINS ARCHIVE (Aug. 10, 2003), http://www.talkorigins.org/indexcc/CH/CH110.html. 328 Mark Isaac, Claim CH030, THE TALK ORIGINS ARCHIVE (Aug. 10, 2003), http://www. talkorigins.org/indexcc/CH/CH030.html.

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organizations. There is no question that atheist or humanist organizations use Darwin to promote nonbelief and to oppose religion. Such groups also support activism for evolution education, often accompanied by the outright denigration of religion. An objective observer knowledgeable about these events would clearly perceive a close association between those who oppose religion and the advocacy of evolution. E. Evolution Advocacy in the Popular Media Many media sources have advocated for evolution while portraying religion in a negative light. But perhaps no other media force has promoted an anti-religious message in society alongside evolution advocacy more successfully than the famous play Inherit the Wind. A dramatization of the Scopes trial that was turned into a movie, Inherit the Wind is regularly studied by high school and college students.329 Eugenie Scott recounts that the play positively portrays its evolutionist protagonist as a “freethinker,” while “Antievolutionists and Fundamentalists in general were portrayed as foolish, unthinking, religious zealots,” with the leading anti-evolutionary minister depicted as a “bombastic . . . religious bigot.”330 She admits the anti-religious message of the film has “contributed to the negative public image of Fundamentalists.”331 Evolution historian Edward J. Larson concurs, writing that various theatrical retellings of the Scopes trial have promoted the view that “[t]he light of reason had banished religious obscurantism.”332 One of the main spokespersons for science in the late 20th century, Carl Sagan, was a prolific expositor of science to the public. One of his most famous statements is from his book Cosmos and the eponymous 1980 television series watched by millions where Sagan promotes evolution and proclaims, “the Cosmos is all that there is or ever was or ever will be.”333 The exact same statement—”the Cosmos is all that there is or ever was or ever will be”—was repeated in the opening scene of the 2014 reboot 329

EUGENIE SCOTT, EVOLUTION VS. CREATIONISM: AN INTRODUCTION 97–98 (2004). Id. at 96–97. 331 Id. at 96. 332 EDWARD J. LARSON, SUMMER FOR THE GODS: THE SCOPES TRIAL AND AMERICA’S CONTINUING DEBATE OVER SCIENCE AND RELIGION 246 (1997). 333 Robin Guest, Cosmos, YOUTUBE, (May 29, 2013), https://www.youtube.com/ watch?v=uLu1cTKBspI. 330

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of Cosmos which aired on Fox.334 Astrophysicist Neil deGrasse Tyson, the series’s host, strongly promotes evolution, explaining that life is the result of “unguided” and “mindless evolution.” Knowing Tyson’s personal views, this is unsurprising. Bill Moyers described Tyson as the “unabashed defender of knowledge over superstition and clearly the rightful heir to Carl Sagan’s curiosity and charisma.” When asked by Moyers whether faith and reason are compatible, Tyson answered, “I don’t think they’re reconcilable,” and later stated, “God is an ever-receding pocket of scientific ignorance.”335 A Tyson fansite condenses his worldview into the following mission—taken from an apparent Tyson quote: “The more I learn about the universe, the less convinced I am that there’s any sort of benevolent force that has anything to do with it, at all.”336 Other creators of the 2014 edition of Cosmos expressed their desire to use the series to attack what they view as religion. In an interview with the Los Angeles Times titled “Seth MacFarlane Hopes ‘Cosmos’ Counteracts ‘Junk Science,’ Creationism,” executive producer MacFarlane acknowledged the series’ intent to oppose “a resurgence of creationism and intelligent design quote-unquote theory.”337 Elsewhere MacFarlane has stated, “There have to be people who are vocal about the advancement of knowledge over faith.”338 Another executive producer of Cosmos is former Star Trek writer Brannon Braga. At an atheist conference in 2006, Braga described his involvement in Star Trek as creating “atheist mythology,” and his “conviction that religion sucks, isn’t science great, and how the hell can we get the other 95% of the population to come to their senses?” He said Star Trek provides a “template for a world” where “religion has been 334

Cosmos: A Spacetime Odyssey: Standing Up In The Milky Way, (21st Century Fox broadcast March 9, 2014), http://www.disclose.tv/action/viewvideo/168516/Cosmos_ A_Spacetime_Odyssey__Episode_1_Standing_up_in_the_Milky_Way/. 335 Bill Moyers, Neil deGrasse Tyson Tells Bill Moyers Why Faith and Reason Are Irreconcilable, ALTERNET (March 11, 2014), http://www.alternet.org/news-amp-politics/ neil-degrasse-tysons-new-show-cosmos-and-why-faith-and-reason-are-irreconcilable. 336 Tysonism, Mission, FACEBOOK, https://m.facebook.com/Tysonism?v=info&expand=1 (last visited Oct. 26, 2015). 337 Meredith Blake, Seth MacFarlane Hopes ‘Cosmos’ Counteract ‘Junk Science,’ Creationism, L.A. TIMES, March 7, 2014, http://www.darwinday.org/englishL/home/ 2003.html. 338 Stacey Grenrock Woods, Hungover with Seth MacFarlane, ESQUIRE (Aug. 18, 2009, 5:00 AM), http://www.esquire.com/features/tht-screen/seth-macfarlane-interview-0909.

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vanquished, and reason drives our hearts”—a future he “longs for.”339 Cosmos is apparently an attempt to achieve these goals, as Braga stated the series aims to combat “dark forces of irrational thinking,” since “religion doesn’t own awe and mystery. Science does it better.”340 It comes as no surprise, therefore, that the 2014 Cosmos series repeatedly attacked religion while advocating for evolution.341 Another one of the media’s most expensive forays into promoting evolution was the 2001 multi-million dollar, seven-part series, PBS’s Evolution. The series itself declares that, “For all of us, the future of religion, science and science education are at stake in the creation-evolution debate.”342 Daniel Dennett’s book Darwin’s Dangerous Idea provides the title for the first episode of the series, and says that “natural selection feeds on randomness” because “there’s no predictability about what particular accidents are going to be exploited in this process.”343 One critical review of the PBS’s Evolution series documents numerous the anti-religious insinuations of the series: [I]f this series is any indication, evolution has a lot to say about “whether God did or did not have anything to do with it.” In Episode One, Stephen Jay Gould pooh-poohed the idea that “God had several independent lineages and they were all moving in certain pre-ordained directions which pleased His sense of how a uniform and harmonious world ought to be put together.” In the same episode, Kenneth Miller argued that the vertebrate eye was not designed by God, but produced by evolution. And in Episode Five, Geoffrey Miller assured us that “it wasn’t God, it was our

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Star trek as atheist mythology – Brannon Braga, YOUTUBE, (March 13, 2012), https://www.youtube.com/watch?v=iJm6vCs6aBA. 340 Marshall Honorof, Rebooting ‘Cosmos’: Neil DeGrasse Tyson Explains Why Iconic TV Series Returns in 2014, YAHOO.COM (Jan. 14, 2014), http://news.yahoo.com/rebooting-39-cosmos-39-neil-degrasse-tyson-explains131522449.html. 341 See Casey Luskin, Cosmos: Materialism for the Masses, 37 CHRISTIAN RES. J. at 33 (2014). 342 Getting the Facts Straight: A Viewer’s Guide to PBS’s Evolution 11 (2001), http://www.reviewevolution.com/viewersGuide/viewersGuide.pdf. 343 Id.

