The Creation Debate as co-created spectacle

There’s no question the the Creation Debate between Ken Ham and Bill Nye was a success – from the point of view of creating a spectacle event.  According to reports, the audience reached over half a million viewers at one point.  Whether it was equally successful intellectually, whether any new ideas, agreements, concessions, or reconciliations were reached—whether there was any real exchange of ideas at all is another matter entirely.  Most of the arguments that both men brought up were unoriginal, and many of the refutations they offered to the other’s perspective were either question begging, or simply mentioned and then ignored.  This shouldn’t surprise us.  we should really see this not as a debate between two individuals, but as a performance by two individuals for the purposes of a larger audience.  In that respect it is very similar to the creation of the spectacle during the 1925 Scopes trial (in which the legal question at hand – over the guilt or innocence of John Scopes, and later even the legal question of the law’s constitutionality) were left behind entirely.  In fact, observing the Creation debate as a co-created spectacle has helped me think more clearly about  some of my own research, contrasting the spectacular Scopes trial with the utterly obscure evolution trial that came a year earlier.



Tacit Consensus about Science and Religion

Seeing the Debate as a collaborative production of Ham and Nye can help make sense of some of the more confusing parts of last night’s debate.  Most important is the amount of tacit agreement between the two debaters.  I’m certainly not suggesting that Nye and Ham didn’t have some real points of difference, but they also agreed on the grounds of their disagreement and in so doing, created a strong impression of what the issues of creation are about.  When groups like the Discovery Institute and BioLogos both decried the debate, they did so because the presentation of Nye and Ham’s views as the two poles is dismissive of the distinct positions they each advocate.  More importantly, if forces advocates of Intelligent Design or Theistic Evolution (or any number of gradations of belief) to represent themselves as being somehow between these extremes.

This is something that happens frequently in science-religion discussions.  They’re arrayed on a spectrum, in which something like theistic evolution is portrayed as closer to atheism than religious antievolutionism, but also as less evolutionary than its atheistic cousin.  Some of the questions from the audience, and especially from the moderator conflated Intelligent Design with theistic evolution as if the ‘middle ground’ was all some unified position.  Even though Ham would claim that it’s not all of science, but evolution specifically that he opposes, this had the effect of setting up a science-religion dichotomy (with a quisling middle ground that compromises both its religious and its scientific values.)


The Debate and the Metadebate, 

On the face of it, the debate was over the question of whether or not creation was a ‘viable’ model of explanation of the origins of life.  But simultaneously, and perhaps more importantly, there was also a metadebate going on about the nature of creation as a kind of explanation, particularly if it counts as a form of science – or whether evolutionary science rest on foundational assumptions that can be seen as equivalently religious or ideological.

It seems that oftentimes, Nye took the debate at face value in a way that left the metadebate to Ham.  In effect, it feels like Nye may have won the scientific debate, but in failing to challenge the idea that this was a scientific debate, Ham gained the larger victory.

The metadebate matters in part because of legal rulings in the US about the teaching of evolution.  Th US Constitution prohibits the promotion of one religion above another, or the State acting to establish a religion.  There is no Constitutional mandate to promote science (despite Nye mentioning one in the debate – I’ll discuss this more fully in a later post.)  However, an effect of the 1983 McLean v Arkansas federal court ruling (upheld by the Supreme Court in 1987’s Edwards v Aguillard) one way of determining whether an ‘alternative’ to evolution is religious is evaluating whether or not it is science.  It was precisely for this reason that Judge John Jones III’s opinion in 2005’s Kitzmiller v Dover trial bothered to rule on the fact that intelligent design is not science.


The Metadebate and the Nature of Science

There is a real and historically longstanding difference between how Ham and Nye understand what science is.  Ham’s views were almost verbatim what some of his displayed in the Creation Museum says.  A trip through the museum begins with learning that “different scientists reach different conclusions because they have different starting assumptions.”  Ham emphasized this point early in the debate, claiming that there’s no difference in the available evidence from nature, the natural world doesn’t reveal itself in a different way to the creationist of the evolutionist, but that all scientists have operating assumptions that influence how they interpret evidence.  The act of interpretation is a human—and fallible—one.  (A point I will return to later on.)


"different scientists can reach very different conclusions, depending on their starting assumptions." From the Creation Museum's online virtual tour

“different scientists can reach very different conclusions, depending on their starting assumptions.” From the Creation Museum’s online virtual tour





For Ham there are two main possibilities for stating assumptions.  One is that God’s revealed Word (the Bible) is a source of certain and true knowledge, and teat investigations of teh natural world can confirm or extend that knowledge, but it cannot contradict it.  Revelation and Scripture has epistemic priority: it’s the thing we must know in order to make any other kind of knowledge possible.  The fact that the natural world shows itself in ways that we can study scientifically is made possible by the Creator God (note you don’t have to be a creationist to accept this last claim – it’s been a core tenant of natural theology for centuries.)

