Law review follies (part 4,242,535) [Updated]

I will just say that it is unfortunate that an obviously accomplished law student would write, and the Louisiana Law Review would publish, an article so riddled with mischaracterizations, baseless assumptions, and apparent ignorance of the fundamentals of this debate.

I've been thinking about potential legal arguments about the constiutionality of teaching "intelligent design" creationism in public school science class. I would argue that if something is genuinely scientific, it can be taught because science is inheriently non-sectarian. However, this is the exact property of science that "intelligent design" advocates and activists routinely complain about, which establishes to me that not only are they not scientific, but inheriently sectarian and thus not suitable for public school classrooms.

When a California state senator, on whose staff I was privileged to serve, held hearings in 1980 on character education in public schools, this was interpreted by many (on both left and right) as an opening through which sectarian beliefs could be smuggled into the classroom. We frequently heard the claim that one could not have morals without also embracing a specific religious framework for them (for which read "conservative Christianity"). It's a good thing we didn't try to talk about evolution at the same time.

Perhaps it's appropriate that on Christmas Day I read a letter to the editor in my hometown newspaper, the Porterville Recorder, in which a student at Cal State Fresno (my alma mater) explained that atheism is incompatible with morality and that this had been taught to him by his Fresno State profs. (I have my doubts about that last part.) Moved by the spirit of the season, I wrote a response citing Luke 18, wherein the believer is cautioned not to beat his breast in public like the vain Pharisee, but I doubt it will do any good.

Reed:

Yes, I think there's no debate that if the ID people could clearly define what is and is not ID, suggest some tests to identify and distinguish actual examples, and experimentally support the claim that what is defined as ID is qualitatively different from "natural" or "undesigned" or whatever, and demonstrate some evidence of design, then (after the usual gestation period of peer review and replication), the competing claims would graduate to something presentable in science class, *even though* they are sectarian. In brief, if some religious faith turns out to be right according to traditional scientific investigation, then it is eligible for science curricula as a scientific truth, which is to say, tentative and subject to change any time.

So, Tim, when is your law review article giving the facts going to appear? And where?

Before the significance of the LLR article is elevated disproportionately, please keep in mind that it represents nothing more than the opinion or argument of one law student.

What some readers of this blog may not appreciate is that a "Law Review" should not be equated with a peer-reviewed scientific journal. A law review is a student-edited journal, and it rarely speaks with anything approaching a single editorial voice. The opinions are those of the authors, not the editors.

For example, in the same issue of the Louisiana Law Review may be found various articles investigating the legal and sociological implications of cohabitation, supporting gay rights and same-sex marriage, discussing the history of habeas corpus, comparing the laws governing human remains in formerly colonial countries, and discussing the rights of transsexuals in Europe and the United States. Hardly a hotbed of right-wing conservatism.

Whatever else one makes of Ms. Ellerbe's Comment, it should be recognized as the opinion of one law student.

Nothing more.

John R. is correct, of course. Few law reviews are peer edited. Recently, Judge Posner complained that the law review world is really just mass self-publishing. Still, some law reviews are better than others, and some law reviews take care to publish only serious scholarship, and law reviews tend to have faculty oversight which would weed out the worst work. So I think it's still a shame that something so extraordinarily bad as this article would be published.

Mr. Darrell: I'm working on something, but it will be a while yet.

While a government teacher may tell a student any number of things---including false things, unfortunately---he may not tell a student that a particular religious claim is either true or false.

— Mr. Sandefur

I doubt that ACW's first question has ever been put quite that way in a court of law, but it seems that he's asking about what's often called "accomodationism," which is the theory that the Free Exercise Clause of the First Amendment requires government to make certain exceptions in favor of people whose exercise of religion would be unduly burdened by certain government acts.

For example, in Sherbert v. Verner, 374 U.S. 398 (1963), the plaintiff was denied unemployment compensation when it was discovered that she refused to work on Saturdays. Unemployment compensation rules required a person to make certain attempts at employment, so she was denied compensation on the grounds that she wasn't really trying to keep a job. She argued that, as a Seventh-Day Adventist, she was forbidden to work on Saturdays, and therefore that this unemployment compensation rule violated her right to Free Exercise. The Supreme Court agreed.

Now, more recently, the Court reversed course (although, in a perplexing move, it refused to actually overrule Sherbert), and held, in Employment Division v. Smith, 494 U.S. 872 (1990), that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Id. at 879 (citation omitted). In that case, a guy was denied unemployment compensation after he was fired for using an illegal drug (peyote), which he used for religious reasons. The Court said that, so long as a law is not a pretextual attempt to interfere with someone's freedom of religion, that he can't get out of the law just because it interferes with his religious beliefs. The reason was that Sherbert's accomodation rationale would allow a person to get out of a law by claiming that it violated his religious beliefs. See id. at 885 ("To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs...permitting him, by virtue of his beliefs, to become a law unto himself...contradicts both constitutional tradition and common sense." (citation omitted)).