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ancestors” that produced the modern human brain by “choosing their sexual partners.”344 Nonetheless, PBS’s Evolution series did try to mask anti-religious implications of evolution. Science writer Chris Mooney explains in Slate Magazine that “[PBS] Evolution’s attempt to divorce Darwinian science from atheism, though well intentioned, is finally naive.”345 According to Mooney, the natural implications of evolution are unavoidably antireligious: Darwinism presents an explanation for life’s origins that lacks any supernatural element and emphasizes a cruel and violent process of natural selection that is tough to square with the notion of a benevolent God. Because of this, many students who study evolution will find themselves questioning the religions they have grown up with.346 Mooney concludes, “The series strives to present a charming picture of a scientific theory that leaves religion relatively unchallenged, but Darwin’s life itself suggests otherwise.”347 In The God Delusion, Richard Dawkins recounts how Darwinism helped convert the popular science-fiction author Douglas Adams, author of The Hitchhiker’s Guide to the Galaxy, to “radical atheism,” stating that Adams “insisted on the ‘radical’ in case anybody should mistake him for an agnostic.”348 Adams concurs that Dawkins’ work was instrumental in his own journey to unbelief: I stumbled upon evolutionary biology, particularly in the form of Richard Dawkins’s books . . . and suddenly . . . it all fell into place. It was a concept of such stunning simplicity, but it gave rise, naturally, to all of the infinite and baffling complexity of life. The awe it inspired in me made the awe that people talk about in respect of religious experience

344

Id. Mooney, supra note 98. 346 Id. 347 Id. 348 DAWKINS, supra note 133, at 116. 345

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seem, frankly, silly beside it. I’d take the awe of understanding over the awe of ignorance any day.349 Adams follows in the footsteps of an earlier champion of sciencefiction, H.G. Wells, who contended that “Darwin and Huxley . . . will ultimately dominate the priestly and orthodox mind.”350 Norman and Jeanne Mackenzie’s biography of Wells recounts that he was “impressed and influenced” by Darwin, leading him to experience a conflict of religious faith that “was characteristic of the time, when the new science had dealt telling blows at revealed religion but offered no spiritually rewarding alternative to it.”351 Soon thereafter, Wells turned away from organized religion.352 Dan Barker, author of Losing Faith in Faith: From Preacher to Atheist and co-president of the Freedom from Religion Foundation, regularly promotes evolution while opposing religion, and has spoken publicly in many venues, including Good Morning America and Oprah.353 He believes, “Life is the result of the mindless ‘design’ of natural selection” and argues that under natural selection, “[h]umans, for example, did not have to evolve—any one of billions of viable possibilities could have adapted, making it quite likely that something would survive the ruthlessness of natural selection.”354 Popular “new atheist” author Christopher Hitchens likewise promotes evolution alongside arguments for atheism and harsh criticisms of religion. Hitchens’ book God is Not Great: How Religion Poisons Everything asserts that the “most devastating” criticism of religion is that “[r]eligion is man-made.”355 Hitchens strenuously argues for evolution and against alternatives to evolution. He calls intelligent design “tripe” and “a huge menacing lurch forward by the forces of barbarism.”356 While 349

Id. at 116–17. H.G. WELLS, EXPERIMENT IN AUTOBIOGRAPHY: DISCOVERIES AND CONCLUSIONS OF A VERY ORDINARY BRAIN (SINCE 1866), 162–63 (1934). 351 NORMAN MACKENZIE & JEANNE MACKENZIE, H.G. WELLS: A BIOGRAPHY 42 (1973). 352 Id. at 43. 353 DAN BARKER, LOSING FAITH IN FAITH: FROM PREACHER TO ATHEIST 10–11 (2006). 354 Id. at 123, 124. 355 CHRISTOPHER HITCHENS, GOD IS NOT GREAT: HOW RELIGION POISONS EVERYTHING 10 (Twelve 2009) (2007). 356 Id. at 282. 350

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supporting “[t]he evolution of humans,” he asserts that there is “[n]o divine plan” and that “[e]verything works without that assumption.”357 Hitchens has harsh words for religion as he praises Darwinian science: [I]n our hands and within our view is a universe of discovery and clarification, which is a pleasure to study in itself, gives the average person insights that not even Darwin or Einstein possessed . . . . Yet millions of people in all societies still prefer the myths of the cave and the tribe and the blood sacrifice. 358 As for the future of humanity, Hitchens asserts that “[i]f our presence here, in our present form, is indeed random and contingent, then at least we can conspicuously look forward to the further evolution of our poor brains.”359 The notoriously anti-Christian band Bad Religion was co-founded in 1980 by Gregory Graffin, a Cornell-trained evolutionary biologist who studied under William Provine.360 In 2008, Graffin received the “Outstanding Lifetime Achievement Award in Cultural Humanism” from the Humanist Chaplaincy at Harvard.361 The website Secular Student Alliance announces this award while praising Graffin for his work as a musician, evolutionary biologist, and non-believer: Harvard University’s prominent community of atheists and agnostics is poised to honor a rock star and scientist whom they argue is an ideal role model for the nation’s millions of non-religious youth . . . Dr. Greg Graffin, frontman of the influential punk rock band Bad Religion. Graffin, whose ‘day job’ since 1980 has been recording and extensive worldwide touring with a band boasting such hits as “How 357

Id. at 95. Id. at 282. 359 Id. at 94. 360 See PRESTON JONES, IS BELIEF IN GOD GOOD, BAD OR IRRELEVANT?: A PROFESSOR AND A PUNK ROCKER DISCUSS SCIENCE, RELIGION, NATURALISM & CHRISTIANITY (2006). 361 Tom Clark, Connections to Atheism and Humanism, NATURALISM, http://www. naturalism.org/philosophy/worldview-naturalism-in-depth/worldview-naturalism-astatus-report/connections-to-atheism-and-humanism (last visited Feb. 4, 2016). 358

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Could Hell be Any Worse” and “American Jesus,” earned his Ph.D in Zoology at Cornell and is a member of the UCLA’s Faculty in Biology, teaching Life Sciences courses covering Darwin and natural selection.362 For over 25 years, Bad Religion has promoted the view that religion (Christianity in particular) is not only wrong, but also “bad” and harmful to society, while simultaneously promoting the view that humans are nothing more than the products of a blind evolutionary process. As the theme song for Bad Religion states: “See my body, it’s nothing to get hung about. I’m nobody except genetic runaround. Spiritual era’s gone, it ain’t comin’ back.”363 In a book discussing how his music interfaces with his scientific and philosophical beliefs, Graffin explains: I am simply not interested in learning how modern knowledge can be reconciled with outdated theology. . . . God is an answer for people who have no idea how the physical world works. . . . Traditional religion offers nothing satisfying now because science explains such things better.364 Graffin explains his view of the religious implications of evolution: Attempting to show that the universe is elaborately designed doesn’t discount evolution and it certainly doesn’t suggest to me that there is a God. It just means that some very elaborate things can materialize given enough time. . . . From what I do know of the big bang theory, the earth and everyone on it could have started on their own, without any outside help due to evolution and how nature works. So where does God come in on that?365

362

Old August, Atheist Rocker / Scientist to be Honored at Harvard, SECULAR STUDENT ALL. (Mar. 13, 2008), http://www.secularstudents.org/node/2013. 363 Bad Religion Lyrics, AZ LYRICS, http://www.azlyrics.com/lyrics/badreligion/ badreligionthemesong.html (last visited Nov. 3, 2015). 364 Quoted in JONES, supra note 361, at 25, 33, 38. 365 Id. at 57, 128.

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He argues that evolution challenges theism because it invokes a process involving purposeless suffering.366 One of Graffin’s Bad Religion albums has a song echoing this sentiment: Tell me, where is the love? / In a careless creation / Where there’s no “above” / There’s no justice / Just a cause and a cure / And a bounty of suffering / It seems we all endure / And what I’m frightened of / Is that they call it “God’s love”367 In case there is any doubt that Graffin’s lyrics have a real-world impact upon public beliefs about evolution and religion, consider these excerpts from a fan letter written to Graffin by a teenage girl who follows Bad Religion: I just wanted to write you a letter explaining to you how much your music has really helped me. . . . I also looked at evolution. It’s impossible to look at monkeys and not see the connection from one species to another. My junior year my mom said something to me about biology and evolution, so I told her I believed in evolution. . . . My faith is in science and nature and coincidence. . . . Right now my mission is to collect all of your CDs so I can get even more of what I crave—something to connect with.368 Bad Religion represents a compelling example of the close association between the advocacy of evolution and the denigration of religion within the mind of popular American culture. Another pop-culture phenomenon that illustrates organized efforts to use media to attack religion using evolution is the “Blasphemy Challenge,” a campaign “challenging people to forsake God by sending a video to them, showing how creative they can be while denying God’s existence.” Donald Shedd, biology professor at Randolph College in Lynchburg, Virginia, was quoted saying that he is “not at all” surprised this is happening because “[a]n increasing number of people are prepared to 366

Id. at 74. Greg Graffin, God’s Love, on BAD RELIGION, THE EMPIRE STRIKES FIRST (Epitaph 2004), quoted in JONES, supra note 361, at 74. 368 Id. at 119–23. 367

