I commend to our readers Casey Luskin’s excellent If Evolution Has Implications for Religion, Can We Justify Teaching It in Public Schools? Mr. Luskin answers his question as follows:
one can legally justify teaching evolution while being sensitive to the fact that it has larger implications that touch upon the religious beliefs of many Americans. This reasoning offers the best of both worlds. It allows science to be taught in the science classroom while respecting the beliefs of people who have religious objections to evolution. Many evolutionists, however, would probably dislike this way of thinking. Why? Because the very same approach would justify teaching about intelligent design in public schools.
Casey is obviously correct as a matter of simple logic and fairness. Sadly, however, simple logic and fairness are secondary considerations when it comes to the Supreme Court’s Establishment Clause jurisprudence. Over 25 years of practice in constitutional law has led me to the conclusion that the so-called “Lemon test” Casey discusses in his post is not “law” in the sense of a pre-established rule to guide conduct. Rather, it is a platform from which judges impose their preferred outcomes in particular cases. In almost every case a judge can reason from Lemon to diametrically opposed outcomes with equal alacrity. And because most federal judges are members of the secular chattering class, as a practical matter Lemon’s almost limitless interpretive flexibility means that cases are decided in a way consonant with secular sensibilities.