The alternative starting assumption is belief that human reason is the foundation of all knowledge.  By making human reason epistemically prior, the truth of Scripture, the ability to interpret it in ways we find satisfactory or logical, the ability to judge its credibility or authenticity are all dependent upon our ability to judge it in the light of human reason.  It’s the difference between these “starting assumptions” that leads one to creation science or evolution science.

What Ham does (brilliantly as a rhetorical strategy, I think) is that he initially presents this difference in starting assumptions as an epistemic difference, and only much later recasts it as a moral difference.  It’s not until later in the path through the museum (and later on in the debate) that Ham suggests that making all truths, religious and moral as well as scientific, conditional on the power of human reason leads to gross immorality and (in his view) the ‘fallen’ condition of humanity.  What was initially presented as a philosophical or personal choice is revealed to have moral consequences.  I’m not about to suggest that this argument is without logical flaw, but on a rhetorical level, it’s very well composed.

For Nye, as with other scientists, the rebuttal is that the ways in which nature is interpreted aren’t starting assumptions, they’re entangled with the process of collecting and observing data.  Scientists will readily except that there are sources of ideas outside science itself that inform the ways they interpret data, but (a point Nye failed to address) scientists and philosophers of science have long questioned the view that the aim of science is to confirm hypotheses that are generated from extra-scientific sources.  Nye was correct to say that the fundamental difference was over  “the nature of what you can prove to yourself,” but in part because of his naive views about theology, he didn’t fully understand what those differences were.


De-Nye-ing Theology

One of the most personally interesting (to me) parts of the debate came when Ken Ham was challenged to explain his literalism.  In fact it evoked almost exactly the famous Bryan-Darrow exchange during the Scopes trial.  But Nye (and the moderator in framing the question) conflated literalism with literal interpretation of scripture (almost exactly as Darrow did) Ham’s reply to this question started out fairly close to Bryan’s.  The literal truth of the Bible means that the text of the Bible was God-Inspired, that to the letters, the words, the authorship was divine in origin.  But this does not mean that the human act of interpretation is infallible.  Where Ham differed from Bryan however was in that the latter showed far more humility in Dayton Tennessee, more readily acknowledging that there were passages in the Bible that he accepted literally without knowing what they necessarily meant.  by the end of his answer, Ham seemed closer to defending Darrow’s version of Bryan’s literalism (as literal interpretation) than to Bryan’s own expressed views.

But Nye failed to capitalize on this position, in part because his understanding of theology was both logically and rhetorically flawed.  Nye relied on caricatures of religious arguments, imagining himself clever by pointing out that Noah’s ark was technologically improbable when the whole Flood was itself Divine action, or harping on the fact that there have been diverse translations of the Biblical text after Ham had already quoted a few specifics in Hebrew.  Nye’s failure to bother to understand the theological concepts that he was invoking and refuting made him appear religiously incredible.  It also made him appear to be dismissive, rather than engaging the theological questions raised by Ham’s view.

And there are some extraordinary theological presumptions and questions raised by Ham’s view.  As I blogged about a while ago, theologians have argued that the idea that ‘creation’ implied the sudden instance of something from nothing was an interpretation that came centuries into the Christian era, and that the Biblical ‘creation’ had better been understood as the formation of the world from eternal existing matter.


For those of us interested in the historical development of science and religion, the debate is an interesting phenomenon.  And it raises some very interesting questions about how public discussion of science religion functions, and what social groups engage in it.  Overall, I think this was an interesting event that will probably prompt a lot of discussion. But most of that discussion will accept the frame of the creation debate without challenging it.  For those interested in a more constructive dialogue of science and religion, this may do more harm than good.


Where’s the Economists’ Stephen Jay Gould?