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verbalize” their rejection of God. One news article reported that “Shedd is a follower of Richard Dawkins, who he calls the ‘Pope’ of atheism,” and states that “‘[t]he blasphemy challenge’ says it’s largely based on Dawkins’ teachings.”369 To give a taste of the mindset behind some involved with the “Blasphemy Challenge,” consider the defense given by HIV researcher Abigail Smith, a prominent advocate for evolution on the Internet: I don’t care if you paint a picture of the Virgin Mary and shit on it. I don’t care if you take your dogs to your old church and let them shit all over their parking lot (as long as you pick it up). I dont care if you act like a stereotypical ‘teenage atheist’ dress in all black and write songs about fucking Jesus in the ass. I dont care if you jump out of an airplane with ‘GOD IS DEAD’ written on your parachute. I dont care if you plant a garden of tulips in the shape of a pentagram. I dont care if you put an Evolve Fish on your car and wear an Atheist Atom on your jacket lapel. Im not going to call someone an idiot for expressing their views and frustrations in a way thats appropriate for them, especially when they are doing nothing wrong.370 It seems unsurprising that one undergraduate student summarized the Blasphemy Challenge in a news article as follows: “Anti-Darwinists claim that you’re killing God and pro-Darwinists claim he’s already dead.”371 Perhaps the most widely known pop-culture phenomena that has mocked and opposed religion while promoting evolution is the “Flying Spaghetti Monster” (FSM), which, according to the London Guardian, “Flying Spaghetti Monsterism” is “a satirical ‘religion’ created by Bobby

369

Blasphemy Challenge Targets Youngsters, WSLS NEWSCHANNEL 10, (Jan. 5, 2007) http://wsls.com/servlet/Satellite?pagename=WSLS%2FMGArticle%2FSLS_BasicArticle &c=MGArticle&cid=1149192509040&path=!news!localnews (on file with author). 370 ERV, Dawkins was only half right., ERV (MAR. 2, 2007), http://endogenousretrovirus. blogspot.com/2007/03/dawkins-was-only-half-right.html. 371 Liz Kemmerer, The evolution of intelligent design, FREE REPUBLIC (Apr. 27, 2006), http://freerepublic.com/focus/f-news/1623767/posts.

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Henderson, a physics graduate of Oregon State University.”372 The website reports that FSM began when Henderson “wrote to the Kansas Board of Education in June 2005, alerting them to the many people who believe that a Flying Spaghetti Monster created the universe, and demanding that science lessons be split three-ways: ‘One third time for intelligent design, one third time for Flying Spaghetti Monsterism, and one third time for logical conjecture based on overwhelming observable evidence.’” The FAQ then explains that “Henderson’s point is that the concept of a Flying Spaghetti Monster is every bit as rational a concept as intelligent design.” FSMism is becoming part of mainstream pop-culture. A January, 2007 article in the Toronto Star covered FSMism and reported that the website gets over 30,000 unique visitors per day, with about 400,000 hits per day when including “links to other sites.”373 In 2006, Henderson published The Gospel of the Flying Spaghetti Monster, sold on the FSM website,374 mocking the New Testament of Christianity as well as the names of holy books of many religions: [T]hat’s why we [FSM] need a book. (Doesn’t every religion have a book?) The Jews have the Bible (The Old Testicle), the Christians have ditto (The New Testicle), and Muslims have the Q-tip or whatever, the Jains have Fun with Dick and Jain, the Suffis have Sufis Up!, the Buddhists have the Bananapada, and the Hindus have the Ten Little Indians . . . .375 In a news article, NCSE deputy director Glenn Branch defends FSMism, saying it is merely “enjoying light hearted fun at the opposition’s expense” that is “probably healthy.”376 But if the “opposition” of the NCSE includes those who are mocked by FSMist materials, then it follows that opposition includes members of nearly every major world religion. 372

Donald Macleod, Q&A: Intelligent Design, LONDON GUARDIAN (June 1, 2007), http://education.guardian.co.uk/schools/story/0,,1582042,00.html. 373 Leslie Scrivener, In Praise of an Alternate Creation Theory: From the Department of one Scientific Theory is a Good as Another, Comes the Flying Spaghetti Monster, TORONTO STAR (Jan. 7, 2007), http://www.thestar.com/sciencetech/article/168629. 374 CHURCH OF THE FLYING SPAGHETTI MONSTER, http://www.venganza.org/ worship/fsm-book/ (last visited Oct. 24, 2015). 375 Bobby Henderson, THE GOSPEL OF THE FLYING SPAGHETTI MONSTER xiii (2006). 376 Scrivener, supra note 374.

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Branch’s comments supporting FSMism were endorsed by a writer with People for the American Way.377 Others have followed Henderson’s example in writing books endorsing FSM’s promotion of evolution and denigration of religion. Jonathan C. Smith, professor of psychology at Roosevelt University, wrote a book entitled God Speaks! The Flying Spaghetti Monster in His Own Words. He promotes evolution through FSM while mocking JudeoChristian beliefs: One day I decided to take the first six words of the Biblical creation story and, just for fun, look for anagrams. . . . Astonishingly, the very first anagram that emerged for “In the beginning was the word” was: “Then God threw in a big sin.” Confused and hoping for further edification, I searched for more anagrams, and found the equally disconcerting recombination: “Intertwined benign hogwash.” Now desperate, I tried the final words “and the word was God.” One emerged: “Warthogs now added.”378 Ignoring that Smith cites a verse from the Gospel of John in the New Testament, not the “Biblical creation story,” clearly both Smith’s and Henderson’s FSM books contain language mocking and denigrating both Western and Eastern religions. The FSM website is no different. It promotes evolution while denigrating Christianity and other traditional forms of theism. The site sells cards “[f]or the Holiday season” which portray a dead Christian fish symbol on one side, and on the other side show Michaelangelo’s Creation of Adam painting, where God is replaced by the Flying Spaghetti Monster.379 This image has been repeatedly used on websites, including the blog of Wired

377

Creationists Ramp up War on Satire, RIGHT WING WATCH (Jan.17, 2007), http:// rightwingwatch.org/2007/01/creationists_ra.html. 378 JONATHAN C. SMITH, GOD SPEAKS! THE FLYING SPAGHETTI MONSTER IN HIS OWN WORDS 7–8 (Janice M. Frum ed., 2006). 379 CHURCH OF THE FLYING SPAGHETTI MONSTER GREETING CARDS, http://www. venganza.org/greetcards.htm (Dec. 24, 2006).

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Magazine.380 Another graphic promoted on the site shows a nativity scene where an baby Jesus is replaced by the Flying Spaghetti Monster.381 Promotion of the Flying Spaghetti Monster is sometimes found alongside the denigration of religion in the media. For example in an op-ed in the Hattiesburg American, Bo Alawine explains that, “[e]volutionary theory is the foundation for all biological sciences and meets the tenets of the scientific method[,]” and also explains why that FSM is his “favorite” religion: There are numerous mono-theistic religions, such as Judaism, Christianity, Islam and, my personal favorite, Flying Spaghetti Monsterism (whose followers are called “Pastafarians”), all of whom have their own cosmogony.382 Wikipedia reported that even Richard Dawkins commonly discusses the Flying Spaghetti Monster in media appearances,383 but Dawkins is not the only scientist to embrace the Flying Spaghetti Monster. The FSM website boasts many “Academic Endorsements” of the site, many which are derogatory towards religion, incuding Steve Lawrence, PhD who writes: He has created the fundamental subatomic particles that form all matter in this universe in His own quivering image! You, me, the Earth, the stars . . . everything in the universe . . . are all built of trillions of tiny jiggling noodles, microscopic copies of our Divine Saucy Maker. Truly He is everywhere and in all things!384 380

See Brandon Keim, Evolution Beats Intelligent Design in Florida, WIRED BLOGS (Dec. 27, 2007), 381 FSM Nativity, CHURCH OF THE FLYING SPAGHETTI MONSTER, http://www.venganza. org/2006/12/12/fsm-nativity.htm (Nov. 25, 2007). 382 Bo Alawine, Intelligent Design Equals Creationism, HATTIESBURG AM. (Dec. 19, 2006), http://www.hattiesburgamerican.com/apps/pbcs.dll/article?AID=/20061219/ OPINION01/612190312. 383 Cited in The Cerebral Assassin, Can someone explain FSM to me?, YAHOO ANSWERS, https://answers.yahoo.com/question/index?qid=20070130150325AAjUJ3y (“The Flying Spaghetti Monster has been used by Richard Dawkins to demonstrate ideas from his book The God Delusion on several media appearances, including The Colbert Report and Talk of the Nation - Science Friday.”). 384 Academic Endorsements—page 1, CHURCH OF THE FLYING SPAGHETTI MONSTER, http://www.venganza.org/evidence/endorsements1/. (last visited Oct. 24, 2015).

