Re: New lawsuit against U Cal Berkeley

[Richard Dougherty]

Yes, and I think you have made my point, if it wasn't clear.  To say that 
evolution and theism are not instrinsically incompatible is to say that 
religions that teach that they are intrinsically incompatible are wrong.  I 
don't see any alternative.  Does it make sense to say that some religions say 
that they are compatible, some say they are not, but the fact is that they are 
not - and hold that as a neutral conclusion?  If we are going to play the game 
of neutrality (which, to tie this back into religion law, I don't think is 
necessary), then we have to be neutral.  Saying that religions that teach the 
two are incompatible are wrong because some people think they are compatible is 
not simply a statement of fact, but a judgment of content.

-- Original Message --
From: Ed Brayton <[EMAIL PROTECTED]>
Date:  Tue, 18 Oct 2005 23:52:23 -0400

>Richard Dougherty wrote:
>
>>Ed:
>>I take it that Frank's point (he will correct me if I'm wrong, I hope) is 
>>that saying that some religious people acccept evolution does not necessarily 
>>lead to the conclusion that therefore there is no instrinsic incompatibility. 
>> The most one can say is that these people do not see any instrinsic 
>>incompatibility.  No? 
>>
>
>No. The most that anyone can say is that evolution either conflicts or 
>does not conflict with /their/ religious views, not that evolution 
>conflicts or does not conflict with "religious views" in general. 
>Evolution is not incompatible with theism, it is only incompatible with 
>some specific theistic viewpoints. Thus, there is no inherent conflict 
>between evolution and religion, but only between evolution and those few 
>specific religious viewpoints. Those who argue that those who find them 
>compatible are wrong are really only saying that the other person's 
>religious views are wrong. The website takes no position on the question 
>of whose views are right and wrong, it merely notes that some religious 
>views are compatible with evolution and some are not.
>
>Ed Brayton
>
>
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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Title: Re: New lawsuit against U Cal Berkeley






Francis Beckwith wrote:

  
  Ed:
  
On 10/18/05 9:44 PM, "Ed Brayton" <[EMAIL PROTECTED]> wrote:
  
  >>  
  > 
> Only because they have been told that evolution = philosophical
materialism. 
> That is not only false, it is absurdly false. No one has yet
explained why 
> evolution is "naturalistic" or "materialistic" in any difference
sense than 
> the way in which the germ theory of disease or the kinetic theory
of gasses 
> are naturalistic or materialistic. They all use the working
assumption of 
> methodological naturalism and none of them require philosophical
or 
> metaphysical naturalism. 
  
  But that's not what we hear from some
of the folks doing the legal work on this subject. For example,
attorney Steven Gey, who co-authored a recent law review article with
Barbara Forrest, an expert witness at Dover, had this to say about the
nature of the first amendment:
  
  
  The establishment clause should be
viewed as a reflection of the secular, relativist political values of
the Enlightenment, which are incompatible with the fundamental nature
of religious faith.  As an embodiment of these Enlightenment values,
the establishment clause requires that the political influence of
religion be substantially diminished….Religious belief and practice
should be protected under the first amendment, but only to the same
extent and for the same reason that all other forms of _expression_ and
conscience are protected -- because the first amendment prohibits
government from enacting into law any religious, political, or
aesthetic orthodoxy….[R]eligious principles are not based on logic or
reason, and, therefore, may not be proved or disproved…[R]eligion
asserts that its principles are immutable and absolutely authoritative,
democratic theory asserts just the opposite.  The sine qua non of any
democratic state is that everything political is open to question; not
only specific policies and programs, but the very structure of the
state itself must always be subject to challenge.  Democracies are by
nature inhospitable to political or intellectual stasis or certainty.
 Religion is fundamentally incompatible with this intellectual
cornerstone of the modern democratic state.  The irreconcilable
distinction between democracy and religion is that, although there can
be no sacrosanct principles or unquestioned truths in a democracy, no
religion can exist without sacrosanct principles and unquestioned
truths...

For the same reason, the state may teach the value of rationalism  and
critical thought in the humanities, and favor logically coherent
theories in the sciences n492 because those actions do not concern the
fundamental questions which form the heart of the religious project.

Steven G. Gey, Why is Religion Special?: Reconsidering the
Accommodation of Religion Under the Religion Clauses of the First
Amendment 52 U. Pitt. L. Rev. 75, 79, 167, 174, 179-80 (Fall 1990)
(notes omitted).  Much of this quote is reproduced in my recent
article, Gimme That Ol’ Time Separation, Chapman Law Review 8.1 (2005),
which can one download from this page: http://homepage.mac.com/francis.beckwith/downloads.htm



Where does this say anything at all about whether evolution (or science
in general) requires philosophical naturalism? It isn't even about
science at all, it's about the meaning of the first amendment. My
argument, the one you are ostensibly responding to, is that
methodological naturalism (MN) does not require philosophical
naturalism (PN). This quote not only does nothing to disprove my
argument, it doesn't address it at all.
Forrest herself teases out what she
believes are the materialist implications of science in her article, The
Possibility of Meaning in Human Evolution, Zygon: Journal of
Religion & Science 35.4 (Dec 2000), 861-889.  She writes: 
  
