1) It's not clear what test would apply when the view
endorsement is really "secularist." The Court has at times said that
expressing disapproval of religion is just as forbidden as expressing
endorsement, but it hasn't ruled on this. I agree, though, that it's
unlikely to adopt a more stringent test as to secularist views, and that
it shouldn't apply such a more stringent test.
2) As I see it, the strongest Establishment Clause challenge
here is *not* that UC Berkeley is endorsing a "secularist" perspective
-- rather, that it's endorsing a certain interpretation of Christianity
and Judaism (as being consistent with evolution) over rival
interpretations of Christianity and Judaism. That would be an
endorsement of a religious view, not a secularist one.
3) An observer in Pinette who knew the context would have
concluded that no government agency was endorsing Christianity, since it
was the Klan that put up the cross -- with no special preference from
the government -- and not the government. The dissent's concern there
was that many observers would not know the facts, and would draw an
incorrect inference.
Here, it seems to me that an observer who knew the context might
well conclude that UC Berkeley, or at least a department or institute
within it, was indeed endorsing one particular interpretation of
Christianity and Judaism. There's nothing in the context, it seems to
me, that would undermine the most plausible interpretation of the text,
which is that the authors of the site are trying to suggest that the
pro-evolution interpretation of those religions is the better one (and
not just one possible one, or even the most popular one).
4) Lynch, of course, is a tougher matter; my sense is that it's
actually not consistent, despite the talking wishing well, with the
endorsement test as set forth in Allegheny. Whether it survives
Allegheny, and what its survival means for other cases, is anyone's
guess.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet
> Sent: Wednesday, October 19, 2005 10:10 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: New lawsuit against U Cal Berkeley
>
>
> I wonder whether this analysis can be reconciled (even on the
> level of
> "quite plausible") with Lynch and Pinette, and the
> reasonable-observer-who-knows-a-fair-amount-of-the-context,
> etc., test
> for endorsement. Or, is the test for endorsement more stringent when
> the view endorsed is secularist as against religious?
>
> Volokh, Eugene wrote:
>
> > My apologies to Ed Brayton, whose earlier posts I
> regrettably failed
> >to properly grasp; I quite erroneously focused solely on the NCSEWeb
> >site, to which the Berkeley site links, and failed to focus -- as he
> >correctly points out we should focus -- on the context.
> >
> > Nonetheless, it seems to me that even if we include the
> context, there
> >is still a viable (as I've said before, hardly open-and-shut, but
> >quite plausible) endorsement objection. Here's the
> material from the
> >Berkeley site:
> >
> >
> >
> >Misconception:
> >"Evolution and religion are incompatible."
> >
> >Response:
> >Religion and science (evolution) are very different things.
> In science,
> >only natural causes are used to explain natural phenomena, while
> >religion deals with beliefs that are beyond the natural world.
> >
> >The misconception that one always has to choose between science and
> >religion is incorrect. Of course, some religious beliefs explicitly
> >contradict science (e.g., the belief that the world and all
> life on it
> >was created in six literal days); however, most religious
> groups have
> >no conflict with the theory of evolution or other scientific
> findings.
> >In fact, many religious people, including theologians, feel that a
> >deeper understanding of nature actually enriches their
> faith. Moreover,
> >in the scientific community there are thousands of
> scientists who are
> >devoutly religious and also accept evolution.
> >
> >For concise statements from many religious organizations regarding
> >evolution, see Voices for Evolution on the NCSE Web site [linking to
> >the site on which various groups opine on the proper
> interpretation of
> >Christianity and Judaism, and conclude that this proper
> interpretation
> >is consistent with evolution].
> >
> >
> >
> > It is indeed factually true that the view "that one
> always has to
> >choose between science and religion is incorrect" -- most
> claims that
> >include the word "always" are incorrect. Nonetheless, it
> seems to me
> >that in context a reasonable person could quite properly read these
> >paragraphs as not just demographic reports on religious
> attitudes but
> >as endorsement of one particular interpretation of Christianity and
> >Judaism. Note how the one provided example of a religious
> belief that
> >contradicts evolution is six-literal-day Creationism, an
> example that
> >I'm pretty sure most readers would see as a negative one.
> Nothing is
> >said of what I understand to be the much larger groups who disagree
> >with evolution on religious grounds but don't believe the world was
> >created in six literal days. The rest of the paragraphs is
> devoted to
> >what I suspect most reasonable readers would see as positive
> >descriptions of those religious groups that do see their
> religions as
> >consistent with evolution; and then there is a link that
> seems pretty
> >clearly an endorsement -- not just an objective "well,
> here's what some
> >people say" with no positive connotation -- of those
> religious beliefs.
> >
> > There can surely be objective discussions of religious views on
> >evolution, which aren't likely to be seen as an endorsement of some
> >such views, and aren't likely to be intended as an
> endorsement of some
> >such views. But this doesn't seem to be it.
> >
> > Finally, imagine a Web page maintained by a government-run
> >institution, and aimed at supporting some curriculum that teaches
> >students to oppose euthanasia (a view that of course public
> schools are
> >constitutionally free to teach, though I'm not sure that
> many indeed to
> >teach it; this page says:
> >
> >"Of course, some religious beliefs explicitly tolerate euthanasia
> >(e.g., the belief that there's nothing wrong with killing); however,
> >most religious groups do not support euthanasia. In fact, many
> >religious people, including theologians, feel that
> supporting a culture
> >of life actually enriches their faith. Moreover, in the medical
> >community there are thousands of doctors who are devoutly
> religious and
> >also reject euthanasia.
> >
> >For concise statements from many religious organizations regarding
> >euthanasia, see Voices for Life on the VFL Web site [linking
> to a site
> >on which various groups opine on the proper interpretation of
> >Christianity and Judaism, and conclude that this proper
> interpretation
> >rejects euthanasia]."
> >
> > Is this an endorsement of a particular set of religious beliefs
> >(beliefs that Christianity and Judaism, as rightly
> interpreted, reject
> >euthanasia), or just a non-endorsing objective summary of
> facts about
> >religious belief?
> >
> > Eugene
> >_______________________________________________
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> >
>
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