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Chris Westbury writes, “Flying Spaghetti Monsterism may well provide the solid basis on which the good children of Kansas can build a just, rational, and virtuous life.”385 Alison Bernstein writes that “FSM is as good a set of beliefs as any religion.”386 Charles E. M. Dunlop, Ph.D, heaps praise upon FSM in a fashion which mocks traditional theistic religion: “Close observers of human behavior will note that Italians have long de facto recognized pastafarianism as a serious competitor to Catholicism, practicing the former more frequently and with even greater gusto” and mocks the Bible verse Phillippians 4:13: “With Him all things are pastable.”387 Taking a similar approach to FSM, Barrett Brown & Texas A&M University sociologist Jon P. Alston’s 2007 Cambridge House Press book, Flock of Dodos: Behind Modern Creationism, Intelligent Design & the Easter Bunny, promotes evolution while attacking fundamentalist and evangelical Christianity. One Rolling Stone Magazine author praised the book while attacking “born-again wackos”: Here’s the problem with America’s born-again wackos: only a gifted comic is capable of describing them, but no one with a sense of humor can stomach being around them. That’s why there are so few books like Flock of Dodos. With their painstaking attention to historical detail and amusingly violent writing style, Brown and Alston have given the religious right exactly the righteous, merciless fragging it deserves. I wish I could tie James Dobson down and make him eat every page.388 They attack creationists and Christianity, stating, “Yahweh could do nothing more to discredit the creationist movement by creating its most well-known proponents, if not in His own image, then in the image of some moderately retarded, would-be con artist. Heck, I wouldn’t put it past

385

Id. at 3. Id. 387 Id. 388 Matt Taibbi, Book Review (2007) (reviewing BARRETT BROWN, FLOCK OF DODOS: BEHIND MODERN CREATIONISM, INTELLIGENT DESIGN, AND THE EASTER BUNNY (2007)), http://www.amazon.com/Flock-Dodos-Behind-Creationism-Intelligent/dp/0978721306/ ref=tag_ti_title/104-2244305-1988716. 386

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him.”389 Likewise Joel Kilpatrick’s light-hearted book, A Field Guide to Evangelicals and their Habitat, states that evangelical Christians “think evolution is a federally sponsored lie.”390 The book is devoted to mocking evangelical and fundamentalist Christians. In his popular book, Monkey Girl: Evolution, Education, Religion and the Battle for America’s Soul, journalist Edward Humes retells the Kitzmiller v. Dover trial over the teaching of intelligent design. Humes purports to promote the view that religion and evolution are compatible in the book, however makes it clear that many have drawn anti-religious implications from evolution: By the middle of the nineteenth century, scientific proof of the existence of God seemed achingly, gloriously within reach. And then Charles Darwin took all that away, too, delivering in its place a world built in part by accident, in part by the brute, blind drive to survive—a purpose, to be sure, and a direction, but not a design. Chance, adaptability, and good fortune ruled this new world, where each species could not be seen, after all, as a master composer’s symphony, but as a desperate mechanic’s jury-rig of used parts. . . . Made in God’s image [was] gone. . . . The logic of Darwin, notwithstanding his own invocation of a creator in his writings, suggested that man’s ascendance was nothing more than a happy accident. . . . Life, intelligence, consciousness, and love were not gifts from God; it was all just a lucky break, a roll of the dice.391 Humes’ book’s website features a review from a senior writer for U.S. News and World Report published in a Sunday edition of the Los Angeles Times. The reviewer claimed it is “a cruel twist to evolutionists” that “human beings are ‘genetically disposed to believe in mysteries, miracles, God, and faith’”,392 attacking Christians and stating that he “only wish[ed]” he could “close” his eyes to the Christian “fundamentalism” 389

Id. JOEL KILPATRICK, A FIELD GUIDE TO EVANGELICALS & THEIR HABITAT 132 (2006). 391 EDWARD HUMES, MONKEY GIRL: EVOLUTION, EDUCATION, RELIGION AND THE BATTLE FOR AMERICA’S SOUL 4–5 (2007). 392 Kit R. Roane, Intelligent Dissent, LOS ANGELES TIMES (Feb. 4, 2007), http://articles. latimes.com/2007/feb/04/books/bk-roane4. 390

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Humes recounts in his book.393 That same day, secular humanist Chris Mooney also took aim at religious fundamentalists in the Los Angeles Times, stating that “the worst science abusers . . . [are] anti-evolution fundamentalists.”394 Such words are tame compared to the antireligious messages that accompany evolution advocacy on the Internet. To give one sample, on a popular science blog, “Dr. Joan Bushwell’s Chimpanzee Refuge,” where various professional scientists contribute, freelance writer Kevin Beck tells “faith-filled gasbag[s]” to “look up ‘arrogant.”395 Beck praises PZ Myers for “having the temerity to put to use his years of education and scholarship in exploding the stupid arguments of fundagelical Christians.”396 He contends that those who believe in the Bible accept “horseshit that has no inherent meaning,” and calls a hypothetical mother who questions evolution as “the little lamb . . . who is supremely arrogant.”397 Beck calls her a “thoroughly debunked shitslinger” and ends with a stinging attack upon religion: “It’s often struck me that religious belief is so arrantly fucked up that its adherents aren’t content to merely be wrong; they have to get things 100 percent backward most of the time as well. In fact, the whole house of cards seems to rely on this, especially in an increasingly skeptical world.”398 This sort of incendiary anti-religious rhetoric is extremely common in pro-evolution commentary on the Internet. As noted, these merely represent a sampling of popular writings and numerous other analogous examples could be found. But there are ample cases in the popular media to expect that many would perceive a history of attacking religion closely associated with the advocacy of evolution.

393

Id. Chris Mooney & Alan Sokal, Taking the Spin Out of Science, LOS ANGELES TIMES (Feb. 4, 2007), http://www.latimes.com/news/opinion/la-op-mooney4feb04,0,7924177. story?coll=la-opinion-rightrail. 395 Kevin Beck, Look up “arrogant,” you faith-filled gasbag!, Scienceblogs (Feb. 15, 2007), https://web.archive.org/web/20070307111304/http://scienceblogs.com/bushwells/2007/0 2/look_up_arrogant_you_faithfill.php?. 396 Id. 397 Id. 398 Id. 394

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F. Dysteleology in Evolution Advocacy According to Michael Shermer and MIT social scientist Frank Sulloway, “the number-one reason people offer for their belief in God is evidence of good design of the world.”399 For this reason, a common argument for evolution purports to show that the world is poorly designed or flawed, and therefore could not have been made by God. This form of argument, called “dysteleology,” purports stands in direct opposition to religious viewpoints. Because this form of pro-evolution argument depends directly upon attacking religious beliefs, and because it is common in scientific textbooks and popular media, it deserves special attention. Teleology is the study of design or purpose in natural phenomena. Dysteleological arguments typically begin by arguing that “God or a creator would not create natural phenomenon x.” The argument concludes that if x could not have been created by God, it therefore must have been produced by blind, naturalistic evolutionary processes. Dysteleological arguments are often associated with claims that evolution is “sloppy,” “painful,” or simply “tinkers” with biological structures. Regardless of whether these arguments are logically compelling or factually correct, the fact is they are commonly associated with evolution advocacy, having even been articulated in PBS’s popular series Evolution.400 As noted earlier, dysteleological arguments trace back to Darwin, who thought that a good, loving God could not have been responsible for much of what Darwin observed. Darwin instead chose to explain his observations through natural selection, as he argued, “[s]uch suffering, is quite compatible with the belief in Natural Selection,” and claimed that the “argument from the existence of suffering against the existence of an intelligent First Cause seems to me a very strong one; and the abundant presence of suffering agrees well with the view that all organic beings have been developed through variation and natural selection.”401

399

MICHAEL SHERMER, HOW WE BELIEVE: THE SEARCH FOR GOD IN AN AGE OF SCIENCE 78 (2000). 400 See PBS, Life’s Grand Design (Nov. 9, 2015), http://www.pbs.org/wgbh/evolution/ change/grand/page06.html. 401 CHARLES DARWIN, THE AUTOBIOGRAPHY OF CHARLES DARWIN 75 (W.W. Norton, 2005).

