Establishment Clause and Intelligent Design: An Analysis of Schuneman’s Article
By Andrea Nelson
“Congress shall make no law respecting an establishment of religion . . .” -Establishment Clause, 1st Amendment to the United States Constitution
The Establishment Clause forbids any law giving preference to or forcing belief in any one religion. Although a law may not expressly establish a religion, it may nevertheless be a law respecting a religion. Such a law would provide a slippery slope to establishing a religion, and therefore offend the first amendment.
How does one determine whether or not something is “religion” for Establishment Clause purposes? In the article, One Nation, Under . . . The Watchmaker?: Intelligent Design and the Endorsement Clause, Schuneman addresses the constitutionality of allowing the Intelligent Design Theory to be taught in science classes at public schools. He argues that Intelligent Design Theory [IDT] should not have a place in science curricula because the theory is a religious concept that does not belong to the “hard sciences,” and thus is forbidden by the Establishment Clause.
Intelligent Design Theory
The IDT claims that “certain features of the universe and of living things are best explained by an intelligent cause, not an undirected process such as natural selection” (Intelligent Design). In other words, the Evolutionary theory is an incomplete and/or incorrect account of life’s origin and development because that theory does not account for the complexities in life which necessitate a “designer.” IDT enthusiasts believe that IDT should be taught alongside Evolution in public schools as an alternative scientific account of the same occurrence. They also claim that IDT has no association with any one religion.
Theory Implicates Religion
Though the Supreme Court has not fully defined “religion,” some courts have attempted to clarify what constitutes as “religious.” Examples include: reverence of and obedience to a supernatural creator, addressing “fundamental and ultimate questions” that are “comprehensive in nature” and at times including “formal and external signs” (Schuneman, 191-92). Schuneman proposes another test based on an anthropological application: “an idea [is] religious if it invokes supernatural agency as the cause of observed natural phenomena” (Id. at 196). He concludes that this test is consistent with the Supreme Court’s application in that the Court has “never held that the notion of supernatural agency fails to qualify as religious belief” (Id. at 197).
Schunenan’s proposed test is problematic, to say the least, for supporters desiring IDT to be taught in public schools. The “design implies the designer” or “supernatural intervenes in the natural” elements of IDT conform to what the Court has already held to be a religious belief. Does it follow that teaching IDT violates the establishment clause?
Whether Inclusion of Theory in “Hard Science” Courses Offends the First Amendment?
It is not the case that the government is forbidden association or action with all “religious notions.” However, there is danger in allowing religious notions to be taught under the guise of “hard science.” Shuneman outlines three tests the Supreme Court has employed to evaluate whether a law has the effect of establishing a religion, and therefore prohibited by the Establishment Clause: the Lemon test, the endorsement test, and the coercion test.
The Lemon Test– Lemon v. Kurtzman
- Whether the law has a “secular legislative purpose.”
- Whether, in effect, it “neither advances nor inhibits religion.”
- Whether it “fosters government entanglement with religion.”
- Does exposure to IDT in “hard science” promote student’s “critical” secular purpose?
- If IDT satisfies prong (1), what does that do to the definition of “hard science”? (ex: the inference of supernatural agency)
The Endorsement Test– Lynch v. Donnelly
- Whether it fosters “excessive entanglement with religious institutions.”
- Whether it is an “endorsement or disproval of religion.”
- How can the inclusion of IDT in “hard science” curriculum be interpreted as government endorsement of religion?
- Which religion is it endorsing?
- If IDT was adopted into social science curriculum instead of hard science curriculum, then could it still be interpreted as government endorsement of religion?
- Note: test calls for “reasonable, objective observer”
The Coercion Test– Lee v. Weisman
Establishment Clause has a “minimum guarantee” against coercion
- Whether the government provides “direct aid to religion”
- Whether the law coerces people to “participate or support religion against their will.”
- How could IDT in “hard science” class participation or homework be construed as coercive?
- How do you grade correct answers on a test over IDT in “hard science”?
