Discovery Institute’s “Academic Freedom Act” — Presumptively Void

Why would a state legislator or a school board member ever consult with the Discovery Institute about science education? In particular, given the existence of their insidious Wedge Strategy, why would anyone seek to implement the Discovery Institute’s misleadingly named Academic Freedom Act?

Think about it. If you wanted to improve race relations, would you seek guidance from the Klan? If you wanted to improve your child-rearing techniques, would you consult with NAMBLA? If you wanted advice in starting a new business, would you study the Communist Party’s publications?

Of course you wouldn’t seek information from those sources. They promote the polar opposite of your purposes. So why would anyone who is sincerely attempting to improve science education ever consult with creationists? The question really answers itself.

Therefore, if a state enacts some version of the Discovery Institute’s “Academic Freedom Act,” and the effects of that law are challenged in court — as they inevitably will be — there should be an irrebuttable presumption that any state action under the Academic Freedom Act (or anything similar to it) is unconstitutional.

Ah, I see some hands have gone up. Okay, you need to know about the Lemon test. It was relied on by Judge Jones in the celebrated case of Kitzmiller et al. v Dover Area School District et al., to determine if a state action (that includes the actions of local school boards) violates the First Amendment. That test comes from Lemon v. Kurtzman, 403 U.S. 602 (1971), in which the US Supreme Court said (emphasis supplied):

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” [citation omitted]

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [citations omitted], finally, the statute must not foster “an excessive government entanglement with religion.”

So there it is, the three-pronged Lemon test. To summarize, in order to survive a First Amendment challenge: First, the statute (or school board policy, or any state action) must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion, and Third, the statute must not foster “an excessive government entanglement with religion.”

Now then, when a state adopts a “model law” promoted by a creationist outfit like the Discovery Institute, is there anyone — who is both sane and honest — who believes that such a law has even the slightest secular purpose? Of course not. Thus our suggestion that such laws should be irrebuttably presumed to be invalid.

Copyright © 2009. The Sensuous Curmudgeon. All rights reserved.

• • • • • • • • • • •

. . Permalink for this article