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Francisco J. Ayala, a prominent evolutionary biologist who is also a former Catholic priest (he believes it is “blasphemy to try to understand the world of physics and biology by reading the Bible”402) promotes a similar dysteleological argument for evolution and against intelligent design. He explains that intelligent design must be false, and evolution true, because God would never have made the “painful” structures we see in biology: [T]he ‘design’ of organisms is not ‘intelligent’, but rather quite incompatible with the design that we would expect of an intelligent designer or even of a human engineer, and so full of dysfunctions, wastes, and cruelties as to unwarrant its attribution to any being endowed with superior intelligence, wisdom, and benevolence. . . . The defective design of organisms could be attributed to the gods of the ancient Greeks, Romans, and Egyptians, who fought with one another, made blunders, and were clumsy in their endeavors. But, in my view, it is not compatible with the special action by the omniscient and omnipotent God of Judaism, Christianity, and Islam.403 Ayala even argued in Proceedings of the National Academy of Sciences USA that “[t]he design of organisms is not intelligent but imperfect and, at times, outright dysfunctional”404 and concludes elsewhere that only “[e]volution gives a good account of this imperfection.”405 In his best-selling book The End of Faith, Sam Harris asserts that “Biological truths are simply not commensurate with a designer God, or 402

“‘Most mainstream theologians, and most people who have read the bible thoughtfully, realize that the Bible it is not an elementary book of biology, or an elementary book of cosmology or of physics,’ said Ayala, a former Roman Catholic priest who received the National Medal of Science in 2001. ‘It amounts to blasphemy to try to understand the world of physics and biology by reading the Bible. That was not the purpose of the Bible . . . . It is a travesty to interpret the Bible that way.’” Hana and Francisco J. Ayala: Separate Careers, a Common Passion for Knowledge, AAAS NEWS ARCHIVES (Mar. 31, 2006), http://www.aaas.org/news/releases/2006/0331ayala.shtml. 403 Francisco J. Ayala, Design Without Designer Darwin’s Greatest Discovery, in DEBATING DESIGN FROM DARWIN TO DNA 55, 56, 71 (William A. Dembski and Michael Ruse eds., 2004). 404 Francisco J. Ayala, Darwin’s Greatest Discovery: Design Without Designer, 104 PROC. OF THE NAT’L ACAD. OF SCI. USA, 8567, 8573 (2007). 405 Ayala, supra note 404, at 70.

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even a good one” because “The perverse wonder of evolution is this; the very mechanisms that create the incredible beauty and diversity of the living world guarantee monstrosity and death. The child born without limbs, the sightless fly, the vanished species—these are nothing less than Mother Nature caught in the act of throwing her clay. No perfect God could maintain such incongruities.”406 These types of arguments even exist in textbooks. Douglas Futuyma’s 2005 text Evolution claims that “Darwin and subsequent evolutionary biologists have described innumerable examples of biological phenomena that are hard to reconcile with beneficent intelligent design” and “are inconsistent with the notion that an omnipotent Creator.”407 Barton et al.’s textbook Evolution teaches that “natural selection is an imperfect mechanism . . . evidence that natural selection is responsible for the appearance of design in the living world comes from characteristic imperfections in adaptation.”408 They conclude by explicitly arguing that: “adaptations in the natural world show just the kinds of imperfections that we would expect from natural selection but not from an omnipotent designer.”409 Stein & Rowe’s Physical Anthropology makes a similar argument that “[d]esign flaws can best be explained as the natural outcome of gradual modification through time through natural selection rather than as the handiwork of a divine force.”410 Freeman and Herron’s textbook Evolutionary Analysis argues that “the presence of vestigial traits . . . is inexplicable under special creation.”411 Stephen Jay Gould also cites allegedly poor design in nature as an argument against God and in favor of evolution: Orchids manufacture their intricate devices from the common components of ordinary flowers, parts usually fitted for very different functions. If God had designed a beautiful machine to reflect his wisdom and power, surely 406

SAM HARRIS, THE END OF FAITH: RELIGION, TERROR AND THE FUTURE OF REASON 172 (2004). 407 DOUGLAS J. FUTUYMA, EVOLUTION 49, 530 (2005). 408 NICHOLAS H. BARTON ET AL. , EVOLUTION 75 (Alexander Gann et al. eds., 2007). 409 Id. at 81. 410 PHILIP L. STEIN & BRUCE M. ROWE, PHYSICAL ANTHROPOLOGY 25 (Carolyn Henderson Meier et al. eds., 8th ed. 2003). 411 SCOTT FREEMAN & JON C. HERRON, EVOLUTIONARY ANALYSIS 32 (2nd ed. 2001).

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he would not have used a collection of parts generally fashioned for other purposes. Orchids were not made by an ideal engineer; they are jury-rigged from a limited set of available components. Thus, they must have evolved from ordinary flowers.412 George Levine views Darwin’s work as formulated to explain the origin of natural evil: Natural theology, the explanation of ‘adaptation’ that Darwin was determined to displace, is a kind of theodicy: it justifies the ways of God to man by showing that the world answers, as the Bridgewater Treatises were to formulate it, to ‘the Power, Wisdom, and Goodness of God.’ It demonstrates that God must exist and that a careful look at his creation will show that the evil within it is part of a loving plan for mankind. Darwin’s theory, on the other hand, is what I’ll call a geodicy, a demonstration that the world in all its wonderful diversity and stark contrasts makes sense entirely on its own terms, although without taking the satisfactions of human desire as its primary goal.413 Levine believes that “natural selection helps explain, as religion never satisfactorily could, the suffering in the world that so disturbed Darwin,” since “flaws in the mechanism . . . are clear evidence that there is no intelligent design behind construction of the eye.”414 He provides a scathingly anti-theistic interpretation of the film “March of the Penguins” on the grounds that God would never allow the pain experienced by the penguins, asking: “What designer with any competence and with any compassion at all would construct a mode of living and survival that entails so much pain, so much awkwardness, such clumsy reuse of organs and limbs apparently adapted for other purposes?”415 “Incompetent design” has even been celebrated at major meetings of scientific organizations. In 2005, Don Wise, professor emeritus of 412

STEPHEN JAY GOULD, THE PANDA’S THUMB: MORE REFLECTIONS IN NATURAL HISTORY 20 (1980). 413 LEVINE, supra note 89, at 24–25. 414 Id. at 28, 40. 415 Id. at 256–57.

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geosciences at the University of Massachusetts, Amherst, organized a public singing of a song against intelligent design at a Geological Society of America (GSA) meeting. The song, mocking what he believes is a religious belief that life was designed, was sung to the tune of traditional protestant hymn, Battle Hymn of the Republic: My bones proclaim a story of incompetent design. / My back still hurts, my sinus clogs, my teeth just won’t align. / If I had drawn the blueprint, I would cer-tain-ly resign. / Incompetent Design! / Evo-Evo-Evolution! Design is but a mere illusion. / Darwin sparked our revolution. / Science SHALL prevail!416 Contending that intelligent design is a religious belief, Wise boasts that he “had an audience of about 300 singing that lustily at the end of the GSA meeting. . . . Oh, it was gloriously terrible.”417 Such dysteleological arguments against the existence of a good, powerful God common to theistic religions are made not only by scientists in their scientific meetings, but also on the pages of the most prestigious journals. Writing in the journal Gene, Stanford biologist Emile Zuckerkandl, a founder of the field of molecular evolution, makes similar arguments that God would not produce the biological structures which have evolved: The observations in question definitely do not suggest that living systems have been built up thanks to the insights and decisions of a master engineer. Rather, the observations testify to a vast amount of continuous tinkering by trial and error with macromolecular interactions. The results of this tinkering are often retained when they can be integrated into the organism’s functional whole. But why would God tinker? Doesn’t He know in advance the biological pathways

416

Maggie Wittlin, The Other I.D.: An Interview with Don Wise, Creator of “Incompetent Design”, SEED MAG. (Nov. 15, 2005), http://www.seedmagazine.com/ news/2005/11/the_other_Id.php; A video of some GSA participants singing the song (a separate rendition from the incident where song was sung by over 300 participants in the GSA meeting) may be viewed at http://seedmagazine.com/media/video/IDsong.wmv. 417 Id.

