Freedom Of (And From) Religion

Shouldn’t the question of whether the teaching of Intelligent Design as one of a number of hypotheses (e.g.. Matrix, parallel universes, universal proto-consciousness, etc) which might explain what caused or preceded the Big Bang violates the Establishment Clause be tested by reference to the hypothetical nature of the explanation (as one of several, all of which are by nature hypothetical) rather than by the beliefs of those backing the teaching of that hypotheses? Nobel Lauriet Sir Roger Penrose, for example, hypothesizes that the Big Bang or other originating cause was a form of universal proto-consciousness, and although he acknowledges that as a materialist he is bound to attribute that proto-consciousness to some material factor of which he cannot be certain, he also acknowledges that that factor is a matter of pure speculation. Quantum theory likewise now generally accepts that time may be an emergent rather than a fundamental part of reality. Would the fact that Christian fathers such as St, Augustine taught that God’s pre creation reality was and is fundamentally atemporal and that time was in fact a facet of creation.— i.e., was in fact emergent rather than fundamental — and that school administrators pushing for the teaching of the proposition that fundamental reality is atemporal, just as St. Augustine taught, happen to be Christian — be a legitimate basis for banning teaching, as an accepted hypotheses, that fundamental reality is atemporal? It seems to me that banning the teaching of hypotheses which happen to coincide with the religious beliefs of those pushing for such teachings is a poor approach to determining whether the teachings themselves, in their own right, violate the Establishment Clause.

There really is no answer, but as a lawyer the following is what I believe the workable framework is in a Kitzmiller type dispute: 1. The law and courts applying the law must wrestle with what exact issues the law and the court can decide. 2. This is a very limited set compared to all the issues we can imagine. 3. With respect to the Establishment Clause, the two practical issues wrestled with are: (i) whether the government can or should advantage/disadvantage religious belief over non-belief; and (ii) whether the government can and should advantage/disadvantage one religion (or religious belief) over another. 4. For example, there is no doubt a sect of Christian believers who would say, yes, the government should advantage religious belief over non-belief and, yes, the government should advantage a particular version of Christianity over other religions. Historically, American courts have rejected this over and over again. 5. However, it appears that this view has taken hold of some jurists and courts. The U.S. Supreme Court seems poised to abandon the Lemon test entirely for an amorphous test of determining Establishment Clause cases in conformity with how they believe the Founding Fathers would have viewed the issues. 6. But such a test is pure speculation unless you strictly apply the Jeffersonian “wall of separation between Church and State” and use Article VI, Clause 3 of the Constitution—“but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” These together would seem to say that the Founding Fathers believed that to the extent possible religion and religious belief should be removed from the political question of governance. Since no system is perfect, it may not be entirely removed, but it should not be deliberately injected. 7. Related to the foregoing, as Frank Herbert wrote in one of the Dune novels, “When religion and politics travel in the same cart, the riders believe nothing can stand in their way. Their movements become headlong — faster and faster and faster. They put aside all thoughts of obstacles and forget the precipice does not show itself to the man in a blind rush until it’s too late.” 8. Remember, the Founding Fathers were rejecting a political system based on the “Divine Right of Kings and Queens” where Church and State were one, and where disobeying the State—even in trivial matters—was also tantamount to disobeying God and, therefore, was equivalent to sinning. 9. All that being said, and going back to No. 1, above, it must be remembered that a court can only apply the law to a set of admissible and proven facts where there is a non-hypothetical controversy between the parties. Also, the court should only rule on the precise controversy before it, by rendering a decision that can be practically enforced. 