Yesterday, the 11th Circuit Court of Appeals heard oral arguments in a case dealing with high school biology textbooks in Cobb County, a diverse and prosperous suburban Atlanta county. You can read the district judge’s opinion here, and a useful background article here. This site has all the amicus briefs opposing the stickers affixed to the textbooks and asking the Appeals Court to uphold the district judge’s ruling. This site has links to most of the briefs arguing in favor of the stickers (except for this one), along with a number of other resources.
Having just read the district judge’s opinion, I think that he overreached in a number of ways. Here’s what the sticker says:
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.
This is the supposed endorsement of religion that sends a message to non-religious folks that they are outsiders and those who oppose evolution are insiders. The "endorsement" language comes from Sandra Day O’Connor’s concurring opinion in Lynch v. Donnelly, the baneful effects of which I have discussed here and here. Indeed, Judge Clarence Cooper, a Clinton appointee, goes so far as to claim that there’s an analogy between the nativity scene cases (the context of O’Connor’s suggestion) and this textbook case. As he sees it, the relevant context is that the parents who sought the sticker language were motivated by their religious concerns; the fact that the Cobb County School Board adopted their language (evolution is a theory, not a fact) suffices to convey an endorsement of their position, including the religious views not at all evident in the sticker’s words themselves. Wow!
If Judge Cooper had his way, people moved by religious concerns would be stuck in the following catch-22. If they use secular language, as they did in this case, that language would be tarnished by its ultimate religious provenance. If, using the secular language, they prevail in the political contest, they still lose, because their victory leads the government to endorse religion, sending a message to the losers that they are outsiders, which violates the First Amendment, as glossed by Sandra Day O’Connor and her supporters.
It doesn’t matter that the religious parents here are acting defensively, leaving a question open, and asking for very little in the face of a biology curriculum in which evolution will be a primary subject of discussion. It doesn’t matter that they’re not asking for equal time for any competing "theory." Their views, offered in perfectly secular language, are out of bounds; they can’t be permitted to win in the political arena; the school board can’t be permitted to accommodate their concerns.
According to Judge Cooper, the religious parents are the outsiders, and there’s nothing they can do to win a place in the debate. Those who argue that religious people should regard themselves as "resident aliens" might welcome such a result, as would those committed secularists who are ultimately hostile to the public influence of religion (unless, of course, it conforms to the positions they hold). But it doesn’t appear to be either a neutral or an accommodationist position. By Judge Cooper’s lights, the Constitution seems to require hostility to religion. This is not to say, I hasten to add, that Judge Cooper himself is anti-religious. He may not have fully thought through the implications of his position. I’m just glad that the judges on the 11th Circuit panel appear to be sceptical.
Update: More criticism of the District Judges opinion