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that work? Isn’t a tinkering God one who loudly says “I am not”? And why would He say so if He existed?418 Zuckerlandl’s article eventually becomes an all-out attack upon “[t]heists” and belief in a “higher intelligence,” which he says is “being peddled to the public,” although evolution has showed us how “the intelligence, notably, of humans and other mammals, can be produced in the absence of intelligence.”419 Many theists would perceive that these dysteleological arguments, which commonly accompany advocacy for evolution, oppose the common religious belief that a good God is responsible for nature. G. Evolutionary Accounts of the Origin of Human Morality and Religion Another evolutionary argument deserving special consideration involves attempts to explain the origin of human behaviors like morality and religion in strictly evolutionary terms. These arguments have grown in prominence in recent decades, and are commonly perceived to directly conflict with many religious accounts of human morality and religion. As behavioral ecologist John Alcock argues in The Triumph of Sociobiology, “an evolutionary approach to human behavior really does threaten a great many religious, political, and academic positions.”420 For example, E.O. Wilson argues that “much if not all religious behavior could have arisen from evolution by natural selection.”421 According to Wilson, such views are widely shared, since that “[m]ost [biologists] agree that ethical codes have arisen by evolution through the interplay of biology and culture.”422 Indeed, Wilson and Michael Ruse write that evolutionary accounts of the origin of morality first arose in order to oppose Christianity: “Attempts to link evolution and ethics first sprang up in the middle of the last century, as people turned to alternative foundations

418

Emile Zuckerkandl, Intelligent Design and Biological Complexity, 385 GENE, 2, 10 (2006). 419 Id. at 7, 16. 420 JOHN ALCOCK, THE TRIUMPH OF SOCIOBIOLOGY 129 (2001). 421 EDWARD O. WILSON, CONSILIENCE: THE UNITY OF KNOWLEDGE 282 (1998). 422 Id. at 275.

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in response to what they perceived as the collapse of Christianity.”423 They make the conflict between evolutionary and religious accounts of the origin of religion explicit, asking, “If God does not stand behind the Sermon on the Mount, then what does?”424 They then ask, “Does the sociobiological scenario just sketched justify the same moral code that religious believe to be decreed by God?”425 The answer, they would tell us, is “no.” Ruse and Wilson argue that the “ultimate foundations” of morality are purely biological and human perceptions of an objective moral code are merely an “illusion”: As evolutionists, we see that no traditional justification of the kind is possible. Morality, or more strictly our belief in morality, is merely an adaptation put in place to further our reproductive ends. Hence the basis of ethics does not lie in God’s will—or in the metaphorical roots of evolution or any other part of the framework of the Universe. In an important sense, ethics as we understand it is an illusion fobbed off on us by our genes to get us to cooperate. It is without external grounding.426 They suggest that evolutionary accounts of morality directly conflict with religious accounts of morality, claiming to “[see] morality for what it is, a legacy of evolution rather than a reflection of eternal, divinely inspired verities,” since “[i]f this pereception of human evolution is correct” then there is a “new basis for moral reasoning,” and it is “not in divine guidance or pure moral imperatives.”427 Gregory Graffin summarizes the implications of this viewpoint: “from some of E. O. Wilson’s writing, it is clear that morality can be understood from a biological perspective and need not be as sacred as the theologians once believed.”428

423 MICHAEL RUSE & EDWARD O. WILSON, The Evolution of Ethics, 108 NEW SCIENTIST 50–52 (1985). 424 Id. 425 Id. 426 Id. 427 Id. 428 PRESTON JONES, IS BELIEF IN GOD GOOD, BAD, OR IRRELEVALENT?: A PROFESSOR AND A PUNK ROCKER DISCUSS SCIENCE, RELIGION, NATURALISM & CHRISTIANITY 67 (2006).

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Many religious persons would take these arguments that religion, morality, and belief in God stem ultimately from evolutionary processes and not from the divine as antithetical to the teachings of their religion. Indeed, an essay in the journal Nature recently found that the “cognitive evolutionary approach” to studying religion “challenge[s] two central tenets of most established religions”: First, the notion that their particular creed differs from all other (supposedly misguided) faiths; second, that it is only because of extraordinary events or the actual presence of supernatural agents that religious ideas have taken shape. On the contrary, we now know that all versions of religion are based on very similar tacit assumptions, and that all it takes to imagine supernatural agents are normal human minds processing information in the most natural way.429 As The Economist concluded when reporting on this issue, “Evolutionary biologists tend to be atheists, and most would be surprised if the scientific investigation of religion did not end up supporting their point of view.”430 Such evolutionary arguments for the origin of religion and morality would likely be perceived to conflict with the religious beliefs of many Americans. Part III: Working Towards a Solution A. Declaring Evolution Unconstitutional: A Failed, Unnecessary, and Undesirable Solution After such extensive (though necessarily incomplete) documentation, it seems difficult to seriously deny a close historical association between the advocacy of evolution and what many would perceive as anti-religious activism. As might be expected, this anti-religious advocacy has led many Americans to believe that teaching evolution establishes atheism or secular humanism. Multiple courts have held that, for constitutional purposes, atheistic or non-theistic viewpoints can be

429

Pascal Boyer, Religion: Bound to Believe?, 455 NATURE 1038, 1039 (2008). The Science of Religion: Where Angels No Longer Fear to Tread, THE ECONOMIST (Mar. 19, 2008), http://www.economist.com/science/displaystory.cfm?story_id= 10875666. 430

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considered religious,431 and various disgruntled theistic religious persons have filed lawsuits contending that teaching evolution unconstitutionally advances atheism. But courts have universally rebuffed these arguments, agreeing that government advocacy of evolution is legal. Indeed, one could hardly imagine a more forceful judicial statement supporting the teaching of evolution than a declaration from the Supreme Court that it is illegal to stop teaching evolution. Yet in the 1968 landmark case Epperson v. Arkansas, this is precisely what the U.S. Supreme Court ruled—that the failure to teach evolution is likely to be unconstitutional because courts will suspect that it stems from a religious motive to protect certain religious beliefs.432 Despite the U.S. Supreme Court’s clear stance on this issue, no fewer than five lawsuits in recent decades have argued that teaching evolution establishes atheism and must therefore either be prohibited or balanced with the teaching of creationism. In each case, the parties arguing that teaching the pro-evolution viewpoint was unconstitutional lost.433 431

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (“the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe’”); United States v. Seeger, 380 U.S. 163, 187 (1965) (non-theistic viewpoints can qualify as religious when they “occupy the same place in [a person’s] life as the belief in a traditional deity holds”); Welsh v. United States, 398 U.S. 333, 340 (1970) (non-theistic viewpoints (“occupy . . . ‘a place parallel to that filled by God’ in traditional religious persons”); McGowan v. Maryland, 366 U.S. 420, 461 (1961) (nontheistic viewpoints can comprise “an aspect of human thought and action which profoundly relates the life of man to the world in which he lives.”); Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961) (“Secular Humanism” is listed as religious viewpoint); McCreary County, KY. v. ACLU, 545 U.S. 844, 879 (2005) (“[t]he dissent says that the deity the Framers had in mind was the God of monotheism, with the consequence that government may espouse a tenet of traditional monotheism. This is truly a remarkable view”); Kaufman v. McCaughtry, 419 F.3d 678, 682 (7th Cir. 2005) (“The Supreme Court has recognized atheism as equivalent to a ‘religion’ for purposes of the First Amendment on numerous occasions”); Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003) (“If we think of religion as taking a position on divinity, then atheism is indeed a form of religion.”). 432 See Epperson v. Arkansas, 393 U.S. 97 (1968). 433 See Wright v. Houston Indep. Sch. Dist., 366 F. Supp. 1208 (S.D. Tex 1972); Crowley v. Smithsonian Inst., 462 F. Supp. 725 (D.C. 1978); Segraves v. State of California, Sacramento Superior Court #278978. This decision was unpublished, and thus the account here relies upon an opinion posted on the internet at https://web.archive.org/web/ 20010414135303/http://www.geocities.com/Athens/1618/Segraves_vs._California.html; Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 519 (9th Cir. 1994), cert. denied,

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However, to revisit Justice Black’s concurring opinion in Epperson, courts should not “write off as pure nonsense the views of those who consider evolution an anti-religious doctrine.” Until courts recognize the antireligious implications many draw from neo-Darwinian evolution, this issue presents, as Black put it, “problems under the Establishment Clause far more troublesome than are discussed in the Court’s opinion.434 How are courts to deal with these “troublesome” implications? Evolution should be taught as science without any religious or anti-religious agendas. But Justice Black is correct: even under the best circumstances, teaching evolution is probably not completely religiously neutral because it will conflict with the religious beliefs of some students. In Kitzmiller v. Dover, Judge Jones sought to resolve this controversy by simply declaring from the bench that it is “utterly false” to believe evolution conflicts with religion.435 But this approach both violates cardinal rules of constitutional law436 and exacerbates the feeling among the many Americans who do have

