Religion in the Public Square: A Textbook Case
By Joseph Knippenberg
One of the great debates in contemporary legal and political theory is how various participants in a liberal and pluralistic political order should make their arguments. One of the most prominent arguments, advanced by the late Harvard philosophy professor John Rawls and his followers, calls for everyone who wishes to participate in the public square to make use of “public reason,” articulating positions in such a way as in principle to be accessible to everyone. In other words, to be entitled to participate in the public debate, I have to be prepared to offer arguments that depend, not upon a revelation given “only” to me, but upon reasons that are intelligible to our “unaided reason” (I’m tempted to say “to the reason God gave us”). If I can’t offer such reasons, so the argument goes, if I rely upon a faith that I share only with my fellow churchgoers, then my position can’t be admitted into the debate. I’m not entitled to win the argument because, in effect, my victory would mean that an essentially and exclusively religious position would gain the force of law. If my voice is motivated by what some would call an “irrational animus,” it must be marginalized, lest I use it to oppress others. If I can’t in principle persuade by an appeal to reason, then I can’t be permitted to participate in the debate.
If only this were strictly an academic debate, filling seminar rooms, conference agendas, and journals without actually influencing or affecting anything beyond the campus gates! I’m here to report, however, that it ain’t so. The Supreme Court has at least twice adopted an essentially Rawlsian position—in Romer v. Evans (dealing with a statewide effort in Colorado to override local gay rights ordinances) and, more recently, in Lawrence v. Texas (overturning a Texas law that criminalized homosexual sex)—arguing in both cases that, to put it more nicely than the Court did, there are no “public reasons” available to support the laws at issue here. The Massachusetts Supreme Judicial Court took a similar tack in its Goodridge opinion, denying that there is any “constitutionally adequate reason for denying civil marriage to same-sex couples.”
It ought to be possible to develop an immediate practical response to this trend by developing “public reasons” for one’s positions by expressing one’s opinions in terms that do not depend upon religion or faith for their force. Whatever one’s deepest personal reasons, one can also offer arguments allegedly accessible to everyone, thereby earning a seat at the table set by the Rawlsians and their followers in the judiciary.
But, as a recent court case suggests, that’s easier said than done. That case, Cobb County School District v. Selman, et al., in which a panel from the 11th Circuit Court of Appeals heard oral arguments last week, deals with a sticker the Cobb County (Georgia) School Board ordered affixed to high school biology textbooks. Here’s what the sticker said:
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.
Back in January, Federal District Judge Clarence Cooper ruled that this sticker amounted to an un-Constitutional endorsement of religion because it was supported by religious opponents of evolution. Let me repeat: despite the fact that the sticker says nothing about religion, creation, or intelligent design—and encourages open-mindedness, careful study, and critical consideration—and despite the fact that its 33 words are affixed to a textbook that devotes 101 pages to evolutionary theory, it is an affront to the First Amendment Establishment Clause, according to Judge Cooper.
What matters to him, and to those who support his position at the appellate level, is that the sticker’s language—however “reasonable” it seems at first glance—is supported by those who have religious objections to teaching evolution. Here’s how Judge Cooper put it in his opinion:
The distinction of evolution as a theory rather than a fact is the distinction that religiously-motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement, and that was exactly what parents in Cobb County did in this case.
This statement combines two principal lines of argument, one proffered largely by science educators and scientists, the other developed at great length in an amicus brief offered by the National Center for Science Education and the People for the American Way Foundation.
The “scientific” argument is that the sticker’s distinction between “theory” and “fact” is colloquial, rather than scientific. If education is supposed to follow and uphold professional norms, then calling evolution “a theory, not a fact” doesn’t serve an educational purpose and, according to the scientists and science educators, threatens to disserve science education. (I say “threatens” because there was little evidence offered at trial to suggest that the sticker had a deleterious effect on science education. A few students apparently did try to argue that evolution was “just” a theory, and one teacher observed that he had to spend some time explaining the distinction between theories and facts, but he also conceded in his testimony that “students have brought up the topic of religion as it relates to the theory of evolution no more frequently than they did before the sticker was placed in textbooks.” In addition, Judge Cooper observed that “the sticker in this case does not preclude evolution from being taught and has not resulted in any complaints that religion is being taught in science classrooms.”)