10. Thus, Kitzmiller did not really break new ground, it merely followed the practical rulings of courts when dealing with the teaching of religion in public schools, in that a religious belief cannot be taught as science. How can a court tell something is a religious belief? Essentially, by applying the principle that “if it walks like a duck, and quacks like a duck, it is a duck.” 11. All other things stripped away, Intelligent Design presupposed that there was a “Designer” at every step since the beginning of time, from the creation of the Universe to much later where an eyeball had to be assembled. This is no different than saying there was some “all-powerful God” responsible for all of creation. This is a religious belief, not a fact. 12. The Big Bang Theory and the Theory of Evolution, on the other hand, do not state whether or not there was a “Designer” (i.e., a God that created the universe via a Step 1) but, rather, these skip to Step 2, positing that all the matter in the Universe was contained in a concentrated mass that exploded outward and eventually formed into galaxies, stars, planets and other astronomical phenomena we see today, and at some point over the countless billions of years life formed and then evolved through adaptation. 13. In other words, even under the Big Bang Theory and the Theory of Evolution, it remains an open and unanswered question as to whether there was a God or Gods and, if so, what involvement he/she/it/they had in the creation of the Universe and any life in it. But, again, this latter point is a religious belief. Thus, the Kitzmiller court determined that one set of theories could be taught as science, while the other set (Intelligent Design) cannot be. 14. Looked at another way, the issue of the existence and extent of involvement of a “Prime Mover” is not a question either the law or the courts can ever answer. It is not only a matter of belief, but it is also a matter of particular beliefs—not every religious belief has the same creation myth. At most, courts can take judicial notice of different religions and what their beliefs are if relevant to decide a controversy, but cannot rule whether a religion or belief is true or untrue. Even in cases where laws of general applicability govern over religious beliefs—such as laws against animal sacrifice or bigamy/ polygamy—the courts have not said that a religious belief in these things are “wrong”; courts merely rule that such beliefs must yield to secular law. 15. True, separating science and religion is not an exact or precise undertaking. To paraphrase Arthur C. Clarke, “Any sufficiently advanced technology is indistinguishable from magic.” Put more bluntly, a caveman transported to Times Square would no doubt believe he was in the home of the gods. However, the Kitzmiller court did it best to make such a practical distinction based on the facts before it. If something is a religious belief, it can be taught pretty much anywhere but in a science class—social studies, history, English, it’s all fair game. But it cannot be claimed as science. This would seem to be a correct and common sense decision. Deus ex machina will generally not keep airplanes in the air, generate electricity or cure disease. Even if a prayer is “answered” in that what was prayed for happened, it cannot be duplicated in a peer-reviewed and controlled situation to a point where scientific principles would be satisfied that a “God” answered a prayer as opposed to there merely being a statistical chance of something occurring. 16. As far as quantum mechanics, that is taught in science classes (mostly physics), not as religion. Religious works such as those of St. Augustine can be taught in non-science classes for their historical or literary significance. If you believe such works touch on scientific principles, it would even be fair game to compare such works to theories of modern physics—but this does not mean that St. Augustine “discovered God,” it would only mean (for example) that he was intelligent enough to contemplate the general outline of Heisenberg’s Uncertainty Principle and creative enough to try to square this with his religious belief. 17. The foregoing is a lengthy way of saying that analysis of Establishment Clause issues does not need to go very deep, it is fairly obvious on the surface and from the evidence presented—as it was in Kitzmiller—that somebody was really pushing a certain religious belief, regardless of how it is dressed up in whatever word salad they used. The courts being a blunt instrument, that is the best that the courts can do. 18. The ironic thing about it is no court has ever said that one cannot believe whatever one wants, or that one cannot pray whenever and wherever one wants—there are only limits on the public (and usually ostentatious and pretentious) act of doing so in certain situations. A fifth grade kid who wants to say a “Hail Mary” before a test in public school is certainly free to say it in his or her own head, just like if they wanted to recite a poem or sing a Nirvana song to themselves. Just like there are reasonable time, place and manner restrictions placed on speech, and on what sort of weapons can be owned and carried, “freedom of religion” does not mean that you can practice and express your beliefs any time or place you want to on the government dime or on the public’s time. 19. In closing, perhaps a lesson is believe what you want, and let others believe what they want, and let’s everybody try to do so in private or where it would be appropriate (like in a church, mosque or synagogue, but not in the local Wal-Mart or public elementary school). People would certainly get along better.