The Apostolic Exhortation of Pope Francis: Evangelii Gaudium, is a remarkable document.  It’s by no means indicative of a radical shift in Church teachings, dogmas, or theology, but it displays an emphasis on those theological precepts to bear in a an imperfect world: “a Church which is bruised, hurting and dirty because it has been out on the streets, rather than a Church which is unhealthy from being confined and from clinging to its own security.” (parag. 49)

There has been a lot of reaction among the American political right wing over the Pope’s comments on economic justice in this speech.  Most famously: Rush Limbaugh called the Pope “Marxist” for “attack[ing] unfettered capitalism as ‘a new tyranny’.”  According to Limbaugh: “Unfettered capitalism?  That doesn’t exist anywhere.  Unfettered capitalism is a liberal socialist phrase to describe the United States.  Unfettered, unregulated.”  The Pope never actually used the phrase “unfettered capitalism” anywhere in his exhortation, so it’s not clear how Limbaugh’s effort to draw “Marxism” from that specific phrase has any merit.  The pope decried ideologies proclaiming the “absolute autonomy of the marketplace,” which “reject the right of states… to exercise any form of control.” But the Pope doesn’t say that unfettered capitalism does exist anywhere, only that there are those who are devoted to an idolatry of the marketplace that holds that as an ideal.

It’s possible that Limbaugh never read the Pope’s words directly, but only the account of them in other reports which did use the words “unfettered” and “unregulated.” There’s a history of papal statements being criticized for things they don’t actually say, but I’ll return to the history of misreading later on.

The Pope makes several statements about how the moral call of the church and its mission ought to focus on “the need to resolve the structural causes of poverty” (parag 202.) There’s is a quite substantial discourse about the way that social policies and political concern for the long term can bring about a greater expression of human dignity.  But in addition to making normative statements about how political economic and social change should be improved, the Pope also makes statements concerning the validity of economic theories.

…some people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naïve trust in the goodness of those wielding economic power and in the sacralized workings of the prevailing economic system (parag. 54)

Critics of the Pope, like Limbaugh, have effectively treated this statement as an incorrect ethical pronouncement, an assertion of moral order that they either find wrong or inconsistent with other moral teachings of the Church.  Some have found it hypocritical given the Church’s wealth.

But this isn’t actually an ethical claim, but a scientific one.  The statement of whether or not ‘trickle down theories’ are actually valid descriptions of economic cause and effect in the world is ostensibly a testable theory.  The Pope is not saying that trickle down economics must not be practiced because it is inherently unethical.  He is saying that those who would try to bring about justice and inclusiveness through the practice of trickle down economic policies should be aware that the theory has never been empirically confirmed, and may be scientifically (not morally) wrong.

In the past, people on the American political left, including many who welcomed this particular papal statement, have been particularly wary about Church pronouncements on science.  Perhaps the most famous example of this is Stephen Jay Gould who introduced the term “Non-Overlapping Magisteria” specifically to discuss the proper (as he saw it) demarcation between science and religion.  It is proper for religion to proclaim ethical judgements, to tell us what is good and evil, and to tell us what aims we might achieve; but wrong for religion to pass judgement on an empirical theory.

I think it’s fair to say that Gould’s NOMA has never been an accurate description of the way science and religion actually relate, but Gould’s essay ought to be seen as a prescription for a a resolution to science-religion conflict.  (It might not be a good one, but that’s a separate matter.)  Regardless, Gould’s framing of NOMA has been quite influential, with plenty of scientists, particularly, citing it as a way to keep religion and science apart, even when there are questions of bioethics or ethics of technology that might reasonably need to cross that boundary.  It has some similarities with older ideas of church-state separation.

Perhaps Gould has been too successful.  Readers of the Pope’s statement seem to have presumed that he was making an ethical statement, perhaps because of his identity as the head of the Catholic Church and because the Apostolic Exhortation is an ethical and religious document.  And perhaps because people believe that the Pope ought to be making religious statements, they interpret his statements on economics as normative.  It’s surprising to me that no one has made the criticism that the Pope has no business making statements about whether a scientific theory is true with respect to this claim about trickle down theory.

This has not been the case in the past: In 1951, Pope Pius XII, speaking to the Pontifical Academy of Sciences, addressed the question of how Aquinas’s “Five Ways” of demonstrating the existence of God from Nature fared in light of recent discoveries in 20th century science.  This statement was widely misinterpreted (partly though mistranslations, partly because of the selective republication of excerpts) as the Pope “endorsing” the Big Bang (This misinterpretation persists.)  In that event, Pius was criticized by cosmologists on both sides of the Steady-State/Big Bang debate, who effectively claimed that he had no business speaking on the issue.  Gould’s essay was directly prompted by Pope John Paul II’s effective acceptance of biological evolution as the scientifically accepted account for the origin of the human physical form (though not the human soul.)

It would seem like the Pope could be criticized for making a definitive pronouncement on the state of a scientific theory of economics.  One could raise a NOMA-like objection to the papal pronouncement that trickle down economics is a theory that is unconfirmed by facts.  But the question remains as to who would make such a complaint?  It’s a trap there for the American political right—people like Limbaugh, because they can’t embrace NOMA for economic sciences and then reject it for other science-religion issues like climate change and evolution.  But there have been plenty of anti-religious scientists who scoff at the thought that the church has any place acknowledging science, even when it’s a position they agree with.  Gould related that some of his evolutionist colleagues had that mindset in response to John Paul II in 1996.  Will any economists who agree with the Pope’s economic conclusions still object that it’s not his place to make them?

