Seeing government purpose through the objective observer's eyes: the evolution-intelligent design debates.

AuthorBowman, Kristi L.

CONTENTS I. INTRODUCTION II. AN EVOLUTION-INTELLIGENT DESIGN PRIMER A. Revisiting the Ideas at Issue 1. Evolution 2. Creationism 3. Intelligent Design B. The Cultural Context, at Home and Abroad III. THE ESTABLISHMENT QUAGMIRE A. The Life of Lemon B. The Objective, Reasonable Observer: At First an Evaluator of Effect and Endorsement 1. Emerging in Justice O'Connor's Concurrences 2. The Early Stages of Adoption 3. The Objective, Reasonable Observer Accepted 4. Applying the "Standard" C. McCreary County v. ACLU: An Objective, Reasonable Observer's Perspective on Governmental Purpose D. Establishment Clause Considerations in Public School Curricular Debates IV. DON'T THROW THE BABY OUT WITH THE MCCREARY COUNTY BATHWATER A. Changing the Constitutional Harm 1. What Apparent Intent Misses: Hidden Motives 2. Increasing Problems with "Neutrality" 3. Apparent Intent's Potential for Overreaching B. What Did the Reasonable Observer Know, and When Did the Reasonable Observer Know It? 1. NCLB's Requirements, or Lack Thereof 2. The Santorum Amendment 3. Conference Committee Report Language 4. The "Secular, Neutral, and Nonideological" Directives 5. What Is a Reasonable Observer to Do? C. The Ever-Important Standard of Review V. CONCLUSION Debates about teaching intelligent design in public school science classes are inflaming communities across the nation. These controversies present thorny Establishment Clause questions at a time when that doctrine is less clear than ever. The ambiguity is not due to a lack of case law: Just last year, the Supreme Court issued two seemingly contradictory Establishment Clause decisions, driven by what then-Chief Justice Rehnquist characterized as "Januslike" interests. McCreary County v. ACLU, with its focus on government purpose, is more applicable to curricular disputes such as intelligent design than Van Orden v. Perry, with its examination of passive, apparently uncontroversial expression. This Article thus examines McCreary County within the intelligent design context, focusing on McCreary County's decision to import the "objective observer" from the effects-endorsement analysis into the government purpose inquiry. Such analysis makes clear the ways in which a strict reading of McCreary County leads to undesirable results, and the reasons why the Court should retain McCreary County's focus on government purpose, but reject the expanded role of the objective observer.


    On October 18, 2004, the 3,700-student school district in Dover, Pennsylvania became the first in the nation to require that its students be taught about the concept of intelligent design when learning the theory of evolution. (1) The Dover school district thus presented in public school science classrooms the idea that an intelligent agent must be responsible for the origin and variety of the species because evolution alone could not have produced such complexity. The Dover school district's instruction in intelligent design was cursory, requiring only that the following statement (modified slightly in June 2005) be read to biology students studying evolution: (2)

     The Pennsylvania Academic Standards require students to learn about Darwin's Theory of Evolution and eventually to take a standardized test of which evolution is a part. Because Darwin's Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the

    Theory exist for which there is no evidence. A theory is defined

    as a well-tested explanation that unifies a broad range of observations. Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual

    students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments. (3)

    In January 2005, when Dover science teachers refused to read the statement, the school district's assistant superintendent did so instead. (4) Even before the statement was read in Dover classrooms, however, parents already had challenged its constitutionality in federal court. (5) The trial in this case was the first in the nation to address the evolution-intelligent design dispute directly. (6) Just six weeks after the twenty-one-day trial concluded, the district court ruled soundly for the plaintiffs. (7) While the trial was in full swing, the ideological battle also played out in the Dover school board election, in which the eight incumbents standing for reelection (all supporters of the intelligent design policy) were voted out of office on November 8, 2005. (8)

    The district court's strong decision in the Dover case may dampen the enthusiasm of some intelligent design proponents, but it certainly will not halt the movement. (9) The controversy in Dover is representative of a rapidly growing number of proposals surfacing across the country requiring that students in public schools study the concept of intelligent design in science class, or at least that teachers present a critical view of evolution (the first premise of intelligent design). In 2005 alone, forty-seven local school boards and fourteen state legislatures considered such proposals; between 2000 and 2005, sixteen state boards of education did so also. (10) Last November, the Kansas Board of Education modified its state science standards, requiring schools to teach the "flaws" of the theory of evolution and effectively inviting schools to teach the concept of intelligent design. (11) Legislatures in Kansas, Minnesota, New Mexico, and Ohio already have passed state statutes permitting, but not requiring, science instruction about intelligent design. (12) Similar legislation is pending in Georgia, Michigan, Oklahoma, Pennsylvania, South Carolina, and Texas, and also may be introduced in Utah and Indiana. (13) These existing and proposed policies and statutes follow on the heels of federal-level support for teaching the concept of intelligent design. Conference committee language accompanying the federal No Child Left Behind Act of 2001 (NCLB) encouraged a critical teaching of evolution, and even President George W. Bush weighed in on this issue in August 2005, expressing support for teaching intelligent design alongside the theory of evolution. (14)

    Whether presented in court or merely as legal advice to a state or local school board, legal arguments supporting intelligent design already have assumed a common form: (1) The concept of intelligent design is science and should be taught in the spirit of teaching both sides of a controversy; (2) the theory of evolution is hostile to religion, thus intelligent design should be taught to preserve government neutrality towards religion; (3) a teacher's ability to teach the concept of intelligent design is a matter of academic freedom. (15) Because the intelligent agent or agents to whom all credit is given remain unidentified, intelligent design proponents reject the suggestion that the concept is merely the newest iteration of biblically based creationism. (16) On the other side, opponents of intelligent design argue that because the concept of intelligent design is religious and not scientific, and because the theory of evolution is scientific and not religious, teaching intelligent design is motivated by an impermissible purpose to advance religion in public schools and generates an effect of advancing religion; such motive and result both violate the Establishment Clause. (17) Accordingly, because intelligent design advocates' purpose is nearly always less overtly religious than that of traditional creationists, discerning the government purpose that motivates an intelligent design policy is a crucial yet challenging aspect of intelligent design litigation. In fact, this analysis will be even more difficult after the Supreme Court's recent decision in McCreary County v. ACLU. (18)

    In June 2005, the Court issued decisions in two cases involving the public posting of the Ten Commandments on government property. In Van Orden v. Perry, the Court upheld as constitutional a six-foot-tall granite monument of the Ten Commandments erected on the Texas state capitol grounds nearly forty years ago, focusing on the passivity of the monument's message, the historical, secular meaning of the Ten Commandments, and the longstanding, uncontroversial nature of the display at issue. (19) In McCreary County v. ACLU, the Court rejected two Kentucky counties' recent, repeated attempts to post the Ten Commandments inside their respective county courthouses, initially by posting the document alone and then as part of larger displays. (20) McCreary County utilized the initial, and rarely determinative, aspect of the three-prong Establishment Clause test the Court set forth in 1971 in Lemon v. Kurtzman: "First, the [government action] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ... [third, it] must not foster 'an excessive government entanglement with religion.'" (21)

    While McCreary County thus reconfirmed the primacy of the Lemon test's government purpose analysis, Van Orden entirely disregarded the Lemon test. Whether read individually or taken together, these two cases amplify the confusion that attends Establishment Clause doctrine, an area of law prominent scholars have described as chaotic and largely incoherent, and that a district court characterized, in the wake of McCreary County and Van Orden, as beset by "utterly standardless" distinctions. (22)

    This chaos is due in part to the "objective observer" or "reasonable observer" test, a legal fiction...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT