Michael Stokes Paulsen, a learned professor at the University of Minnesota, is a connoisseur of legal atrocities. In a recent article in the Notre Dame Law Review, he tries to award the palm for “The Worst Constitutional Decision of All Time,” while he teaches a course on “Atrocious Cases.” In the spirit of Dr. Paulsen’s work, I would like to suggest some candidates for his consideration. I will resist proposing decisions that are merely incompetent, incoherent, or plain stupid. In order to achieve the full status of legal atrocity, a case must have social or legal implications that are wide, potentially devastating, and downright frightening.
And I already have a fine candidate. This January, the U.S. District Court for the Northern District of Georgia ordered the Cobb County school district to remove stickers it had placed in biology texts that made the following statement:
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 decision was received along predictable political and cultural lines, with social conservatives generally denouncing it, and liberals and secularists praising the court’s decisive reassertion of evolution in science education.
As described so far, the federal-court decision falls far short of atrocious status. One might well agree with the court in rejecting the slanted use of the term “theory” by Cobb County authorities. In popular speech, “a theory” might be another way of saying that it is “just your opinion,” which is neither worse nor better than anyone else’s. That is not what scientists mean when they speak of evolution. For the overwhelming majority of scientists, species changed and evolved over many millions of years, and the fact of change is thoroughly documented in the fossil record. Even the old challenge about “So where are the missing links?” has been effectively answered by the well-studied sequence of fossils showing the biological changes over time that gave rise to modern whales. In this sense, evolution is a fact, though one is perfectly at liberty to theorize about the mechanisms involved in the process, and the role of divine guidance or intervention. Darwinism is one theory that, in its pristine form, is not widely held today; but the reality of species change over long eons is very widely held as sober fact. To use an analogy, gravity is a fact, but the means of explaining it are theories, and explanations that seem to work today may well seem jejune in 10 or 20 years.
But whether or not one believes in evolution, the federal-court decision in the Cobb County case was still an atrocity. To understand why, just look again at the exact wording of the textbook stickers, and try to find references to God, religion, Creation, the supernatural, or the Nicene Creed. Then read the statement of Judge Clarence Cooper, who complained that,
By denigrating evolution, the school board appears to be endorsing the well-known prevailing alternative theory, creationism or variations thereof, even though the sticker does not specifically reference any alternative theories . . . Rather, the distinction of evolution as a theory rather than a fact is the distinction that religiously motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement. . . . By adopting this specific language, . . . the Cobb County School Board appears to have sided with these religiously motivated individuals.
Therefore, the stickers constituted an unconstitutional endorsement of religion in the public schools.
If I may translate the Northern District decision: The Cobb County stickers say nothing whatever about religion, and, in fact, they explicitly advocate critical and open-minded approaches of the kind preached by secular-leaning scientists over the past few centuries. Nevertheless, they “appear to” express views of the sort that, in the court’s view, are commonly associated with religion. And what are the criteria for “appearing to endorse” religious principles? Since none are given, the answer must be: I, the judge, know how you religious people talk, and this sounds to me like it fits into the familiar pattern. In other words, these are very much the same criteria that, back in the 1920’s, were used to convict people for seditious or syndicalist speech, on the grounds that they used words that, to a judge’s tender nose, reeked of anarchistic intent. Also echoing the old syndicalist prosecutions is the idea of guilt by association. If you say something of the sort that anarchists were saying, then you must belong to their ranks.
Let us build on those principles a little. What other ideas or opinions might be expressed in schools that historically are clearly associated with religious principles or founded in religious activism? Human equality is one obvious candidate. So is racial equality, as preached through the century by a variety of impassioned religious extremists, mainly Christian, from William Lloyd Garrison through Martin Luther King, Jr.
To take a more contemporary issue coming before the courts, abortion will long continue to be one of the most sensitive and divisive matters facing Americans. Though many opponents of abortion work from religious principles, that is by no means universally true, and there are many secular-minded pro-lifers. Fortunately, however, under the Cobb County principle, a judge can rule, simply, that all anti-abortion activism or legislation is religious in nature, because most of its supporters are religious; and it is therefore subject to judicial restriction in the name of separating Church and state.
On these grounds, I submit: We have a full-fledged atrocity.