Boris’s New Reasons for Contentment – Addressed to the Labouring Part of the British Public

Whilst I was back in America (marking a holiday ostensibly commemorating the success of some dissident English people who were quite happy to be quit of that country) I discover that the Mayor of London – Boris Johnson, has stirred up many of my colleagues with a speech remarkable as much for its rhetorical bluster as it is for its deification of the late Prime Minister Margaret Thatcher.  I don’t really pretend to understand current British politics at all, and my sense of Boris Johnson prior to this was that he was this bizarre advocate of bicycles who also blamed their riders for their inability to survive lorry strikes.  Perhaps giving people the means to kill themselves in the name of economic development is actually a Conservative thing in this era.  I don’t really know.

But it’s Johnson’s invocation of history, as well as science and religion, that has me more knowledgeably confused.  In particular I’m left wondering how he did on his own history A-levels (the exam which he so castigates) given his fond reminiscence for some gloried era of 1750-1865, when “we” as he puts it, “were by far the most politically and economically powerful country on earth.” While Johnson presumed to channel the dead and tell us what Thatcher would do if she were with us right now, I want to summon up a similar spirit from the vasty deep, taken from the midst of Johnson’s imagined golden age.

In 1792, William Paley (already well known for his book on Moral and Political Philosophy, and not yet the author of the Natural Theology) penned an essay whose very title is extraordinary: “Reasons for Contentment – Addressed to the Labouring Part of the British Public.”  This was published widely in pamphlet form by the Association for Preserving Liberty and Property against Republicans and Levellers, and Paley takes a rather conservative position (somewhat to the right of Burke’s reflections on the French Revolution)

The entire pamphlet is a rich feast for those whose preferences run to the shocking one-liner (perhaps we shall see the Mayor borrow from it in the future).  But I am personally partial to Paley’s affirmation:

 I (God knows) could not get my livelihood by labour, nor would the labourer find any solace or enjoyment in my studies.

Although Johnson seems to think that Britannia of this era was great economic power, that economic strength was certainly not felt by many people who lived in it.  At the very least, there was widespread discontentment.  The working classes who were drawing inspiration from the French Revolution, or from local movements against exploitive labour, or the nascent societies against British slavery (though Paley was also an outspoken abolitionist) give a pretty good indication that in imagining this to be an era of great economic success, a lot of people don’t count as part of Boris Johnson’s “we.”

Paley goes on to explain that there are great benefits to being of the labouring (or poor) class.  Benefits which the rich men of leisure can never understand:

Another article, which the poor are apt to envy in the rich, is their ease. Now here they mistake the matter totally. They call inaction ease, whereas nothing is farther from it. Rest is ease. That is true. But no man can rest who has not worked. Rest is the cessation of labour. It cannot therefore be enjoyed, or even tasted, except by those who have known fatigue.

There are a few presuppositions and arguments put forward in this, some of which find clearer expression in Paley’s other writings.  One is that people have natural inclinations towards certain types of labour pursuits, or to certain roles in society.  Those natural inclinations give each of us an indication of the type of occupation that we are suited to.  Paley, like many who understood the sciences of the human mind and of heredity of his day, presumed that there was an inherited component to this – that it made sense why those who had been artisans or farmers had offspring naturally suited towards those same occupations.  Johnson seems to echo this wholeheartedly in his claims about IQ and natural inequality.

The reason for this, and the reason that labourers should find contentment is Divine Providence (in particular that aspect of Divine Goodness which the Natural Theology also promises)

But Providence, which foresaw, which appointed, indeed, the necessity to which human affairs are subjected (and against which it were impious to complain), hath contrived that, whilst fortunes are only for a few, the rest of mankind may be happy without them.

People have natural inclinations towards different occupations.  These are largely hereditary, but they are also well-proportioned, so that society as a whole has the right ratio of artisans to famers to labourers to scholars to aristocrats.  Through a diverse society made up of people following their god-given inclinations, the society as a whole can best function and ensure the greatest amount of happiness for the people.

This is where the most controversial of Paley’s theological positions, his “utilitarianism” comes in.  A well functioning society produces the greatest joy and happiness for its consitutents.  It is for that reason that divine providence has made it possible for “the rest of mankind [to] be happy without” great fortunes.  One of the central arguments of the Natural Theology is to show that this principle of maximizing happiness occurs in nature.  (In fact it’s on exactly this point that Darwin draws from Paley in the Origin of the Species.)

