The prohibition against the establishment of religion applies to the states
through the Fourteenth Amendment. Modrovich v. Allegheny County, 385 F.3d 397, 400 (3d Cir. 2004); see also Wallace v. Jaffree, 472 U.S. 38, 49-50 (1985). The parties are in agreement that an applicable test in the case sub judice to ascertain whether the challenged ID Policy is unconstitutional under the First Amendment is that of Lemon v. Kurtzman, 403 U.S. 602 (1971), (hereinafter “the Lemon test”). See Edwards, 482 U.S. 578 (applying Lemon test to strike down
Louisiana’s “Creationism Act”); see also Epperson, 393 U.S. 97 (considering the purpose and the primary effect of an Arkansas statute forbidding the teaching of evolution in public schools). Defendants, however, object to using the endorsement test, first arguing that it applies only to religious-display cases and most recently asserting that it applies to limited Establishment Clause cases, including a policy or practice in question that involves: a facially religious display, an overtly religious group or organization using government facilities, the provision of public funding or government resources to overly religious groups engaged in religious activity, or the permission of an overtly religious practice.
After a searching review of Supreme Court and Third Circuit Court of
Appeals precedent, it is apparent to this Court that both the endorsement test and the Lemon test should be employed in this case to analyze the constitutionality of the ID Policy under the Establishment Clause, for the reasons that follow.
Since a majority of the Supreme Court first implemented the endorsement
test in County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Supreme Court and the Third Circuit have consistently applied the test to all types of
Establishment Clause cases, notably cases involving religion in public-school settings. In Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. 290 (2000), the Supreme Court applied the endorsement test to school-sponsored prayer at high school football games. In Santa Fe, the Supreme Court clearly defined the endorsement test by noting that “[i]n cases involving state participation in a religious activity, one of the relevant questions is ‘whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools.’” Id. at 308.The Supreme Court then provided a more concrete explanation of how the test functions in the public-school context, explaining that:
School sponsorship of a religious message is
impermissible because it sends the ancillary message to
members of the audience who are nonadherents ‘that they
are outsiders, not full members of the political
community, and an accompanying message to adherents
that they are insiders, favored members of the political
Id. at 309-10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). In Zelman v. Simmons-Harris, 536 U.S. 639, 652-53 (2002), the Supreme Court applied the endorsement test to a school-voucher program. In Good News Club v. Milford Cent. Sch., 533 U.S. 98, 118-19 (2001), the Supreme Court applied the test to a school district’s policy regarding a religious student club meeting on school property. In Mitchell v. Helms, 530 U.S. 793 (2000), and Agostini v. Felton, 521 U.S. 203 (1997), the Supreme Court applied the test to
programs providing governmental aid to parochial schools. In Rosenberger v. Rector & Visitors of the University of Virginia,
So the defendents wanted to attack Lemon v. Kurtzman...
But here's where the court got it right (that is, once they applied Lemon); and here's where I've been arguing against this nonsense for quite some time:
The court in McLean stated that creation science rested on a “contrived dualism” that recognized only two possible explanations for life, the scientific theory of evolution and biblical creationism, treated the two as mutually exclusive such that “one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution,” and accordingly viewed any critiques of evolution as evidence that necessarily supported biblical creationism. Id. at 1266. The court concluded that creation science “is simply not science” because it depends upon “supernatural intervention,” which cannot be explained by natural causes, or be proven through empirical investigation, and is therefore neither testable nor falsifiable.
And, to my delight, the court actually nails down this non-scientist Philip Johnson:
Phillip Johnson, considered to be the father of the IDM, developer of ID’sWell, maybe if they pack the Supreme Court with extremists this might not stand, but hopefully they'll filibuster Alito.
“Wedge Strategy,” which will be discussed below, and author of the 1991 book entitled Darwin on Trial, has written that “theistic realism” or “mere creation” are defining concepts of the IDM. This means “that God is objectively real as Creator and recorded in the biological evidence . . .” (Trial Tr. vol. 10, Forrest Test., 80-81, Oct. 5, 2005; P-328). In addition, Phillip Johnson states that the “Darwinian theory of evolution contradicts not just the Book of Genesis, but every word in the Bible from beginning to end.
Panda's Thumb has its take here.
"Conservative" "Christian" Joe Carter, recycling again, puts up a post that seems to attack "Intelligent" "Deisgn."
Ed Brayton's take is here.