- What would change, if anything, if IDT were taught in the context of a social sciences course (instead of a “hard sciences” course)?
Article Cited:
Nicholas A. Schuneman, One Nation, Under . . . The Watchmaker?: Intelligent Design and the Establishment Clause, 22 BYU J. Pub. L. 179 (2007).
Media:
Texas Board Hears from Pro-Intelligent Design Scientists
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Learning Constitutional Law 
March 30, 2009 at 2:08 am
Evolution is often attacked by IDT advocates because it does not offer accurate predictions the way other hard sciences do. They point out that evolution is retrodictive, rather than predictive, and any number of incompatible explanatory schemes can be imposed upon the same data. There are two problems with this line of reasoning. First, if all non-predictive explanatory schemes are on equal footing, then there is no reason that an IDT involving the Abrahamic God (which is often what they want) is the main theory that should be taught. There are 10,000+ recorded religions in the world’s history, each with its own creation story (Oxford Almanac of Religion). By what criteria are we to filter accounts are to be taught in the classroom? Secondly, the advocates of IDT often conflate micro and macro evolution in order to create a strawman to knock down. While macro evolution, the process by which the world’s species arrived at their current state, is not directly observable, micro evolution is. Experiments involving fruit flies and other species that rapidly go through generations demonstrate that the two primary mechanisms of evolution, genetic mutation and natural selection, are empirically verifiable and statistically predictable. It is from this empirical base that we make causal inferences about macro evolution. For advocates of IDT, the starting point itself is speculative and non-empirical. I believe that is how the two theories can be demarcated for sake of selecting what should be taught in science classrooms.
March 30, 2009 at 10:17 pm
Nick, with all due respect, I have to disagree with your conflation of ID and Creationism. You’ve outlined two “problems” with ID reasoning that really are philosophies of creationists more than ID theorists.
Creationism asserts that man was created according to some scriptured story: usually the Bible in our discussions. This creation is done by God, or a God.
It does not follow, however that ID want us to follow an Abrahamatic view of the design itself, though you assert that as an assumption. In fact, as a strong proponent of ID, most ID theory is agnostic to WHAT or WHO did the designing. It could be super-intelligent race, God, etc. They really do not care. Therefore, your first criticism of ID really isn’t a criticism of ID so much as creationism. Allowing teaching of ID would not require a teaching of a creation story, but simply the theory, just as the teaching of evolution does not require a systematic explanation of each evolutionary step.
Secondly, ID deals on the micro-level as well. In fact, M. Behe, one of the “founders” of the ID theory, deals with many different micro-evolutionary concepts in his book “Darwin’s Black Box.” His thesis is that because many systems in our world are irreducibly complex, they could not have formed by the traditional Darwinistic theories of evolution. He makes no clear assertion of macro-evolution, but implicated even the micro-evolutionary aspect of evolution.
While ID and creationism are not mutually exclusive theories, and many people do believe in both, that does not mean that they are congruous. The argument for teaching ID in schools is more based on the assertion that 1) Evolution cannot explain everything, and ID can help fill in the gaps, and 2) Even if one does not “believe” the ID theory, it is still as much a scientific theory as evolution, and should be given such weight.
March 30, 2009 at 10:52 pm
Allen, I recognize that ID does not necessarily imply belief in the Abrahamic account of creation. I should have been more clear. As I indicated “it is often what [ID theorists] want,” but not always. There are many non-Abrahamic ID theories, including my favorite, Raelism (http://en.wikipedia.org/wiki/Raëlism). In sum, I concede your point, and I should have used better word choice.
I have not read Behe’s book, but I am familiar with his mouse trap argument. He claims that unless all of the parts functioned together, the system would be useless. It is an all or nothing affair. In a biological context, this would mean that the non-functioning system would be eliminated because it would not contribute to survival. My question is this: can’t useless characteristics get genetically transmitted from generation to generation as long as they are not to the detriment of the organism? If certain characteristics neither help nor hinder the organism, they can still stick around. One day it is possible, in principle at least, that the characteristics acquire a function in a particular environment or mutate to take on a function. I recognize that the probability is very low, but the time frame (4 billion years) for useless characteristics to form a complex, functioning systems is great. Again, I do not know Behe’s work that well; so I need to be informed and probably corrected.
