Much ado about the Sticker

U.S. District Judge Clarence Cooper ruled today that the Cobb County School Board's decision to place the evolution-is-a-theory-not-a-fact Sticker on high school biology texts violates the Establishment Clause of the First Amendment. Why does the Sticker violate the Establishment Clause? It's not because the Sticker explicitly invoked religious belief. (The Sticker stated the following: "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.") It's because it implicitly advances a religious belief.

Here's the test Cooper used to reach his decision (quotations from his decision are in blue; I've deleted references within Cooper's decision to other cases):

To determine whether the Sticker at issue violates the Establishment Clause, Supreme Court and Eleventh Circuit precedent direct the Court to apply the three-prong test articulated in Lemon v Kurtzman. Under the Lemon test, a government-sponsored message violates the Establishment Clause of the First Amendment if (1) it does not have a secular purpose, (2) its principal or primary effect advances or inhibits religion, or (3) it creates an excessive entanglement of the government with religion. If the government-sponsored action or message fails to meet either of these three prongs, then the challenge under the Establishment Clause succeeds.

In other words, if the judge reasons that the "government-sponsored message" fails to have a secular purpose, it's out. If its principal effect advances or inhibits religion, it's out. If it excessively entangles the government with religion, it's out. What did Cooper find? According to him, the Sticker (as it's referred to in his decision; the capitalization makes it look like a Platonic entity: the Form of Sticker) passes the first test. It has a reasonable, secular purpose. He states:

after considering the additional arguments and evidence presented by the parties and evaluating the evidence in light of the applicable law, the Court remains convinced that the Sticker at issue serves at last two secular purposes. First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the Sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution. For the foregoing reasons, the Court concludes that the Sticker satisfies the first prong of the Lemon analysis.

The problem is with the second part. Cooper reasoned that the Sticker's "principal or primary effect advances or inhibits religion." In this case, he found that it advances religion. Here's why.

There is no evidence in this case that the School Board included the statement in the Sticker that "evolution is a theory, not a fact" to promote or advance religion. Indeed, the testimony of the School Board members and the documents in the record all indicate that the School Board relied on counsel to draft language for the sticker that would pass constitutional muster. Thus, the presence of this language does not change the Court's opinion that the Sticker survives the purpose prong of the Lemon analysis.

Still, the informed, reasonable [person (?)] would perceive the School Board to be aligning itself with proponents of religious theories of origin. The case law is clear that a governmental action or message that coincides with the beliefs of certain religions does not, without more, invalidate the action or message. However, in light of the sequence of events that led to the Sticker's adoption, the Sticker communicates to those who endorse evolution that they are political outsiders, while the Sticker communicates to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders.

So, even though the school board had a secular purpose, the Sticker is unconstitutional because it endorses a religious viewpoint, that is, it is the result of a process in which a number of citizens, who are religious, convinced the school board that it was in the best interests of the citizens of Cobb County to put the Sticker on the textbooks.

But it isn't as if Cooper ruled that any government-sponsored message that is introduced by a large, vocal group of religious people is automatically unconstitutional. Another part of his reasoning was that it is well-known in the U.S. that the teaching of evolution has historically been opposed by "Christian fundamentalists and creationists" (his terms). Given this historical context, the reasonable person will see that the Sticker, since it draws attention to the disputed nature of the theory of evolution, sides with the "Christian fundamentalists and creationists." In Cooper's words:

the Sticker here disavows the endorsement of evolution, a scientific theory, and contains an implicit religious message advanced by Christian fundamentalists and creationists, which is discernible after one considers the historical context of the statement that evolution is a theory and not a fact The informed, reasonable observer is deemed aware of this historical context

I think this is bad for two reasons.

The first is that it seems that religious groups should be concerned that any similar longstanding issue involving them will be decided against them a priori. In other words, if you're a member of a religious group, and you want the courts to decide in your favor on a decision involving a history of religious vs. nonreligious opposition, you're screwed. Why? Because, according to Cooper, if the courts were to side with you, they would endorse your religious beliefs. This, I think, is a grave outcome.

The second problem I see is that Cooper, and the plaintiffs, fail to distinguish between religious motivation and religious people. The assumption seems to be that if one is religious, and if one is opposed to evolution, then one is opposed to it on religious grounds. That is, one's motivation for opposing evolution must be religious. Cooper seems to be taking his cue from one of the plaintiffs in the case.

Plaintiff Kathy Chapman's "alarm bells went off" when she saw the Sticker in her child's textbook, and she immediately felt that the Sticker "came from a religious source" because, in her opinion, religious people are the only people who ever challenge evolution.

Cooper's inference is that since only religious people object to evolution, it must be that they reject it on religious grounds. Well, the first part of that claim might be false (I'm sure there is at least one nonreligious person who is critical of the theory of evolution), but let's focus on the inference from the first to the second part. Is it true that a religious person must object to evolution on religious grounds? No. One could be religious and object to the theory of evolution on nonreligious grounds. Cooper seems to recognize this, but he doesn't give it much weight. He states:

While the School Board may have considered the request of its constituents and adopted the Sticker for sincere, secular purposes, an informed, reasonable observer would understand the School Board to be endorsing the viewpoint of Christian fundamentalists and creationists that evolution is a problematic theory lacking an adequate foundation. Of course, the amicus brief filed by certain biologists and Georgia scientists indicates that there are some scientists who have questions regarding certain aspects of evolutionary theory, and the informed, reasonable observer would be aware of this also. On the whole, however, the Sticker would appear to advance the religious viewpoint of the Christian fundamentalists and creationists who were vocal during the textbook adoption process regarding their belief that evolution is a theory, not a fact, which students should critically consider.

Despite the amicus brief of "some scientists" who question "certain aspects" of evolutionary theory, Cooper thinks that "on the whole," the Sticker advances a religious viewpoint. Now "certain aspects" is vague, but shouldn't Cooper have paid more attention to it? If it's true that there are possible nonreligious motivations for criticizing evolutionary theory, it seems also possible that the Sticker does not necessarily advance a religious view. But then the only reason Cooper "knows" that the Sticker is religiously motivated is because of the outspokenness of its proponents.

This seems to lead to an odd result in a democracy: if the "Christian fundamentalists and creationists" hadn't been so vocal during the textbook adoption process, the Sticker might have had a better chance of passing the Lemon test. Next time, fundamentalists, don't be so vocal about your opinions. You might have a better chance. But even if there is a next time, it isn't clear that being less vocal about their opinions will help the fundamentalists. Cooper's rule seems to be based on the fact that the people pushing for the government-sponsored message are themselves fundamentalists, and that seems to be enough for him, given the historical context of the debate. Cooper concludes:

However, considering all facts and circumstances related to the Sticker and its adoption, the Court is convinced that the Sticker's primary effect surpasses accommodation and endorses religion. Thus, even though the Sticker may not explicitly advance a particular religious viewpoint and explicitly encourage maintenance of that viewpoint as did the disclaimer in Freiler, the Constitution requires that the government "pursue a course of complete neutrality toward religion." The Sticker in this case, considered in context, communicates to the reasonable observer that the School Board has violated this mandate.

It seems impossible for the government to "pursue a course of complete neutrality toward religion," and the Sticker seems to be a case of that impossibility. The court's "neutrality" functions in this case as a guise for inhibiting the religious viewpoint.

UPDATE: The Scrivner's Error has more on the legal aspects of the case; he also disagrees with me about whether the outcome is good or bad.