The Establishment Clause says that "Congress shall make no law respecting an establishment of religion...." That provision, with many other parts of the Bill of Rights, became binding on the States by "incorporation" under this provision of the Fourteenth Amendment:
...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.So far, so good. But Dorf then goes on to argue the the courts should test the School Board's mandate by asking
whether intelligent design is, in fact, a scientific theory at all. It should do so, not because of any general obligation on the part of schools to teach science correctly, but simply because if intelligent design is not science, then the inference is almost inescapable that the state is impermissibly acting for the purpose of fostering a religious viewpoint.Think of the fine mess we'd be in if the courts were to rule against the teaching of intelligent design not because it amounts to an establishment of religion but because it's unscientific. That would open the door to all sorts of judicial mischief. The precedent could -- and would -- be pulled out of context and used in limitless ways to justify government interference in matters where government has no right to interfere.
It's bad enough that government is in the business of funding science -- though I can accept such funding where it actually aids our defense effort. But, aside from that, government has no business deciding for the rest of us what's scientific or unscientific. When it gets into that business, you had better be ready for a rerun of the genetic policies of the Third Reich.