But Paley’s notion of happiness or of utility is a religious one that marks him as a different kind of utilitarian than Bentham or those who use the doctrine to justify an unrestrained free market.  Ultimately, a divinely ordered society isn’t meant to bring about the most wealth or economic growth but the is supposed to bring about an ethical one, and one in which eternal happiness is also shared in greatest measure

It’s because of this religious vision of utility that Paley’s reasons for contentment don’t ring wholly disingenuous.  Although people might be suited to different social roles, Paley does not find any sense that wealth or leisure is an indication of moral value

…some of the necessities which poverty (if the condition of the labouring part of mankind must be so called) imposes, are not hardships but pleasures. Frugality itself is a pleasure. It is an exercise of attention and contrivance, which, whenever it is successful, produces satisfaction.

Here is where we begin to see a breakdown of the similarities between Paley and Johnson, and perhaps an interesting criticism of Johnson’s gospel of greed.  The idea that society functions better because of natural inequality is actually rooted in a overarching notion of divine providence (which is evidenced by both religion and by nature) and it is only able to work through the valorization of frugality and charity as means to an end.  This is summed up by Paley in his Moral and Political Philosophy in the claim 

that the condition most favourable to population is that of a laborious, frugal people ministering to the demands of an opulent, luxurious nation; because this situation, whilst it leaves them every advantage of luxury, exempts them from the evils which naturally accompany its admission into any country.

It is the role of other elements of society to give the labourers reasons for contentment, not just platitudes.  A society that treat natural differences as a basis for a non-egalitarian society can only function (and should only function) if it is done in a basis of strong personal ethics.  The strength of the British system for Paley, at the height of the period that Johnson seems to find most exemplary, is because of the cultivation of a personal virtue of frugality, not greed.

Whether or not Paley’s individually frugal but nationally luxurious society is sustainable (and divinely providential) is precisely what Thomas Malthus took issue with.  Malthus’s Essay on the Principle of Population states that it’s unrealistic for a society to function in a way in which mere frugality can stave off population distress inevitably.  However, in a footnote to the second edition of the essay (published after the Natural Theology) Malthus states that by 1802 Paley has come around to the idea that distress to some extent is inevitable.  And that this idea of divine providence leading to a fruitful and successful society can only work if the “spread of luxury” is minimized.  Even in the Moral and Political Philosophy, Paley had recognized that the society that the society that grows from the results of the laboring poor had an obligation to provide for their sustenance.  This is almost exactly the opposite of what Johnson advocates in his valorization of wage gaps.  Though Paley is by no means a revolutionary, his conservatism looks like a form of religious progressivism from the vantage of the 21st century.

Johnson’s present day claims of natural inequalities being good for society have their roots in the historical glorious era from 1750-1865 (leaving aside exactly from whom it was ever glorious) but the invocation of such a claim to valorize personal greed or advocate an abolition of the state’s responsibilities for the welfare of its people is a confusion of the highest order.

Antievolution and Statewide Textbook Adoption: Louisiana comes full circle.

Prompted by Zack Kopplin’s excellent column in the Guardian last week, I became aware of Louisiana’s House Bill 116.   If enacted, the bill would devolve the authority to adopt and select textbooks from state-level control to the authority of local schools and school boards.  In effect this would end statewide textbook adoption in Louisiana.

Kopplin has been one of the main advocates for the repeal of the 2008 Louisiana Science Education Act, which was intended to open the door to the teaching of creation science objections to evolution.  And he rightly points out that although the bill mentions neither science nor biology explicitly, the purpose of the bill is pretty clearly to enable local educators to chose antievolutionary texts when the state’s school board has not adopted anything suitable.  In effect, this law (in conduction with the LSEA) would allow small school district antievolutionists the ability to use the texts of their own choosing without running afoul of the state law.  (This is still presuming that a school district is able to afford the risk of a lawsuit, which I wrote about in a previous post)

What I find fascinating about this legal tactic introduced by State Representative Frank Hoffman is how much it almost exactly reverses what happened in the 1920s school antievolution  movement.  And just like the 1920s era textbook-related legislation had some very unintended consequences, it seems likely that this bill will do the same if it becomes law.

What many people tend to forget is that state-level regulation of textbooks largely came about for reasons having little or nothing to do with interference with school content.  The reason why many states especially in the South took control over textbook adoption away from local school districts was a concern that local boards were subject to corruption.  There are a variety of stories of textbook salesmen arranging kickback schemes with local school board members, salesmen threatening to support an opposing candidate in an upcoming election, and even instances of outright bribery.  The rationale was that a single 5-year adoption before a state board would be less susceptible to corruption, and would prevent the costs of schoolbooks from escalating.