This, of course, answers ACW's second question, and comes as close as I can think of to answering his first question, of whether a neutral law with legitimate secular criteria could be invalidated because it happens to coincide with a religious belief. Indeed, in many cases, the Court has repeatedly held that, just because a government act happens to benefit religion does not mean it violates the Establishment Clause, so long as there are valid, secular reasons for that government act. See Agostini v. Felton, 521 U.S. 203, 244-45 (1997) (citing examples). This, as ACW points out, is the only idea workable within a rule of law!

[A]s I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, "Render unto Caesar the things that are Caesar's and to God the things that are God's." Neither God nor religion requires an endorsement from Government---nor does the law permit it.

[A]s I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, "Render unto Caesar the things that are Caesar's and to God the things that are God's." Neither God nor religion requires an endorsement from Government---nor does the law permit it.

In answer to ACW: Teach the conclusions of scientists in science classes. Teach the beliefs of religionists in comparative religion classes. Students believe whatever they conclude. Education is not indoctrination. Quite the opposite. At its best, it develops the critical thinking skills that defend against propganda.

At its best, it develops the critical thinking skills that defend against propganda.

Dr. Beckwith fails to note the judge's use of the authority of the opponent in opposition to the opponent's case. The Judge has made a hostile witness out of the scriptures.

That's not exactly "citing as authority."

It's also known as "exposing hypocrisy."

I suppose that's too simplistic for graduate level philosophers, but it carries weight among us simple Bible students.

On the subject of law reviews: The Tennessee Law Review is putting out a special issue on the topic of "Who Wrote Shakespeare?," with contributions primarily from so-called Oxfordians (people who believe the Earl of Oxford wrote Shakespeare, despite minor glitches in the evidence such as Oxford's death in 1604, before about half the plays were written). This debate is to Shakespeare studies what ID is to biology. This publication is already being touted as some sort of academic watershed lending credibility to these arguments.

Without looking to be certain, I would suggest ACW's question may be answered in Judge Overton's decision in McLean v. Arkansas. My recollection is that the arguments in the Arkansas legislature, and by the Arkansas attorney general, were first that creationism was science, and second, that evolution was taken on faith, like religion, and so a belief of a few Christians in creationism was "as scientific" as a "belief" of scientists in evolution. Overton's decision includes lengthy discussion of what is science and what is not.

In the end, Overton noted that there was no science backing creationism, based on the admissions of each and every creationist witness in the case. Each was asked two questions, generally, whether they knew of science that backed creationism, and from where they thought creationism sprang. Each answered they knew of no science, and each answered that creationism was based on a particular (or peculiar) religious interpretation of Genesis.

Had there been solid scientific evidence in favor of creationism as science, Overton suggests implicitly at least that he would have ruled in favor of a law requiring its teaching with evolution.

Several religions believe in the efficacy of medical care by professionals (who rely on naturalism in their diagnoses and treatments of disease and trauma). Here in Dallas we have hospitals operated by Methodists and Presbyterians, by Baptist universities and Catholic institutions. Mormons formerly operated dozens of hospitals throughout the Mountain West. I doubt that any judge would rule germ theory of disease, or circulation of the blood, or setting of bones, or methods of surgery, to violate the establishment clause, simply because most Christians also endorse those processes and have faith in their healing properties.

I think it's also important to note that Congress passed a law effectively nullifying parts of Smith, allowing and licensing the religious use of peyote. My old boss, Orrin Hatch, was one of the principal advocates of the law -- based on his appreciation, as a Mormon, for the preferable state of having government stay out of religious affairs wherever feasible. (Hatch is not a user of peyote -- Latter-day Saints oppose such use of hallucinogens.)

I suppose that's too simplistic for graduate level philosophers, but it carries weight among us simple Bible students.

If we teach only the findings and products of science---no matter how useful and even inspiring they may be---without communicating its critical method, how can the average person possibly distinguish science from pseudoscience? Both then are presented as unsupported assertion. In Russia and China, it used to be easy. Authoritative science was what the authorities taught. The distinction between science and pseudoscience was made for you. No perplexities needed to be muddled through. But when profound political changes occurred and strictures on free thought were loosened, a host of confident or charismatic claims---especially those that told us what we wanted to hear---gained a vast following. Every notion, however improbable, became authoritative . . . . It is enormously easier to present in an appealing way the wisdom distilled from centuries of patient and collective interrogation of Nature than to detail the messy distillation apparatus. The method of science, as stodgy and grumpy as it may seem, is far more important than the findings of science.

A candle in the dark?

Well, as Dickens once wrote: 'The stairs were dark. But darkness was cheap, and Scrooge liked it.'

So this is the quality of work we can expect now that Oral Roberts is opening a law school? Or perhaps people with experience in law will tell me that it's always been this shoddy...

"[t]he objectives of the American education system and Supreme Court jurisprudence leave the door open for the teaching of competing origins theories within the confines of the Constitution if certain criteria are met." Id. at 590.

