EthicsWalk addresses
spiritual care as an ethical enterprise.
It explores why relationships between
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Theology, Science, and The First Amendment
Intelligent Design, Darwin, And Religious Freedom
Part 1: Constitutional Issues
Spiritual care providers witness events both rationally inexplicable and awesomely concrete. This may equip them to mediate the confused furor over the December 20 decision in Kitzmiller v. Dover Area School District prohibiting teaching Intelligent Design (ID) in public school science classes.[1]
Kitzmiller does not question the existence of God or the theological validity of ID. Kitzmiller does not prohibit discussing God or ID in public schools, nor does it denigrate family values and the importance of passing onto children a family’s religious beliefs. Kitzmiller does not hold that Darwin’s theory of evolution is perfect nor does it “controvert that ID should continue to be studied, debated, and discussed.”[2]
Kitzmiller does hold, based on six weeks of testimony by scientists for both Plaintiffs and Defendants, that ID is not a science and “that ID cannot uncouple itself from its creationist, and thus religious, antecedents” and concludes “that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.”[3]
Understanding the constitutional underpinnings of Kitzmiller is requisite to discussing the heartfelt positions held by religious people on all sides of this controversy.
The First Amendment guarantees freedom of religious belief according to personal conscience without interference or influence by governmental entities.[4] Such entities cannot include or exclude anyone based on religious belief.[5] The nation’s founders, themselves people of faith, did not seek to remove God from public discourse but to “preclude government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.”[6]
The most challenging forum for balancing First Amendment establishment concerns and free exercise rights[7] is public schools. Students are captive audiences vulnerable to the authority of teachers’ words.
Two tests for constitutional permissibility are applied when a policy which could implicate religion is proposed for a governmental entity. In the “endorsement” test, a hypothetical reasonable observer[8] looks at the evidence “to ascertain whether the policy ‘in fact conveys a message of endorsement or disapproval’ of religion, irrespective of what the government might have intended by it.”[9]
The Lemon test asks of such policy: (1) does it reflect a clearly secular legislative purpose; (2) have a primary effect that neither advances nor inhibits religion; (3) avoid excessive entanglements with religion.[10]
Establishment and endorsement tests promote justice and hospitality – virtues in the three Biblical religions. As the Supreme Court observed:
School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are 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.[11]
Families and faith communities have the absolute right to include or exclude anyone from their gatherings for any reason. Individuals and faith communities have the absolute right themselves to be included, and feel included in any government entity without prejudice because of religious belief (or disbelief).[12] This does not permit, however, the governmental entity to provide a forum for expression of particular religious convictions.
Next month’s column enumerates findings specific to Kitzmiller. The following month suggests discussion points by analogy with other religious doctrines which defy but coexist with secular and scientific theories.
I welcome any comments you might want to submit in response to these articles.
[1] Tammy Kitzmiller, et al. v. Dover Area School District, et al., U.S. District Court for the Middle District of Pennsylvania, Case No. 04cv2688, Judge John E. Jones III, December 20, 2005.
[2] Id. 137
[3] Id.
[4] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; Amendment I, U.S. Constitution (1791). The Fourteenth Amendment applies the Constitution to the States and hence to public schools which are arms of state government.
[5] Belief is absolutely protected; practice is not in all circumstances.
[6] County of Allegheny v. ACLU, 492 U.S. 573 (1989)
[7] One of the first such cases anticipates Kitzmiller: the 1925 challenge to teaching evolution in public schools, the so called Scopes “monkey trail.”
[8] Someone who knows the history of the disputed policy/action, the history of the community and the broader social and historical context in which the policy/action arose.
[9] Lynch v. Donnelly, 465 U.S. 668, 690 (1984) quoted in Kitzmiller at 17. The endorsement test has been applied in cases addressing school prayer, vouchers, religious student clubs meeting on school property, government aid to parochial schools, university funding of religious newspapers, etc.
[10] Lemon v. Kurtzman, 403 U.S. 602 (1971), court struck down R.I. plan to use state funds to pay parochial-school teachers only teaching secular subjects and meeting state license requirements.
[11] Id., 688 quoted in Kitzmiller at 11.
[12] For example, unlike compulsory secularization of public schools in France, the U.S. Court has upheld the rights of Muslim women to cover their heads and Jewish men to wear the yarmulke in government work and education forums.
Anne Underwood has an undergraduate
degree in religious studies, a
master’s degree in rural sociology
and a mid-life law degree obtained
after working over a decade as
a college administrator. She has
mediated for the Maine family courts
since 1983. Currently she serves
as an advisor to the ethics commissions
of ACPE, APC, the CCAR (Central
Conference of American Rabbis),
and NAJC, and consults with a variety
of Protestant faith communities
on issues of power, fair process,
and congregational conflict management.
Her articles on mediation and restorative
justice have appeared in the ACPE
News, The APC News and on the ACPE
web site. Articles on clergy accountability
and judicatory processes are published
by the Alban Institute and The
Journal on Religion and Abuse.
A
chapter, “Clergy Sexual Misconduct:
A Justice Issue,” appears in Body
and Soul: Rethinking Sexuality
as Justice-Love
, Marvin Ellison
and Sylvia Thorson-Smith, editors,
The Pilgrim Press, 2003.
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