What’s most interesting is the way that textbook publishers reacted.  At last initially, most of them lobbied hard against state-level regulation.  Partly that was because the people doing the lobbying were the salesmen working for the textbook companies, who thought that their own jobs could be at risk if there were fewer adoptions.  Even though a statewide adoption (and the expansion of compulsory schools) potentially meant more textbooks sold by a publisher, the way that many of the companies were set up encouraged resistance to state level adoption.  (If you’re interested in more of this story, read Chapter two of Trying Biology.)

But it was the fact that schoolbooks were adopted at a statewide level that gave more voice to antievolutionism as a school movement.  When, for example, Tennessee adopted George Hunter’s Civic Biology in 1919, the book was seen as more appropriate for urban centers like Memphis, Nashville, and Chattanooga, but its emphasis on the urban applications of biology were not so suitable for more rural and agricultural areas of the state.  The 1925 Scopes trial was in part made possible by the fact that Tennessee operated under statewide control of textbooks.

So in the 1920s, an unintended effect of state-level adoption was the creation of greater support for a school antievolution movement.  In the 2010s, an effort to give more power to antievolutionists by undermining state-level adoption could also have some unforeseen effects.

I don’t think it’s likely that we’re going to go back to the day of the corrupt textbook salesman that pervaded from the 1870s-1920s.  The textbook industry doesn’t have the same clout that it did a century ago, textbooks themselves aren’t as central to classroom practice as they once were.  But it was never only the textbook salesmen who were corrupt; it was also the members of local school boards who took bribes, arranged cozy kickback relationships, and in general abused their position for self gain.  It’s not hard to imagine this coming back with a vengeance if the proposed law passes.  This bill opens the door for a school board to use public funds to purchase textbooks that have not been vetted by experts, but may be written or published by someone with a connection to members of the school board.  Perhaps a school district wants to adopt a supplemental history book written by a brother of a school board member, or a creation science text that was self published by a local church.

It doesn’t seem like Representative Hoffman’s bill has made any provision to replace the anticorruption protections that statewide adoption ensures.  Perhaps one of the most interesting clauses in this bill is the one that changes the way texts are discarded.  Existing law requires that the state board approve of which books a school discards and sells to private individuals and that the board must approve of how those funds are used.  The proposed law would allow local schools to seem any books that they want to as “no longer in use” sell them at whatever price they want to whomever they want, and to sue the funds in any way that they see fit.  The new law would also allow public school boards to allocate funds, books, and other instructional materialist non public school students without any documentation.  This seems like a textbook case (so to speak) of enabling corruption.

Kopplin’s column is excellent, and he explains the real impact of this pending bill on the ongoing fight over the teaching of evolution in Louisiana.  But looking back to the longer history of textbook regulation and its relation to antievolutionism suggests that there’s an even bigger concern.  And perhaps there’s an even bigger reason to be wary of House Bill 116 then the fact that it further enables antievolutionists.

Muldrow and the costs of religion in schools

Last Monday the school district of Muldrow, Oklahoma voted to remove plaques with the ten commandments inscribed on them from the walls of its schools. This happened in response to a letter the Muldrow Superintendent received from the Freedom from Religion Foundation which threatened to sue the school district on behalf of a student who had contacted them.  Legally speaking this is not that interesting a case, but it seems to be part of a larger trend where the fear of lawsuits is determining the way that small school districts behave.  And that trend is itself an interesting development in the way religion-education issues are negotiated in the United States.

Despite the fact that locally the decision in Muldrow was met with protest, this was a pretty clear cut case of the school district running afoul of the laws and court precedents regarding an establishment of religion.  But this is the kind of breach that seems to happen frequently unless there’s an effort to enforce constitutional rulings.  It’s similar when the religion-in-schools issue involves the teaching of evolution.  Recent studies that have shown that despite various court rulings on the teaching of creationism, creation science, or intelligent design, many biology teachers do teach antievolutionary positions either either exclusively or in “balance” with evolution.  Legally speaking, it was never constitutional for Muldrow to have these plaques up, but it’s only when they were noticed by people willing to take them to court that the issue came up.  What’s interesting is that some of people the people protesting their removal pointed to the fact that they’d been up for so long as evidence of their acceptability.

But the Muldrow school board did not vote to remove the ten commandment plaques because they were legally required to do so, or even because they thought that they were wrong to have them.  Rather, they did it because they could not risk losing a lawsuit.  It wasn’t the lawsuit itself, but the potential expense, and the risk of losing liability insurance, that determined the outcome.

