In Search of Consistency

I have written:

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.

The context for those observations was the legal controversy (Kitzmiller v. Dover Area School District) about the decision of the Dover, Pennsylvania, School Board to mandate that students in public school biology classes be taught the theory of intelligent design (ID) as an alternative to evolution.

Timothy Sandefur seems sympathetic to my general point, when he writes about

the public policy problem of the courts determining what sets of unprovable beliefs are and are not objectively irrational. On one hand, courts have even gone so far as to take judicial notice of the irrationality of certain beliefs. See, e.g., United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985) (courts may take judicial notice of the invalidity of phrenology or astrology). But on the other hand, taking a step in this direction threatens important Establishment Clause and Free Exercise rights. That’s why in United States v. Ballard, 322 U.S. 78 (1944), the Court found that it could not inquire into the scientific validity (or lack thereof) of faith healing, in a case involving a mail fraud prosecution. If courts can determine that certain beliefs with regard to ghosts are objectively irrational and untrue, then what about religious beliefs (which are, in fact [according to Sandefur: LC], objectively irrational and untrue)?

And, yet, Sandefur has been a vocal defender of the Kitzmiller decision, in which Judge John E. Jones III held that

the facts of this case make[] it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not... (emphasis added).

Perhaps Sandefur will tell us how he has reconciled his apparently conflicting views. He does not tell us in his paper, "A Response to the Creationists' "Neutrality" Argument." The argument of that paper boils down to this:

• Schools exist for the purpose of teaching facts and sound thinking.

• Therefore, schools should not teach things like ID, which Sandefur calls "objectively irrational and untrue), even though there is no scientific basis for accepting or rejecting ID. (See, for example, this post and the posts linked therein.)

• Public schools are governmental institutions.
  

• Government cannot be in the business of establishing religion.

• Therefore, as governmental institutions, schools should not teach ID (a cover story for creationism) as an alternative to evolutionary theory.

In sum, Sandefur parlays an unprovable allegation about ID into a first-amendment case on the strength of the fact that public schools are governmental institutions. That's true enough. But public schools are not government. That is, unlike legislatures, executives, and judges, they do not control the machinery of the state. Public schools are governmental institutions in the same way that my city-owned electric company is a governmental institution. In both cases, government simply has seized control of what could just as easily be a private institution (and a better one for it). Public schools become "government" only to the extent that government dictates what is taught (or not taught) in public schools, as it does in Kitzmiller.

Sandefur, in essence, argues that government ought to control schools (an anti-libertarian idea) so that it can control the content of what is taught in schools. And that content should advance his "objectively" correct atheistic agenda. Sandefur (like Marx) evinces a naïve faith in what he calls science:

Science’s focus on empirical evidence and demonstrable theories is part of an Enlightenment legacy that made possible a peaceful and free society among diverse equals. Teaching that habit of mind is of the essence for keeping our civilization alive. To reject the existence of objective truth is to reject the the possibility of common ground, to undermine the very purpose of scholarly, intellectual discourse, and to strike at the root of all that makes our values valuable and our society worthwhile.... At a time when Americans are threatened by an enemy that rejects science and reason, and demands respect for dogmas entailing violence, persecution, and tyranny, nothing more deserves our attention than nourishing respect for reason.

In fact, Americans -- and liberty -- are threatened by many things, not the least of which is dogmatism of the kind Sandefur evinces. As I say here, "Liberty ... to the 'libertarian' Left, is the 'right' to believe as they do."

Liberty demands, first and foremost, mutual respect. Science is not a breeding ground for mutual respect, as the controversy about global warming (among other issues) should remind us. Ironically (for Sandefur), mutual respect arises mainly from a concept that is widely associated with religion, namely, the "Golden Rule."