March 31, 2009 at 2:21 pm
Yes, Nick, they definitely can get transmitted if they are not detrimental to the workings of the organism. And in the mouse trap example, this is a fair criticism.
However, one of Behe’s example is that of a beetle with a poisonous sac in it’s abdomen. If any part of the sac had developed independently, it would have caused trouble for the bug (if the sac developed first, it would unnaturally hamper abdomen function, if the poison had developed, it would have killed the bug, if the transmitter organs had developed, they would have nothing to attach to, etc). The implication is that often these genetic mutations are not simply randoms parts that are useless but not harmful, but that oftentimes they could be detrimental to the organism.
Hope this clarifies the point a little more.
April 2, 2009 at 5:45 pm
I think there is a reason why the Establishment Clause was there with Freedom of Speech in the first amendment: to set (one of) the boundary of freedom of speech.
My opposition to IDT is partly because it cannot be scientifically verified. But the major reason is, why do people want to impose their belief, religious or not, on others?
Public school is a place where students have no choice of what the teachers teach on the required subjects. By teaching sceintific theories, students learn not only the theories themselves, but also (more importantly I think) the way science works: Observes, Hypothesizes, Verifies, then Modifies. IDT is incompatible with the logics because it contains an unverifiable variable–the “designer.”
Just a hypo, if it somehow has been verified that the “designer” is the one God that’s not the same one you believe in, would you still support IDT?
April 3, 2009 at 3:02 pm
Once again, I will emphasize, IDT is AGNOSTIC as to the identity of the designed, and thus in it’s pure form, cannot be conflated with some specific religion. Thus, the answer to you question is that I simply do not care who the designer is, therefore I will continually support IDT either way.
Which leads me to your first criticism – that we should not want to impose beliefs on others. However, this argument is inherently flawed. We “believe” that gravity exists, even though it cannot be scientifically explained. We still teach our children this. We “believe” that life started in Mesopotamia, and radiated outward, and we teach that to our children. We “believe” many things that are taught to our children which are not fully verifiable, but which are good explanations of our observations.
This is exactly what I propose IDT is. IDT explains situations which evolution, and any other current Darwinistic theories, cannot explain. Additionally, it does so in a way that need make no mention of religion, despite how hard it’s critics wish to make that parallel. If religion is being applied, except as an example of what might be a designer, then it is no longer ID, but some conflation of ID and creationism. This is not what I believe people like M. Behe, and myself, are advocating.
By your logic, evolution should not be taught in school because it cannot be “verified” – there is no missing link, there is no explanation of irreducibly complex genetic mutations, etc. However, it is one of the best explanations we have for what it explains. However, it does not explain everything.
April 4, 2009 at 6:20 am
Mr. Otto, your argument is quite consistent. I admire that.
Just let me be the “originalist” once in a while. Consider footnote 9 and 10:
http://en.wikipedia.org/wiki/Intelligent_design
In short it says, “Intelligent design’s leading proponents…believe the designer to be the God of Christianity.” So, your “puriest form of IDT” probably won’t survive an originalist’s test. Just kidding.
Second, I’m not a big fan of Darwin. Evolution may be flawed, ESPECIALLY regarding the origin of life. But that does not lead me to use IDT as a substitute, because to me IDT DOES NOT explain the origin of life, but instead find a easy way to avoid answering it scientifically. Let’s assume there IS such a intelligent designer. Now, isn’t that designer also a form of life [basic assumption is “designing capacity exists only in life form”, and computer is not a counterargument because human beings designed computer]? If you would concede to that, then IDT is itself a paradox because the designer him/herself cannot be his/her own designer. If you wouldn’t concede to that, then that’s a non-life form, a supernatural being, which in my own view, and probably most people’s as well, is an appeal to religion. (Or put it another way, who designed the designer? That’s even more logically chaotic.)
