Professor Jana McCreary Falls into Her Own Trap

The latest issue of the Southwestern University Law Review contains an article by Professor Jana McCreary called This Is the Trap the Court Built: Dealing with the Entanglement of Religion and the Origin of Life in American Public Schools, 37 SWULR 1. In the same issue, Peter Irons responds to Professor McCreary in an article called Darwin, Dogma, and Definitions: A Reply to Professor McCreary, 37 SWULR 69, and then she gets the last word in an article called Focusing Too Much on the Forest Might Hide the Evolving Trees: A Response to Professor Irons, 37 SWULR 83.

I must admit that I was a little disappointed with the normally reliable Peter Irons. He spends the majority of his response haranguing Professor McCreary for calling atheism a theistic belief. I think this semantic point was not that important. Of course atheism is a theistic belief in the sense that the government can't endorse it.

So, if he isn't going to take on her main point, I will. I'll be happy to post any response from Professors McCreary or Irons as well.

I have serious problems with Professor McCreary's definition of science (she uses Phillip Johnson's definition, so you can immediately know that it brings in all sorts of things that have nothing to do with science), but since that is not her main argument I will leave it alone for now. The main problem is that Professor McCreary has conflated secular ideas that contain religious implications with religious ideas.

Her Argument

I think there's no denying that evolution could be seen as the "creation story" of atheism; secular humanists are pretty explicit about it. Professor McCreary's argument is built on the premise that this makes evolution religious, and therefore schools can not teach it unless they are willing to teach other religious ideas alongside it. (She mentions creation and Intelligent Design; her position on spaghetti monsterism is unclear.)

Professor McCreary's argument is not new, it has undergirded most every "balancing" argument for half a century. There are two standard creationist arguments (1) "My stuff is science too!", and (2) "Evolution = atheism, so you have to teach my religious stuff to make up for it." This is #2. (I'm not calling the Professor a creationist, I'm saying her argument is often used by creationists.)

Here is the same basic argument in a 1979 Harvard Journal of Law and Public Policy article.

"[P]resentation of the scientific evidence for creation along with the general theory of evolution conforms to the requirements of substantial neutrality. [I]t is a restoration of government neutrality [since evolution promotes atheism.]"
~ Wendell R. Bird, Freedom from Establishment and Unneutrality in Public School Instruction and Religious School Regulation, 2 Harv. J. L. Pub. Pol'y 125, 171 (1979).

Now, there's nothing wrong with an old idea. The problem, as I explain below, is that idea is no good.

Let's look at some quotes from Professor McCreary and see how she makes the same "evolution is practically atheism" argument:

"We do not know, with absolute certainty, how life first began. People have different beliefs, and the final answer is a matter of taking what evidence exists, considering one's personal faith and belief system, and coming to a conclusion. Some reach the conclusion that nothing guided the development of life. Others believe that one deity created life. Still others believe that many gods played a role. The bottom line, though, is that each of these beliefs, no matter the basis, supports a religious ideology - a theistic view.

Because each belief supports an ideology, when a school system or state chooses to adopt a textbook that offers only one theory as the answer for how life began, the state is, in essence, choosing an ideology to offer its students. And when the government shows preference for one of those ideologies, it is violating the Establishment Clause."

"Evolution, as a concept used to teach the origin of life, represents religious dogma - an authoritative truth involving a theistic view. To believe that life has a specific goal-oriented purpose is to believe design of life exists. And for design to exist, some power, being, deity, or force above nature must exist. But if life is a result of nothing more than random events and occurrences, then no purpose could exist. If no purpose to life exists, then no supernatural being could exist. Therefore, from this syllogism, we can further tie a specific religious dogma to the concept because to believe that no supernatural being exists is to support the basic tenets and dogma of atheism."

"[E]volution is tied to a comment on religion and thus implicates the Establishment Clause" (from her reply)

"[T]he origin of life, as an educational concept, is different from any other concept in science. The origin of life has been explained only by involvement by a god or gods or as some random occurrence. And if life originated in a random manner, then no god must exist." (from her reply)

This next one is nice and succinct:

"In the article, I explain how evolution, as the explanation of the origin of life, is not religiously neutral; it promotes the concept of the nonexistence of a higher power. Accordingly, we can either say nothing about it in a public school system as an explanation of the origin of life, or we can share all theories equally." (from her reply)

"The last thing I want is to return to a time when public schools pushed any particular religious theory on students - such as urging them to believe in the creation stories. But this also means that, when understanding evolution as the theory that promotes no existence of a higher power, and when understanding the origin of life as a concept that inherently invokes religious theories, we likewise cannot present only evolution without pushing a particular religious theory. By selecting only one theory, we promote one over the others, and that is a violation of the Establishment Clause.