515 U.S. 1173 (1995); Moeller v. Schrenko, 251 Ga. App. 151 (Ga. Ct. App. 1st Div. 2001). 434 Epperson, 393 U.S. at 113. 435 Kitzmiller v. Dover, 400 F.Supp.2d 707, 765 (M.D.Pa. 2005) (“Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.”). 436 See, U.S. v. Ballard, 322 U.S. 78, 86–87 (1944) (“The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. . . . The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.”) (citations omitted); West Virginia State Bd of Educ. v. Barnette, 319 U.S. 624. 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe

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religious objections to evolution that the government divisively disrespects their religious views and treats them as political outsiders. There are also strong pedagogical reasons not to remove evolution from public schools. Neo-Darwinian evolution has been tremendously influential in modern biology, and students will lack a complete understanding of the biological sciences unless they learn about evolution. Moreover, Darwin’s ideas have had a significant impact upon politics and culture, and evolution remains a hotly debated topic today. Failing to inform students about Darwinian thinking denies them a complete understanding of both Western society and modern science. Removing evolution from public schools would therefore severely harm science education and prevent students from becoming well-informed, scientifically literate citizens. Evolution should still be taught, but its teaching must be justified under the appropriate legal doctrine which recognizes the anti-religious messages that some associate with the concept. As I will discuss in the next section, religious non-neutrality stemming from historical religious or antireligious associations should not necessarily disqualify evolution, or any genuinely scientific theory from being taught as science. B. The Antidote to Darwin’s Poisoned Tree: Jettison Historical Analysis and Employ the “Incidental Effect” Doctrine This article has demonstrated that there is much historical antireligious—particularly anti-theistic and anti-Christian—activism associated with advocacy for evolution. The public is aware of these historical associations. Under current legal tests, this poisons the tree from which Darwinian evolution grows, where informed, reasonable observers will perceive that pro-evolution advocacy is associated with anti-religious activism. When justifying the teaching of evolution, legal precedent mandates that courts may not ignore the history of anti-religious advocacy on the part of many of evolution’s leading proponents. A few courts have expressed sensitivity to the anti-religious implications of evolution, but none have squarely scrutinized its close historical relation to anti-religious activism. In Wright v. Houston, a federal what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”).

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trial court acknowledged that “[s]cience and religion necessarily deal with many of the same questions, and they may frequently provide conflicting answers,” but upheld the teaching of evolution since, “it is not the business of government to suppress real or imagined attacks upon a particular religious doctrine.”437 Likewise, in Crowley v. Smithsonian Institution, plaintiffs sued the Smithsonian Institution arguing that displays featuring evolution at the Smithsonian’s National Museum of Natural History established the religion of secular humanism and violated the constitutional mandate that the government remain neutral in matters of religion. The court found that the displays were not illegal and passed the Lemon test because the primary effect of the exhibit does not advance religion and any religious establishment is “at most incidental to the primary effect of presenting a body of scientific knowledge.” However, the court told the parties it was “sensitive to plaintiffs’ interpretation of the theory of evolution as religion and is aware that they do not stand alone.”438 Another example comes from Segraves v. State of California, where a parent of children in California public schools challenged the California State Board of Education’s Science Framework that mandated the teaching of evolution, alleging this prevented himself and his family from freely exercising their religion. Although the California Superior Court accepted that evolution was incompatible with the Segraves’ religious beliefs, the Court held that the California’s anti-dogmatism policy provided sufficient accommodation to their views.439 Various courts have also recognized that the community controversy caused by teaching evolution can justify special treatment of the subject. For example, in her dissent from a denial of rehearing of a case involving a textbook disclaimer in Freiler v. Tangipahoa Parish Board of Education, Fifth Circuit Judge Barksdale acknowledged:

437

Wright v. Houston Indep. Sch. Dist., 366 F. Supp. 1208, 1211 (S.D. Tex 1972) (holding that the remedy for these religious conflicts was neither to teach the biblical story of creation nor to avoid the subject of origins altogether, but given no scientific alternative to evolution, the court simply let the lone teaching of evolution stand). 438 Crowley v. Smithsonian Inst., 462 F. Supp. 725, 727 (D.C. 1978). 439 See Segraves v. California, No. 278978 (Sup. Ct. Sacramento Cnty.), https://web. archive.org/web/20010414135303/http://www.geocities.com/Athens/1618/Segraves_vs._ California.html (last visited Feb. 20, 2016).

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The theory of evolution may be viewed by some as antireligious. The disclaimer recognizes this historic tension between evolution (scientific concept) and other theories or concepts about the origin of life and matter, using the “Biblical version of Creation” as but an example of such other concepts.440 In that case, because “an estimated 95% of the parish students are adherents to the Biblical concept of creation,” it was not inappropriate for the parish “to give context to the message, but without promoting that concept or expressing intolerance for any other [viewpoint].”441 The Fifth Circuit’s panel ruling in Freiler similarly held that the sticker had a legitimate secular purpose “to disclaim any orthodoxy of belief that could be inferred from the exclusive placement of evolution in the curriculum, and . . . to reduce offense to the sensibilities and sensitivities of any student or parent caused by the teaching of evolution.”442 Finally, in Selman v. Cobb County, plaintiffs argued that the school district inappropriately singled out evolution, exposing a religious purpose. But the court rejected this argument because “evolution is the only theory of origin being taught in Cobb County classrooms” and “evolution was the only topic in the curriculum, scientific or otherwise, that was creating controversy at the time of the adoption of the textbooks and Sticker,” and thus “[t]he School Board’s singling out of evolution is understandable in this context.”443 The court then found two legitimate secular purposes for the sticker: “[f]ostering critical thinking is a clearly secular purpose … because [the disclaimer] tells students to approach the material on evolution with an open mind, to study it carefully, and to give it critical consideration,” and “presenting evolution in a manner that is not unnecessarily hostile” is legitimate for the secular purpose of “reduc[ing] offense to students and parents whose beliefs may conflict with the teaching of evolution.”444

440

Freiler v. Tangipahoa Parish Bd. of Educ., 201 F.3d 602, 606 (5th Cir. 2000), cert. denied, 530 U.S. 1251 (2000). 441 Id. at 607 (emphasis in original). 442 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 344 (5th Cir. 1999). 443 Selman v. Cobb County. Sch. Dist., 390 F. Supp. 2d 1286, 1302–0– (N.D. Ga. 2005) (vacated and remanded, Selman, 390 F.Supp.2d. 1286). 444 Id. at 1302, 1305.

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These courts recognize that teaching evolution can impinge upon religion and cause controversy, and in some cases, they explicitly acknowledge that many religious persons see evolution as threatening to their religious beliefs. But no court has directly addressed the historical association between evolution and anti-religious activism. Nonetheless, these courts hint that a solution to any advancement or inhibition of religion resulting from the teaching of evolution is to consider such effects to be non-fatal secondary effects. The Lemon test requires that the “primary effect” of a government policy neither “advance” nor “inhibit” religion.445 A long-standing constitutional doctrine holds that “secondary” or “incidental” effects of a policy can touch upon religion (whether to advance or inhibit it), as long as the primary effect is secular. Thus, only “primary” effects which advance (or inhibit) religion—not “secondary” or “incidental” effects—can make a law unconstitutional. In the case of biological origins, teaching about any bona fide scientific theory will have a primary effect that advances scientific knowledge. If the scientific theory touches upon some theological claims or issues, any effects upon religion will be secondary or incidental. As one author writes: [I]f a theory has scientific value and evidence to support it, its primary effect would be to advance knowledge of the natural world, not to advance religion. The ultimate goal of schools is to educate students. Where a theory has scientific value and supporting evidence, it provides a basis for knowledge. Whether it coincidentally advances religion should not matter.446 This methodology is employed when courts assess the constitutionality of teaching evolution. Courts typically focus on the scientific content of neo-Darwinism, ignoring the (a) religious or antireligious motives of evolution proponents; (b) religious or anti-religious views of evolution proponents; (c) evolution’s religious or anti-religious implications; or (d) historical connections between evolution advocacy and anti-religious advocacy. If courts heed the warning of Justice Black and 445

Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Theresa Wilson, Evolution, Creation, and Naturally Selecting Intelligent Design out of the Public Schools, 34 U. TOL. L. REV. 203, 232 (2003). 446

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acknowledge the existence of such “anti-religious” factors associated with evolution (such as the close association between anti-religious activism and the promotion of evolution), courts might simultaneously acknowledge the reality of factors (a)-(d), but consider them incidental effects of teaching the scientific concept of evolution, with the primary effect being the advancement of scientific knowledge. Unfortunately, courts often apply a double standard when assessing the constitutionality of teaching non-evolutionary viewpoints of biological origins by taking criteria considered only applicable to secondary effects and treating those criteria as if they indicate primary effects. In such cases, courts ignore the scientific content of the non-evolutionary viewpoint and convert the (a) religious motives of proponents; (b) religious views of proponents; (c) religious implications of the concept; or (d) other religious associations (whether via people or groups, like fundamentalist Christians) connected to advocacy of that viewpoint, into primary effects. Thus, when non-evolutionary viewpoints are found to have a close historical relationship to religious advocacy, courts claim that there is a primary effect that advances religion, and the teaching of the viewpoint is ruled unconstitutional. But given that evolution is commonly found in close association with anti-religious advocacy, courts that will apply the law fairly and eschew double standards have two choices: (1) Declare the teaching of evolution unconstitutional. (2) Recognize that (a)-(d) represent “secondary” or “incidental” effects and thus are irrelevant to determining if a concept is constitutional for teaching in science classrooms. This applies whether the concept is the scientific theory evolution, or some non-evolutionary scientific viewpoint. As discussed, courts must not strike down the teaching of evolution, and thus option (2) is the only viable solution for preserving the integrity of science education. Yet this option implies that courts can no longer objectively consider historical associations of non-evolutionary viewpoints with religious activism when assessing the constitutionality of teaching non-evolutionary scientific viewpoints. Indeed, such an approach would defeat common arguments against the constitutionality of teaching intelligent design in public schools. For this reason, many outcome-based jurists who oppose the teaching of ID will choose a third option: They will 229

continue to apply the double standard, employing fallacious criteria (a)–(d) to try to disbar ID from public school classrooms,, but will ignore (a)–(d) when evaluating the constitutionality of teaching evolution. The just solution is to develop a jurisprudence that recognizes that a scientific theory can be taught in public schools even if it touches upon religious beliefs or has a history of anti-religious (or pro-religious) advocacy.447 Such a model is implicit in other court decisions which recognize that the primary or direct effect of state action must be distinguished from incidental or secondary effects. As the Supreme Court has stated: The Court has made it abundantly clear, however, that “not every law that confers and ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Here, whatever benefit there is to one faith or religion or to all religions, is indirect, remote, and incidental.448 State action that results in an indirect or secondary benefit (or harm) to religion is thus not unconstitutional. In Agostini v. Felton,449 the Court added that it is not the magnitude of the benefit that matters; the question is whether the effects/benefits of a policy provided are direct or merely a consequence of implementing a religiously neutral or secular principle. If the latter, then the effect or benefit is merely incidental. Such reasoning has been used to uphold many programs which may have resulted in incidental benefits to religion but were implemented “generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited” under criteria that are “in no way skewed towards religion.”450 In Zobrest v. Catalina Foothills School District, the Court again upheld a program giving aid “neutrally to any child qualifying as ‘disabled’ under the [act], without regard to the ‘sectarian-nonsectarian, or public-nonpublic

447

See DAVID K. DEWOLF, JOHN G. WEST, & CASEY LUSKIN, Intelligent Design Will Survive Kitzmiller v. Dover, 68 MONT. L. REV. 7 (2007). 448 Lynch v. Donnelly, 465 U.S. 668, 683 (1984) (citations omitted). 449 Agostini v. Felton, 521 U.S. 203 (1997). 450 Witters v. Washington Dep’t of Servs. For the Blind, 474 U.S. 481, 488 (1986) (citing Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 782–83, n.38) (citations and quotations omitted).

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nature’ of the school the child attends.”451 This principle was strengthened in Mitchell v. Helms: We have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and a religious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government.452 As the Court held in Agostini, a benefit to religion is thus merely incidental if it “is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion.’”453 Precisely such logic has permitted the courts to acknowledge the anti-religious implications of teaching neo-Darwinism and at the same time to sanction its teaching in unambiguous terms. As Justice Black asked in Epperson v. Arkansas, “If the theory [of evolution] is considered antireligious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an ‘antireligious’ doctrine to schoolchildren?”454 The answer to Justice Black’s rhetorical question is clear: Courts must treat the larger religious implications of scientific theories such as neo-Darwinism as merely incidental to the primary effect of teaching students about a scientific theory. Some courts have justified the teaching of evolution using this precise reasoning. For example, in McLean, Judge Overton found that if creation science were a scientific theory, then it could have been taught because any touching upon religion would have been secondary: Secondary effects which advance religion are not constitutionally fatal. Since creation science is not science,

451

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993). Mitchell v. Helms, 530 U.S. 793, 809 (2000) (citations omitted). 453 Id. at 813. (Because services to students in a religious school resulted in a benefit that had been distributed on a neutral, secular basis, the program was constitutional). 454 Epperson v. Arkansas, 393 U.S. 97, 113 (Black, J., concurring). 452

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the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion.455 This approach was also followed in Crowley v. Smithsonian Institution, where a federal judge rejected arguments that Smithsonian exhibits on evolution established “secular humanism” because the “impact [on religion] is at most incidental to the primary effect of presenting a body of scientific knowledge.”456 Similarly, in Peloza v. Capistrano Valley School District, high school biology teacher John Peloza objected to teaching evolution on the grounds that it conflicted with his religious beliefs, but the Ninth Circuit rejected his complaint because “[e]volution is a scientific theory based on the gathering and studying of data, and modification of new data.”457 Because evolution is based upon science, any effects upon religion are not constitutionally fatal. The “incidental effect” approach has also been applied in cases dealing with public school curricula outside of the teaching of evolution. In Grove v. Mead School District, fundamentalist Christians complained that a classroom reader established secular humanism. The court rejected the plaintiffs’ contentions because the curricular materials had only an “indirect, remote, or incidental”458 effect upon religion due to the secular reasons for their inclusion in the curriculum and their lack of explicit endorsement of any religious viewpoint. In Malnak v. Yogi, Judge Adams’ concurrence called the Big Bang a teachable scientific “astronomical interpretation of the universe,” despite the fact that it deals with an “ultimate” answer.459 Thus when a curricular subject, such as evolution or the Big Bang, is properly recognized as a scientific theory, courts treat the advancement of any religious beliefs as merely secondary or incidental effects.

455

McLean v. Arkansas Board of Education, 529 F. Supp 1255, 1272 (C.D. Ark. 1982). Crowley v. Smithsonian Inst., 462 F. Supp. 725, 727 (D.C. 1978) (emphasis added). 457 Peloza v. Capistrano Valley Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994), cert. denied, 515 U.S. 1173 (1995). 458 Grove v. Mead Sch. Dist., 753 F.2d 1528, 1539 (9th Cir. 1985) (citations and quotations omitted) (aff’d in part, vacated in part, rev’d in part on other grounds by Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 911 F.2d 1331 (9th Cir. 1990), aff’d Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002). 459 Malnak v. Yogi, 592 F.2d 197, 209 (3d Cir. 1979) (Adams, J., concurring). 456

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The same should be done for evolution. Under the incidental effects doctrine, a bona fide scientific theory like evolution can still be taught in public schools despite the widely known public history of anti-religious activism associated with the advocacy of evolution. Such a jurisprudential model allows a court to justify the teaching of evolution taught despite the long history of anti-religious activism surrounding the theory. Courts must recognize that such cultural perceptions of the historical associations between a scientific theory of origins and religion (or non-religion) are secondary or incidental effects, and not constitutionally fatal to the teaching of a legitimate scientific viewpoint. This is the best way to preserve the constitutionality of teaching of evolution in public schools, and it is the antidote to Darwinâ&#x20AC;&#x2122;s poisoned tree. Yet in employing such legal reasoning, courts must be impartial and must also abandon legal tests that consider cultural perceptions of the historical associations of non-evolutionary viewpoints on biological origins with religious activism. To put it plainly, if courts wish to preserve the constitutionality of teaching evolution in light of its long historical association with antireligious advocacy, they must not disbar the teaching of intelligent design because of any alleged history of religious activism associated with the latter concept.

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