OK, my point is, science answers questions only to the extent the methodology provides verifiable results. Beyond that, anyone can form all kinds of hypothesis, ALONG WITH the methodology he/she proposes to verify it. If that cannot be done, then we simply tell the kids, “sorry, currently there is no convincing explanation as to the origin of life.” But we don’t come up with something we ourselves cannot explain and toss it to the kids.
It’s fine to attack Evolution on its flaws. Like I said, it’s the way of thinking rather than the material itself that science is about. I don’t even care if Evolution is thrown out of school’s science class. To me it’s just a “general” description of a scientific observation that withstands some degree of scrutiny, proposed in an age where there was no fancy biotech, DNA kind of stuffs. But I think the reason why it is important is, with more than 100 years of scientific advance, what scientists can provide now still generally conforms with Darwin’s theory.
By the way, you probably already know that scientists do try to simulate what Earth was like couple of billions of years ago, and see if they can reproduce even the simplest form of life. To date they can only “generate” amino acids, but not life. But I personally believe that it’s due to lack of resources to repeat all the physical conditions and the time frame (billions of years) during which even a billionth of possibility would be allowed to take place and accumulate. (sorry my English is not good enough to express that idea) I have to admit that, when I first learned the fact that all living creatures on earth, regardless of its species or sizes or whatever, rely on the same four molecules to carry on the genetic information kind of compels me to believe in god. But after deeper refelction, it is equally, if not more, possible that it proves that evolution is correct: all living organisms have the same origin, thus the concensus.
Back to the Constitutional context, I 100% support your right to believe whichever theory you find convincing to you, but that does not convince me to regard it as a science theory to be taught in public school. Someone may argue that, well, freedom of speech, teachers can teach whatever they want. But that is probably why the Establishment Clause is also there in the 1st amendment, as a stopper when it comes to the federal government. The fact that Bible was once the law and no longer is kind of shows the trend toward firmer interpretation of the Establishment Clause. I suspect that the Supreme Court will not change its position on this, even though it has 5 rather conservative Justices. (Of course, Mr. Carlson told me that one of the founding fathers, Madison, was an atheist and that IS why the Establishment Clause was there. I find it quite persuasive.)
April 5, 2009 at 11:30 pm
Such an interesting discussion, even if I probably disagree with everyone on this topic. I would like to summarize an interesting story that happened many centuries ago.
The established order latched onto a theory, which, based on empirical evidence and the tools of the time, appeared accurate. The theory was that the heavier an object is, the faster it would fall. A wise but disagreeable researcher examined the theory and said to himself, “this does not work and I think I can prove it”. The establishment did what most establishments do, and ordered him to stop telling others about his theory or else…
The person who proposed the original theory was the famed Aristotle, who was not a Christian by any means. The establishment was the Roman Catholic Church and the Inquisition, and the academic dissident was named Galileo. My, how times have changed.
Personally, I feel Intelligent Design is a terrible “theory”, but a perfectly valid scientific criticism, but in the commotion of whether evolution is “true” or not, people are missing what I feel are the most important points of the whole discussion. What is the purpose of public education and is it the court’s job ever to “weigh” the validity of a scientific theory? Would Galileo’s trial have had merit, if he was wrong and Aristotle was right? I’ll leave every person to answer that question for themselves.
April 21, 2009 at 11:28 pm
I’m glad to see someone other than the journal’s submissions committee actually read this article. Just one quick clarification:
“He argues that Intelligent Design Theory [IDT] should not have a place in science curricula because the theory is a religious concept that does not belong to the “hard sciences,” and thus is forbidden by the Establishment Clause.”
Actually, the paper makes a slightly different argument. The Constitution does not prohibit teaching non-science in a public school science class. So I’ll leave it to philosophers to debate whether religion does or does not belong to science. The relevant question for lawyers is whether religion may be taught in public schools at all and, if so, under what circumstances? In my paper, I argue that because of the way scientific concepts are presented to and received by students, teaching fundamentally religious ideas in the context of a science class would violate the Establishment Clause.