Saturday, November 13, 2021

Frank S. Ravitch and Larry Catá Backer Discuss Creationism, Intelligent Design, and Evolution; Reading Edwards v. Aguillard 482 US 578 (1987) and Kitzmiller v. Dover Area Sch. Dist, 400 F.Supp.2d 707 (2005)

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Frank S. Ravitch and I have just published the 4th Edition to our casebook, Law and Religion: Cases and Materials (West Academic, 2021; ISBN 978-1-64708-764-7). The Preface nicely describes our aims for the book:

This book focuses on Law and Religion. The book covers three general topics: 1) Church/State Law (issues arising under the First Amendment to the United States Constitution and statutes such as the Religious Freedom Restoration Act); 2) Religious Law (the role and substance of law in various religious traditions); and 3) Comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, but the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as significant background on comparative Law and Religion. The discussion of First Amendment law integrates cases, questions and narrative to provide an in-depth understanding of the Religion Clauses of the United States Constitution.

Each topic in this book begins with a brief narrative discussion of the topic, followed by relevant cases and articles, and finally notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.

We have tried to add a comparative law element to the study of the jurisprudence of religious liberties in the United States by tying that study to the broader global conversations and currents in the development of legal frameworks for the protection of religious liberty. We hope all of this can be accomplished in ways that are useful for law students not just in the US (though US students are our principal audience) but elsewhere as well. 

To enrich the casebook materials Frank and I have started producing a series of video discussions of key cases from the jurisprudence. We hope students and faculty may find the discussions of some use as they consider the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.   These may be used by faculty and students to enrich their consideration of the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.  

We discuss the pedagogy of the casebook here: Frank S. Ravitch and Larry Catá Backer Talk Pedagogy and Approach as they Introduce the 4th Edition to their Casebook, Law and Religion: Cases and Materials (West Academic, 2021)

 To date we have videos discussing the following cases: 

1.  Fulton v. City of Philadelphia, 593 U.S. -- (2021)

2. Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947)

3. Engle v. Vitale, 370 US 421 (1962), and Sch Dist Abington Twnshp v. Schempp, 374 US 203 (1963).

4.  Lee v. Weisman, 505 U.S. 577 (1992).

5.  Student Initiated Prayer and Moment of Silence Cases (Santa Fe Independent School Dist. v. Doe, 530 US 290 (2000); Wallace v. Jaffree, 472 US 38 (1985)

For our next conversation we consider Establishment Clause limitations on curricular design with a specific focus on creationism, intelligent design, and evolution as subjects of public school education. The discussion centers on the germinal case, Edwards v. Aguillard, 482 US 578 (1987) in which the Supreme Court held that Louisiana's "Balanced Treatment for Creation Science and Evolution Science in Public School" legislation could not survive an Establishment Clause challenge. We probe deeper than the fairly straightforward analysis grounded in the then more vigorous Lemon test and the Endorsement analysis. We consider the nature of the dialogue between evolution and "creationism" as it touches on the way that the organization of knowledge in the West divides science and its methods (grounded din the observable and in the development of insights from what may be observed respecting its character, behavior, and perhaps predicting consequences) with religion and its higher order focus on causes and cosmology and the way that they may not intersect. In that context, then, the effort to merge science and religion becomes problematic at a basic level and the attempted insertion of religious cosmology within a descriptive and analytic approach t knowledge suggests a displacement rather than a dialogue. That cosmology and Origin theories might be separately taught from the study of the rationalization of the observable complicates the analysis further. Here the language of law and that of its object can find very little common ground. 
We then turn to the way that the recent Free Exercise Cases--Fulton v. City of Philadelphia (2021); Trinity Lutheran Church v. Comer (2017); and Espinoza v. Montana Dept of Revenue (2020)--may now change the focus of the Aguillard analysis in significant ways. We consider the possibility that where the teaching of evolution was the important problem under the Establish Clause in the 1980s, in the 2020s the issue may be whether the Free Exercise Clause now reinvigorates a right to avoid science entirely under emerging constitutional or statutory principles. The power of Free Exercise choice by individuals on the curriculum may be as powerful an influence over some of the pedagogy as Establishment Clause jurisprudence was on the power of the state to shape curriculum in the 20th century. We end with a consideration of the viability of Edwards going forward. But that leaves the fundamental absurdity--the effort to invoke notions of inclusion, toleration, and diversity--as the fetishes that are meant to accomplish the impossible, that is to alter the way that knowledge is organized, classified and rationalized in this culture. Each has its place, and neither ought to be used to displace the other. The Religion Clauses are inevitably invoked when this impossible amalgamation is attempted--then we move from pedagogy to the politics of knowledge. with respect to which the Religion Clauses now have much to say. And here the politics also has a constitutional dimension that is explored--the way that teaching cosmology itself implicates the neutrality principles of both Establishment and Free Exercise in cases such as these. In these cases one cosmology sourced in the teachings of one (powerful) religious group is privileged over those of other faith communities. Lack of neutrality may itself make for a more powerful endorsement argument; it may certainly increase the power of Free Exercise objections to exposing children of other faith traditions to its teaching.

The Video recording of  this conversation may be accessed HERE.

It is also available on the Coalition for Peace & Ethics YouTube Channel HERE.


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