Not only would presenting all theories provide neutrality. [sic] Doing so would help educate students to the fact that alternative theories exist and not every person they will ever meet will share their views." (from her reply)

The Reason This is Wrong

Perhaps Professor McCreary can be excused; her main mistake was taking the Supreme Court too seriously.

The Court's Lemon test prohibits state actions that have the primary effect of advancing or inhibiting religion. I think it's plausible to argue that "since evolution is important to atheism, teaching evolution gives some support to atheism." The Professor clearly thinks that to be the case. By taking this conclusion and stretching the Lemon language to its limits, Professor McCreary and a number of previous creationists conclude that the primary effect of teaching evolution is to support atheism. This violates the First Amendment. Therefore, the "atheistic" effect of evolution must be reduced by doing some pro-religion stuff to compensate.

Problem #1 - The First Amendment Doesn't Work like That (minor quibble)

If teaching evolution really violates the First Amendment, then we should stop teaching it. The Court has never accepted the idea that anti-religious government activity can be balanced by pro-religious government activity. The government doesn't have the right, the jurisdiction, to do either one. The "remedy" of teaching pro-religious material to counter anti-religious government activity tears gaping holes in the wall between church and state.

All creationists suggest this unusual remedy because they know the real answer (stop teaching evolution) is untenable. If the First Amendment means that mainstream science can not be taught in science class, then we've got bigger problems.

Problem #2 - There Is No First Amendment Violation (major quibble)

The way out of this paradox is to recognize that teaching evolution doesn't violate the First Amendment. Evolution's "shared" status as a major scientific idea and "the atheist creation story" might give evolution a slight anti-religious effect, but that is not enough to condemn it under the First Amendment. Never has been, never will be.

First, can we really say that the "primary" effect of teaching evolution is to advance atheism? It seems ridiculous to even say it. The "primary" effect of teaching evolution is to let students know about a major scientific theory that affects a large number of scientific fields. We teach evolution so that students can get jobs as genetic researchers. We teach evolution because we want students to understand why they must take all of their antibiotics. There is no group of atheists scheming about ways to (un)indoctrinate students.

Even more generally and importantly, there are an infinite number of secular ideas that have religious implications. If we took Professor McCreary too seriously, all of those would be in jeopardy as well. Remember when the Big Bang was proposed as a scientific theory? Religious scholars lept on it. After all, if there was creation then there must have been a moment of creation. (Notice the parallel to Professor McCreary's "syllogism" above.) I say teaching about the Big Bang in science class is unconstitutional because it supports religion.

I once listened to Ronald Dworkin explain how important the Equal Protection Clause is, and how we have to communicate the idea to the "other side" of the culture war. He suggested translating it:

"[No] state [may] deny to any person within its jurisdiction the equal protection of the laws."
"God created man in his own image"

At the end of the day, many many ideas have religious implications. Loose Supreme Court language aside, the courts have been strict on challenges to government endorsement of those ideas. If the idea is not explicitly religious, and if there is no evidence that the ideas was adopted primarily for religious purposes, then the Court will not interfere.

I've made my argument a matter of logic, but check out Crowley v. Smithsonian Exhibit, 636 F.2d 738 (D.C. Cir. 1980) where a religious family challenged an evolution exhibit at the Smithsonian as an endorsement of secular humanism. In this case, which was not cited by Professor McCreary, the Court said:

"[It does not] follow that government involvement in a subject which is also important to practitioners of a religion becomes, therefore, activity in support of religion. For example, birth control and abortion are topics that involve both religious beliefs and general health and welfare concerns. Many religious leaders have vigorously opposed government support of the teaching and practice of birth control and government support, or even toleration, of abortion. Controversy, including litigation, about these subjects has been prolific and spirited. No court, however, has finally held that government advocacy of or opposition to either birth control or abortion violates the establishment clause of the first amendment. Indeed, the Supreme Court recently and summarily rejected an argument that the limiting of medicaid funds for abortions violated the establishment clause “because it incorporates into law the doctrines of the Roman Catholic Church . . . .” Harris v. McRae, 100 S.Ct. 2671, 2689 (1980). The Court reasoned that:

Although neither a State nor the Federal Government can constitutionally “pass laws which aid one religion, aid all religions, or prefer one religion over another,” Everson v. Board of Education, 330 U.S. 1, 15, it does not follow that a statute violates the Establishment Clause because it “happens to coincide or harmonize with the tenets of some or all religions.” McGowan v. Maryland, 366 U.S. 420, 442.

So here, we cannot conclude that the exhibits in question are impermissible because their message may coincide or harmonize with a tenet of Secular Humanism or may be repugnant to creationism." (some citations omitted)

The lower court was more explicit in saying that the primary purpose of the exhibit was not to establish atheism, but to fulfill the Smithsonian's statutory mission, "The diffusion of knowledge among men."

Amen.