This is apparently some new usage of the word 'competition' of which I was previously unaware. When did compensating for competitive inadequacies through seeking political advantage in deceit and demagoguery become competitiveness?

Well, as a matter of memetics, that is a form of competitiveness, I suppose, though hardly a pleasant one.

Different law schools have different standards. The Harvard Law Review publishes, in theory, only quality material--although, as we all know, they recently betrayed that legacy very badly. In law, as in all things, no amount of oversight and regulation can replace the consumer protecting himself.

Matthew 22:15 Then the Pharisees went and plotted together how they might trap Him in what He said. Matthew 22:16 And they *sent their disciples to Him, along with the Herodians, saying, "Teacher, we know that You are truthful and teach the way of God in truth, and defer to no one; for You are not partial to any. Matthew 22:17 "Tell us then, what do You think? Is it lawful to give a poll-tax to Caesar, or not?" Matthew 22:18 But Jesus perceived their malice, and said, "Why are you testing Me, you hypocrites? Matthew 22:19 "Show Me the coin used for the poll-tax." And they brought Him a denarius. Matthew 22:20 And He *said to them, "Whose likeness and inscription is this?" Matthew 22:21 They *said to Him, "Caesar's." Then He *said to them, "Then render to Caesar the things that are Caesar's; and to God the things that are God's." Matthew 22:22 And hearing this, they were amazed, and leaving Him, they went away.

Luke 20:20 So they watched Him, and sent spies who pretended to be righteous, in order that they might catch Him in some statement, so that they could deliver Him to the rule and the authority of the governor. Luke 20:21 They questioned Him, saying, "Teacher, we know that You speak and teach correctly, and You are not partial to any, but teach the way of God in truth. Luke 20:22 "Is it lawful for us to pay taxes to Caesar, or not?" Luke 20:23 But He detected their trickery and said to them, Luke 20:24 "Show Me a denarius. Whose likeness and inscription does it have?" They said, "Caesar's." Luke 20:25 And He said to them, "Then render to Caesar the things that are Caesar's, and to God the things that are God's." Luke 20:26 And they were unable to catch Him in a saying in the presence of the people; and being amazed at His answer, they became silent.

In response to Grand Moff Texan Comment 12719:

Ellerbe went to law school at LSU.

Whether this is a comment on the quality of the legal education available at LSU is open to debate. However, it is manifestly clear to me (who after all only went to the University of Mississippi Law School, and thus probably ranks a few levels below someone like GMT), that Oral Roberts University and Lousiana State University are not the same institution, nor are they in the same state. Perhaps Mr. Moff Texan (Moff-Texan?) was attempting to make a clever comment on how graduates of LSU law school are no different than graduates of Oral Roberts University. If so, I submit to him that he has never attended a football game in Death Valley.

"Any person in America is free to use that phrase at any time, in any classroom or any other place in this country, regardless of the decisions in the Newdow case.*"

You gotta be shitting me. What planet do you live on? Teachers can't even say "Merry Christmas" in the public schools in the Austin area. The bauble bedangled pine tree at the local middle school this year was officially a "Holiday Tree" instead of a "Christmas Tree". Students can call it whatever they want but faculty cannot.

Teachers can't even say "Merry Christmas" in the public schools in the Austin area.

Well, I don't know if it's a lie, but it's at least a misunderstanding. Teachers most certainly can say Merry Christmas in Austin or anywhere else, and if a government official tells a teacher not to say that, the teacher has grounds for a lawsuit, in my opinion. If a school official decides to call a Christmas Tree a Holiday Tree, the official has that authority, but that decision is not required by the First Amendment; current law permits the display of Christmas trees, so long as they are not done in a way that puts a government imprimatur on religion.

As I've said before, school administrators are frequently ignorant of what the law permits and/or requires, and they tend to do stupid things as a result, like forbidding teachers to say "Merry Christmas." But that is not the law, and school officials who do such stupid things risk (meritorious) lawsuits.

Also, I ask that commentors refrain from obscenities on Panda's Thumb. Thank you.

Teachers across Texas greeted students with "Merry Christmas" through the entire month of December. There were hundreds, perhaps thousands, of Christmas performances. Christmas trees were put up in thousands of schools (we had at least two in our school in Irving).

It's not that I don't trust you, Dave, but do you mind letting me know which district you're in? I'd like to check out their policy on holiday greetings. You can e-mail me if you wish.

The bauble bedangled pine tree at the local middle school this year was officially a "Holiday Tree" instead of a "Christmas Tree".

Historians say the Tannenbaum dates to the Druids of northern Europe, who lived several centuries before Christ and used pine boughs to mark the winter solstice. Even some evangelical Christians, acknowledging its pagan past, jokingly refer to their trees as "Babylon bushes." ...

It's not that I don't trust you, Dave, but do you mind letting me know which district you're in? I'd like to check out their policy on holiday greetings. You can e-mail me if you wish.