This was perhaps the real legacy of the 2005 Pennsylvania “Intelligent Design” trial Kitzmiller et al v Dover Area School District.  In that case, the Dover school board had instituted a policy requiring the reading of a statement about intelligent design.  Parents of some students sued and the court ruled that the board had acted in violation of the establishment clause and that intelligent design could not be taught in a science class.

But perhaps more importantly, as the losing party in a civil lawsuit, the school district was responsible for the plaintiffs’ legal expenses.  Even though the school district’s own legal defense was provided pro boon by the Thomas More Law Center, the Dover School Board  (whose membership had been replaced in a November 2005 election with people who opposed the teaching of ID) was responsible for over one million dollars in the plaintiffs’ legal expenses (a bill that could have been much higher.)

From the point of view of small town school districts, this was a more important consequence of the Dover trial than the fact that they couldn’t teach intelligent design.  Go to court and risk potential bankruptcy.  More importantly: adopt legally questionable policies and risk losing liability insurance.

That’s just what happened just a few months after Dover.  In the El Tejon school district in California, a schoolteacher proposed to teach a philosophy elective about intelligent design, and a parent of a student at the school sued that teaching the course would amount to advocating religion.  Rather than the case (Hurst v Newman) going to trial, the case was settled out of court with the school district agreeing not to run the course.

In Hurst v Newman, there were a lot of specific circumstances (such as the proposed syllabus for the “philosophy of design” class) that made that specific case an almost certain loss for the school district.  But the general legal question as to whether discussion of intelligent design could be taught in a philosophy or social studies class (and if so, how) was not answered by Kitzmiller, and is still widely contested in law journals and in public debate.

But part of the reason that Hurst v Newman did not go to trial was the fact that the El Tejon school district could have faced “projected legal costs of $100,000” (according to a 2006 article in Science)  El Tejon’s professional liability insurance is part of their insurance through a policy held with a group of several California school districts, called SISC.  According to the SISC description of coverage: While SISC affords coverage considered broad and inclusive of exposures typically faced by our member districts, SISC cannot afford coverage for damages resulting from willful or intentional acts or intentional acts or omissions for which insurance coverage would be precluded under [California] Insurance Code Section 533.

Note, I’m not sure if El Tejon’s professional liability insurance was the same in 2006 as it is now, but even if it is somewhat different, the issue is that it’s not just the possibility of a legal bill of $100K (which, given the costs in Dover, seems low anyway) that was a motivation to settle the lawsuit.  It’s the possibility that the school district could have its liability insurance policy dropped, or that its premiums would increase, or even the fact that the other school districts and country officials responsible for the group insurance don’t want to see their insurance costs increased because a single school district made a decision that was more likely to risk lawsuits.

El Tejon might have had a case that a “philosophy of design” course was constitutional (although the specific version of the course proposed was highly problematic.)  But the arguments could’t even be given a legal hearing because of the issues of expense, risk, and insurance.

For the past several years, I’ve taught a history of religion and science summer class.  In it I have had students stage a mock trial of Hurst v Newman, based on some of the affidavits and materials that were filed in the case. (Some of these documents are on the NCSE’s website).  In class, I judge the outcome of the mock trial based on which of the legal arguments the students make (given our previous study of the Dover trial, Scopes, McLean v Arkansas and other foundational cases) and it has been quite a successful classroom project.  Most interestingly, both sides of the case have won the trial at least twice, not because either side was ultimately right, but because one side made better arguments or better responded to the arguments made by their opponents.

It seems like some of the same financial/legal/insurability pressures motivated the decision in Muldrow.  And while I agree that the ten commandments posting in public schools was clearly unconstitutional, it worries me that these kinds of decisions are not being debated by school districts or citizens in terms of what’s right or wrong, nor are they being settled by courts guided by law and precedent.  Effectively these decisions are being made by the structure of liability insurance, and fear of bankruptcy.

People who might applaud the fact that intelligent design lost in California for this reason might reflect that this tactic can cut both ways.  School districts have a pretty strong incentive not to risk back up a teacher whose decisions might be perceived as risky or controversial, even if the law is on the teacher’s side.  Even going to court could be seen as risking a school’s insurance policy.

One of the most important differences between education in the US and in many other countries is the extent of local autonomy a single small district can have.  But that’s being changed by the push towards common standards on one hand, and a structure of legal expense that prevents major action by a district who has to worry about money and insurance.