If there were no more to the dispute than this, we would have a classic example of a conflict between professional educators and citizens that wouldn’t rise to the level of a Constitutional issue. Simply, it would exemplify the tension between professional norms and citizen control that has always marked the history of American public education. Teachers always complain that school boards don’t let them do their jobs, and school boards always claim to represent the concerns of parents. Since public education embodies both civic and professional concerns, which aren’t necessarily consistent with one another, the tension and conflict are likely ineradicable in principle, though local accommodations are almost always available.
Of course, the way in which parental concerns trench upon professional norms in this case allegedly depends exclusively upon the religious commitments of the parents. The aforementioned amicus brief argues that the sticker represents the “third generation” of opposition to the teaching of evolution. First, there was the outright prohibition of teaching evolution, ruled un-Constitutional by the Supreme Court in the 1968 case, Epperson v. Arkansas. Then came the “balanced treatment” statutes, ruled un-Constitutional in Edwards v. Aguillard (1987). The lesson we are to draw from this line of cases is that “the government is not permitted to suppress, disparage, or counterbalance the teaching of evolution in response to the objections of some religious groups.”
The third generation is the craftiest, aiming “to undercut instruction in evolution in every way possible, while avoiding much of the overtly religious information that was a focal point of the second generation of anti-evolution measures.” Thus “the post-Edwards anti-evolution measures focus on alleged problems within the scientific theory of evolution, and avoid positing an affirmative alternative approach that coincides too closely with the religious version of creation. ‘[T]hey have learned…what not to say.’”
There are two points to be made here. First, a great deal has to be read into the Cobb County sticker in order to turn it into a “third generation” anti-evolution measure. “Theory” has to be glossed pejoratively, unmentioned criticisms of evolution have to be supplied, and the motives of the sticker’s supporters have to be impugned by being assimilated to those of their overtly anti-evolution predecessors. Second, it’s possible to regard the “evolution” of public opposition to evolution (if I may use the term) as precisely an instance of the kind of argumentive adaptation called for by the Rawlsians. Evolution opponents are trying to use “public reason,” offering arguments drawn, not from Genesis, but from the annals of science and from the neutral language of rationalism.
Much could be said in elaboration of the first point. Judge Cooper and the pro-evolution litigants all begin from the “endorsement doctrine” developed by Sandra Day O’Connor in Lynch v. Donnelly, the first of a long string of public religious display cases she has influenced. (Judge Cooper goes so far as to assert that this case “bears great similarities” to those cases.) The contextual narrative they prefer focuses on the activities of parents opposed to the teaching of evolution and their alleged victory in persuading the school board to adopt the sticker, which “singles out” evolution as a questionable “theory.” By contrast, the school board’s attorneys argue that the overall picture in Cobb County actually favors evolution: “In this case, the School District was in the process of strengthening, not curtailing, evolution instruction, in the process of removing, and not implementing, restrictions.” Furthermore, “individuals identified by the District Court as fundamentalist Christians did not approve of the Sticker, nor the other curriculum improvements made by the School District.” We thus have competing narratives. Which one prevails will depend on the sensibilities of the three-judge panel, which included two Republican appointees (among them the recently filibustered William Pryor). Initial press reports of the oral arguments suggest that it was not a good day for the opponents of the stickers.
Leaving aside the fate of textbook stickers and science education in Cobb County, Georgia, the arguments surrounding the case also say a great deal about the willingness of the custodians of liberal orthodoxy to accommodate even the muted and translated voice of religion. It seems that adopting the mantle of “public reason”—finding potentially generally acceptable rational arguments for one’s positions—isn’t good enough. So long as one’s motives are suspect, so long as one’s deepest motives are not sufficiently secular and “rational,” one’s positions will be out of bounds, unsuitable for the mixed company of our pluralistic society.
One begins to wonder whether liberal toleration is a sham, offered only to the most docile, and whether liberalism isn’t itself the very sort of orthodoxy it claims to eschew.
Joseph Knippenberg is a professor of politics and associate provost for student achievement at Oglethorpe University in Atlanta. He is a weekly columnist for The American Enterprise Online and a contributing blogger at No Left Turns.
