After Ohio recently showed the ID advocates the door, you just know they're going to have to find some means of whining and complaining that the decision was unfair. Never mind that it's a mere reversal of the board's earlier decision to include the pro-ID language, and is thus no less democratic than the original decision. Nah, the IDists have to spin this as some sort of violation of their rights.
What we got surprised even me. The Discovery Institute is arguing -- get this -- that the vote violates the Constitution's prohibition on religious tests for office. I am not making this up. I don't want to reproduce the nonsense in full, but it's hard to characterize how crazy this argument is without extensive quoting, so here goes:
The Ohio Debate and the "No Religious Test" Clause of the U.S. Constitution
The Darwinist opponents of teaching fully about evolution in Ohio may be engaging in a form of religious discrimination. By lobbying for a repeal of the Ohio State Board of Education standards, not only are Ohio students presented with a dumbed-down version of evolution, but religious supporters of teaching the best science are subject to discrimination.
By focusing on the personal religious views of some supporters, the opponents have engaged in conduct that looks a lot like discrimination against a public official because of his or her religion. Such religious discrimination could be a violation of the often ignored Article VI, No Religious Test clause of the U.S. Constitution, or the parallel Ohio State Constitutional provision.
Article VI No Religious Test Clause
Article VI of the Constitution provides that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Ohio Constitution Section 1.07 creates a parallel right.
Though the Article IV No Religious Test clause has seldom been addressed by the courts, Francis Beckwith has recently written a scholarly article that examines how this Constitutional provision plays out in the field of teaching about evolution in public schools. As Beckwith’s paper points out, the history of this oft-ignored Constitutional provision was to guarantee that individuals with religious beliefs would not be excluded from political office because of their religion. Religious beliefs cannot be the basis for excluding individuals from the political process. To apply these ideas, Beckwith draws a key distinction between motive and purpose, which courts would do well to take into consideration. Beckwith’s paper argues persuasively that motives are a type of belief, and hence cannot be a basis for excluding individuals from the political process.Beckwith’s framework, built around Article IV, has clear application to the politics surrounding the teaching of evolution in public schools.
Oh man, where to begin. First of all, let's look at what Article VI of the Constitution actually says about religious tests:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.Sounds sensible enough. But what the hell does this have to do with a school board, which I presume did not have to pass a religious test, voting against a pro-ID policy? The religious test for office means a religious test for office. It means, for example, that you can't have a law that bars Catholics from being elected to the school board. Or that you can't have a requirement that one must believe in the Trinity in order to serve as a public official of some kind. Such laws were commonplace during Colonial times, when the various colonies were dominated by different religious sects who wanted to keep members of other sects from participating in the political process. And they remained common (though usually not enforced) through modern times. Consider the example of local math professor Herb Silverman who had to sue to become a notary public because, as an atheist, he was unwilling to take a religious oath. This wasn't in 1795. It was 1995.
So what does this have to do with the Ohio school board's decision to overturn the ill-considered pro-ID policy? Nothing.
Now the bizarre rationale weaved by the DI seems to have come from Francis Beckwith's "scholarly article" (pdf) which appears to be unpublished and is slated for presentation at a political science meeting of all places. Beckwith argues that because a statue's sponsors or supporters have a religious motive, that doesn't mean that the bill should violate the 1st amendment. More on that later.
First of all, Beckwith's article doesn't say anything about Ohio (I'm sure it was written before the recent vote), so applying his reasoning to the Ohio case is an invention of the DI blog, not an argument of Beckwith's specifically. But more importantly, Beckwith's arguments pertain to how the Federal courts interpret the Establishment clause of the 1st amendment. He says that by focusing on religious motives, they are potentially violating a legislature's rights, because this effectively imposes a religious test on the legislature. The whole point of Beckwith's argument is that a legislative body should be free to exercise its religious beliefs without interference. To suggest that a legislative body was aggrieving itself would not only turn the argument on its head, it would be downright idiotic.
Which of course is what the DI does. To be consistent with Beckwith's thesis, they'd have to argue that the Ohio state school board violated its own rights and imposed a religious test on itself by voting the way it wanted to vote. Nuts. But the DI employs a bit of bait and switch here by implying that those who wanted to implement the standards (i.e. not actualy on the school board, and hence not elected to office) were the ones discriminated against. They whine that "By ignoring the clear scientific content of the standards and focusing on the personal motives and beliefs of some supporters, the critics have functionally excluded individuals from the policy process solely on the basis of their personal religion." But this is nonsense. No one was excluded from the political process. The IDists were allowed to join in, they just happened to lose. Being allowed to participate and getting your way are two separate things. Not everyone can get what they want at the same time, which is why we vote on things -- it's called democracy. And even if the DI's argument weren't effectively anti-democratic, it would still be irrelevant to the prohibition on religious tests. You can't violate a prohibition against religious tests for office just because a bunch of people who didn't run for office didn't get their way.
Now it would be easy to scoff at the DI for claiming that voting down a pro-ID policy is religious discrimination, given that they've consistently argued (even in this piece) that the policy is completely secular. It would also be easy to scoff at the rank hypocrisy displayed by the DI when they complain about "motive-mongering" -- what the hell have they ever done but attack motives? (At least it's actually true that the DI has religious motivations, unlike the motivation for advancing "materialism" that they impute on all of their critics.) But what's really insane about their argument is that it implies that any policy that was enacted for religious reasons must be allowed to stand, otherwise it's a violation of the religious freedoms of the people who wanted it. Say a Satanist wants to implement a policy requiring the sacrifice of a live kitten before each school board meeting. According to the DI's reasoning, anyone who opposes it is violating that guy's religious freedom. But this introduces an obvious paradox. If religious motives for striking down a law are off the table, then surely religious motives for implementing a law are off the table too. This leaves our kitten sacrificing bill in perpetual limbo -- never able to be passed, yet never able to be struck down because doing either violates someone's religious freedoms.
In the real world, the answer to this conundrum is that motives aren't dispositive. It's the effects of the legislation or policy we should be concerned with. The primary effect of sacrificing a kitten in this case is to advance the religion of Satanism. But the effect of overturning such a policy, no matter what the motive, is not to advance a competing religion, nor to specifically inhibit the Satanist cause. Current 1st amendment jurisprudence is based on what's called the Lemon Test, which includes the following three prongs:
You'll see that "motive" isn't anywhere in there. What is true is that the motives of a legislature are often weighed as being indicative of the primary effect or secular purpose of legislation. In other words, if the legislators themselves argue that a bill should be passed in order to advance religion, then that's a good reason for the courts to decide that the legislation has the primary effect of advancing religion. But just because a legislature has religious motives, this in and of itself does not make it in violation of the 1st amendment. For example, if I were to argue on religious grounds that we should pass a bill to feed the poor, then that's not unconstitutional. Feeding the poor, absent any additional measures, does not have the primary effect of advancing religion. (Of course, if my bill calls for hiring a bunch of priests to evangelize to the poor, with some specious argument that this will empower them to be self-sufficient, then that's a different story.)
- The government's action must have a legitimate secular purpose;
- The government's action must not have the primary effect of either advancing or inhibiting religion; and
- The government's action must not result in an "excessive entanglement" of the government and religion.
And that brings us back to Beckwith. Concerning his article, there's the obvious point that a religious test for office means what it says, and in the absence of an actual religious test, there can be no violation of this Constitutional principle. That should probably be the end of it right there. In fact, I'd probably say that the prohibition on religious tests is fully subsumed by the 1st amendment, and thus his argument is really about the Free Exercise clause. Dragging in religious tests is a red herring.
But aside from that, I'm not going to try to critique Beckwith's article because I'm not a lawyer (neither is Beckwith) nor even a legal scholar. Suffice it to say that nothing in my quick reading of his article would place it in opposition to anything I said about motive vs. effect. Beckwith makes the same basic distinction. He then goes on to claim that a couple of court decisions, such as the Cobb county policy to place anti-evolution warning labels in text books, and some case about having a moment of silence in schools, were wrongly decided on the basis of his analysis. This comes down to Beckwith insisting that just because the people who passed these laws/policies had obvious religious motivations, that doesn't mean that they had the effect of advancing religion or lacked a secular purpose. Whatever. These sorts of things are weighed on the case by case basis, and of course ID has had its day in court and failed miserably. The slightly modified "critical analysis" proposals that the DI is trying to push in Ohio and South Carolina (among other places) have all the same weaknesses.
And let me note, in closing, that the DI's claim of religious motivations for reversing the Ohio school board policy is nonsense itself. Sensible people object to their policies because they harm science education by actively misleading students. The ID's case here is built upon a single religious comment made by one school board member. That apparently is enough to negate every other stated reason for striking down the policy, including the fact that all major scientific organizations oppose such polices on purely scientific grounds. Yet they expect us to ignore as meaningless hundreds of documented religious statements that have come from them.