Part of what that means is that if there’s going to be another major trial over the establishment clause in schools (like Kitzmiller, El Tejon, or what could have been in Muldrow) it’s more likely to be launched by a state body, not a small town school district.  If a state’s attorney general is politically motivated to challenge a law, they may not be impeded by concern over legal expenses.  It’s the financial precedent from Dover, not the legal one, that’s had the bigger consequences.

Science and Antidisestablishmentarianism

If you want to support religion, the worst possible thing you can do is let the government run it.

It’s more than a little ironic, therefore, that a political religious movement that typically decries the role of government helped introduce a bill in North Carolina that declared that the state had the right to establish a state religion (though the bill wouldn’t actually establish one.)  The religious right has turned to antidisestablishmentarianism, rejection of the notion that the state must not have an establishment of religion.

Despite the constitutional exegesis in the bill itself, it is manifestly unconstitutional—ignoring the Fourteenth Amendment to the Constitution, which effectively amended the Tenth by restricting the right of states over individual citizens.  In 1947, the Supreme Court recognized that the Fourteenth Amendment prohibited states from enacting laws that effectively caused an establishment of religion.

This week comes the news that the bill won’t receive further consideration, and so stands little chance of becoming law.  But the bill’s very introduction suggests that something very strange has evolved in the ongoing relationship between religion and the state.  In both the short and the long term, that relationship has had a very complex interaction with science.

It’s easy to see the short term impact of such a bill with respect to science.  By removing the requirement that laws need not to favor religion, state efforts to prohibit the teaching of evolution and climate science (for example) will be free of the judicial requirement that alternatives pass as “science”  Put another way, critiques of evolution such as creation science and intelligent design, which the courts have ruled are not scientific, would no longer have to ignore the religious aspects of their research programs in order to try to pass as science.

But it’s the longer term history of science, religion, and the state that sheds the most light on the question of religious establishment.  In Britain and its colonies in the century or so leading up to American independence, forced conformity to the doctrines of an official state church kept many people from attendance at universities, election to public office, and many other positions of responsibility, prestige and fortune.  Even though the North Carolina bill wouldn’t have singled out a particular denomination, it would have excluded atheists, and many other people whose particular religious beliefs would have conflicted with the interpretations of religion that might have been established.

The authors of the U.S. Constitution were parties to a long debate over religious toleration.  In the years leading to the Bill of Rights, the most important voices for toleration were not opponents of religion.  They saw themselves as defenders of true religion.  They argued that the state should not require oaths invoking God because it only tempts people to swear false oaths, putting their souls at risk.

Their reasoning was impeccable. If you offer an incentive— a job, education, social advancement—to someone for swearing an oath, mostly you get people swearing false oaths.  For members of the Church of England who argued for Toleration (such as Archbishop Edmund Law and Archdeacon William Paley) this was worse than having the wrong belief.  It was perjury. Taking the Lord’s name in vain. It could condemn your soul.

It was better, they argued, that oaths never be required.  If someone simply believed wrongly, then in time they could be converted and saved, but if they perjured themselves, they were already lost.  Paley and Law believed that their religion was right, but state power was the wrong way to win people to God’s side.

Today, religious toleration and American disestablishment are justified by appeals to pluralism, the view that no belief should be considered exclusively right or holds enough political clout to enforce their beliefs.  But this has made people wary of religious toleration when they know their own religion is true.  Toleration’s original supporters were not pluralists, but they might be strategically wiser (or more committed to a disestablishment principle) than those who would enlist the government to spare themselves the hard work of saving souls.

Where does science fit into this? Instead of converting people by threatening them or incentivizing them, advocates of toleration basically said that since their religion was right, their arguments ought to appeal to anyone who was open minded and could understand evidence and logic.  They therefore began with arguments that took very little for granted.  In the case of Paley, this is why he begins with looking at natural theology, because everyone can look at nature, and can be persuaded by rational argument from it.  It’s only later on that Paley argues for the reliability of Scripture as evidence, because not everyone would be willing to take that for granted.

Though it’s anachronistic to call this a “scientific method,” the arguments put forward by the writers who helped inspire the Establishment clause effectively said that religious reasoning ought to draw first from objective knowledge found in nature—knowledge that could appeal to everyone.  In effect, antidisestablishmentarianism isn’t just anti-science in a trivial or short term way (like making it easier to ban evolution.) It’s anti-science in a fundamental way, by claiming that objectivity, and empiricism have no better claim to knowledge than affirmed truths.

This history of religious toleration, and its intertwinement with the development of science in Europe in the modern era, also suggests that there may be deeper linkages between a separation model of the relationship between science and religion (in a manner such as Stephen Jay Gould proposed) and the idea of separating church and state.