Thursday, 1 December 2005

First Amendment analysis of Berkeley evolution web site

A lawsuit filed by Jeanne and Larry Caldwell against the operators of an educational web site about evolution (called "Understanding Evolution"), hosted by the University of California at Berkeley, has received international attention. Apparently, they claim that the use of public funds (a National Science Foundation grant) to write and publish documents that promote belief in evolution (which the Caldwells appear to believe contradicts their religion) violates the establishment clause of the First Amendment.[FN1] This is my "quick and dirty" First Amendment analysis.[FN2]

In general, the Berkeley site seems, to me, to be on solid ground, although the First Amendment establishment caselaw sometimes requires a very narrow focus on the particular statements at issue, as opposed to on the web site in general. From what I gather from news reports, only one element (or a small number of elements) of the site appears to be under attack. I think that element will survive First Amendment scrutiny, although, personally, I think it was a bonehead thing to publish in the first place. The statements being attacked are pretty foolish.

Some news articles report that the suit seeks to force the site operators not to "mention" religion. I doubt those reports are accurate, since a prohibition on "mentioning" religion would clearly be too broad. The courts have upheld or favorably discussed many government mentionings of or references to (1) religion generally, (2) particular religions, and (3) religious doctrines. For example: "In God We Trust" printed on money, presidential proclamations declaring a national day of prayer and thanksgiving, public offices closing on "Christmas Day," prohibitions on selling alcohol on Sundays, and the recitation of a prayer at the beginning of each session of Congress and of the Supreme Court.

The First Amendment analysis most often used by federal courts is the "Lemon test," named for the Supreme Court decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). The original Lemon test had three prongs: (1) whether the state action (or law) has a religious purpose, (2) whether the state action has the primary effect of advancing or inhibiting religion, and (3) whether the state action excessively entangles the government and religion. In more recent cases, the last two prongs have been merged (or at least brought close together), so today there are really two prongs: a "purpose" prong and an "effects" prong. The prongs were further muddied in the late 1990s when one of the Justices wrote in Agostini v. Felton that excessive entanglement is one factor to consider in determining whether a state action's primary effect is religious (the other two factors being government indoctrination and defining the recipients of government aid based on religious criteria).

Courts also sometimes use the so-called "endorsement test" when the government is engaged in expressive activities like publishing documents or sponsoring speakers (such as commencement speakers at public schools). The endorsement test asks whether the state action somehow endorses a particular religious viewpoint. The rationale, according to Justice O'Connor, is that such endorsement can make some people appear to be favored and others appear to be outsiders in the political community on the basis of whether they share the religious belief endorsed by the government. (Justice O'Connor urged adoption of this test in 1984, in a concurring opinion in Lynch v. Donelly, 465 U.S. 668 (1984). I am not sure if the Supreme Court has ever expressly adopted it, but the Court does now use it as part of the Lemon test, as a factor to consider in determining if the state action has the purpose or effect of advancing religion.)

Finally, where the use of public funds is concerned, the Supreme Court applies the "neutrality" test, which asks whether the state action treats religious groups in the same manner as other similarly-situated groups. Use of the neutrality test is a more recent trend, and it has been applied most often in cases involving government aid to schools that are affiliated with religious entities (e.g., vouchers, textbook handouts, and E-Rate).

That is a nutshell of the law. Now for some facts about the Understanding Evolution site.

The site's search engine returns three hits for "religion." One is the particular FAQ (frequently asked question) that is receiving all the attention. It is only one FAQ among many. That FAQ also provides a link to a web page of the National Center for Science Education (NCSE) which contains statements about evolution from religious organizations. The second hit contains the site credits, where a biographical blurb for Alan D. Gishlick states that Dr. Gishlick is interested in "the interface between science and religion, especially as it relates to biological evolution." The third hit is a list of FAQs on the controversies surrounding the teaching of evolution, which mentions the word religion solely in the context of a link to the same NCSE web page mentioned above. The rest of the FAQ answers on that page appear to be external links to other web sites with a terse description of what is on each external page.

Looking at the Understanding Evolution site as a whole, its mentionings of religion seem, to me, to be tangential and incidental to its main focus. The main focus appears, to me, to be just what is set forth in the site's "About" page: "Understanding Evolution is a non-commercial, education website, teaching the science and history of evolutionary biology. This site is here to help you understand what evolution is, how it works, how it factors into your life, how research in evolutionary biology is performed, and how ideas in this area have changed over time." That seems, to me, to be a good faith description of the contents of the site.

In the framework of existing caselaw, I doubt a court would rule any part of the site unconstitutional. It would be hard to construct a convincing argument that the site's primary purpose is other than scientific and educational. The site's primary effect is to disseminate facts about evolution and explanations of related concepts, with the intent of helping educators teach. I doubt anyone can plausibly argue that the site excessively entangles the government in any church or religious doctrine. The mere mention of a handful of religious entities and providing links to copies of their public statements hosted elsewhere does not seem, to me, to be particularly entangling or to endorse those particular religions over others.

Under the neutrality test, I think the proper question is whether the National Science Foundation (NSF) would, under the right circumstances, give a grant similar to the one it gave to Berkeley to a church if the church had submitted a proposal to create an educational web site about evolution that meets the same criteria as the Berkeley site — i.e., that it disseminates valid scientific information, that it is helpful to teachers, etc.

On the other hand, the particular FAQ that mentions religion does have some endorsement problems. It makes specific, declarative statements that evolution and "religion" are not incompatible and states that many religious groups accept evolution as fact. Those statements clearly have the effects of inhibiting (however slightly) religions which purport to be incompatible with evolution and of endorsing or advancing (however slightly) religions which purport to be compatible with evolution. They also have the effect (however slight) of making some people (e.g., fundamentalist protestants?) feel like outsiders.

Just how slight or not-slight those effects are is debatable — hence the endorsement problem and the need for good lawyers.

On the whole, I think the operators of the site have little to worry about. They might be ordered to revise or remove that particular FAQ. Rewording it in terms of particular religious groups rather than "religion" would make it more likely to survive First Amendment scrutiny. The site's controversy FAQs are instructive: they address much narrower concepts than "religion" (e.g., "What is Creationism?" and "What is intelligent Design?"), and they simply provide links to other web sites with terse introductions, without editorializing.

Believe it or not, that is the "quick" analysis.


  1. I have not read the Complaint; if anyone can provide a link to it, please email me.

  2. I originally wrote this essay as an email to a friend who had asked me about the Caldwell suit over dinner. The result was a very long email, so I decided to post it here. Please note one caveat: I wrote the caselaw summary almost entirely from memory which is now 2+ years old, so a mistake or two is possible. I will correct any errors brought to my attention.

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    Topics: Civil Liberties, Evolution, Science, Skeptical Inquiry
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