   We have established scientifically
some disquieting facts: (1) human beings have evolved from nonhuman
life forms, meaning that (2) at one time we did not exist, and that (3)
according to paleontological and astronomical evidence, at some time in
the future we shall cease to exist. Furthermore, from a scientific
standpoint, there is no discernible reason that we had to evolve in the
first place, and there is no guarantee that we shall continue to evolve
successfully; more hominid species have become extinct than have
survived.  The price of such knowledge has been the gnawing question of
whether human existence has genuine meaning if it was constructed with
cranes rather than supported by skyhooks, as Daniel Dennett says.
 The problem of meaning is easily resolved for those who embrace a
preconstructed system of meaning such as religion.  However, religion
cannot help us find meaning in any honest sense unless it can
assimilate the truth about where human beings have come from, and the
only real knowledge we have about where we came from we have acquired
through science. 
Id., 862 (emphasi

Re: New lawsuit against U Cal Berkeley

[Francis Beckwith]

Title: Re: New lawsuit against U Cal Berkeley



Ed:

On 10/18/05 9:44 PM, "Ed Brayton" <[EMAIL PROTECTED]> wrote:

>>  
> 
> Only because they have been told that evolution = philosophical materialism. 
> That is not only false, it is absurdly false. No one has yet explained why 
> evolution is "naturalistic" or "materialistic" in any difference sense than 
> the way in which the germ theory of disease or the kinetic theory of gasses 
> are naturalistic or materialistic. They all use the working assumption of 
> methodological naturalism and none of them require philosophical or 
> metaphysical naturalism. 

But that's not what we hear from some of the folks doing the legal work on this subject. For example, attorney Steven Gey, who co-authored a recent law review article with Barbara Forrest, an expert witness at Dover, had this to say about the nature of the first amendment:

The establishment clause should be viewed as a reflection of the secular, relativist political values of the Enlightenment, which are incompatible with the fundamental nature of religious faith.  As an embodiment of these Enlightenment values, the establishment clause requires that the political influence of religion be substantially diminished….Religious belief and practice should be protected under the first amendment, but only to the same extent and for the same reason that all other forms of _expression_ and conscience are protected -- because the first amendment prohibits government from enacting into law any religious, political, or aesthetic orthodoxy….[R]eligious principles are not based on logic or reason, and, therefore, may not be proved or disproved…[R]eligion asserts that its principles are immutable and absolutely authoritative, democratic theory asserts just the opposite.  The sine qua non of any democratic state is that everything political is open to question; not only specific policies and programs, but the very structure of the state itself must always be subject to challenge.  Democracies are by nature inhospitable to political or intellectual stasis or certainty.  Religion is fundamentally incompatible with this intellectual cornerstone of the modern democratic state.  The irreconcilable distinction between democracy and religion is that, although there can be no sacrosanct principles or unquestioned truths in a democracy, no religion can exist without sacrosanct principles and unquestioned truths...

For the same reason, the state may teach the value of rationalism  and critical thought in the humanities, and favor logically coherent theories in the sciences n492 because those actions do not concern the fundamental questions which form the heart of the religious project.

Steven G. Gey, Why is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment 52 U. Pitt. L. Rev. 75, 79, 167, 174, 179-80 (Fall 1990) (notes omitted).  Much of this quote is reproduced in my recent article, Gimme That Ol’ Time Separation, Chapman Law Review 8.1 (2005), which can one download from this page: http://homepage.mac.com/francis.beckwith/downloads.htm


Forrest herself teases out what she believes are the materialist implications of science in her article, The Possibility of Meaning in Human Evolution, Zygon: Journal of Religion & Science 35.4 (Dec 2000), 861-889.  She writes: 
 We have established scientifically some disquieting facts: (1) human beings have evolved from nonhuman life forms, meaning that (2) at one time we did not exist, and that (3) according to paleontological and astronomical evidence, at some time in the future we shall cease to exist. Furthermore, from a scientific standpoint, there is no discernible reason that we had to evolve in the first place, and there is no guarantee that we shall continue to evolve successfully; more hominid species have become extinct than have survived.  The price of such knowledge has been the gnawing question of whether human existence has genuine meaning if it was constructed with cranes rather than supported by skyhooks, as Daniel Dennett says.
 The problem of meaning is easily resolved for those who embrace a preconstructed system of meaning such as religion.  However, religion cannot help us find meaning in any honest sense unless it can assimilate the truth about where human beings have come from, and the only real knowledge we have about where we came from we have acquired through science. 
Id., 862 (emphasis added) (notes omitted)

Ed, I know these may not be your views. But one some of us read this stuff by counsel and expert conscripted for your cause, we find it difficult to believe that this project is not anti-theological and not just anti-literal interpretation of Genesis.

Frank





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Federal Funding for Rebuilding Religious Schools

[Marty Lederman]

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/18/AR2005101801622.html
 
Chip Lupu and Bob Tuttle 
published a very valuable webpage about the problem a couple of years 
back:
 
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=16
 
The OLC Opinion that opened the door to such aid is 
here:
 
http://www.usdoj.gov/olc/FEMAAssistance.htm 
 
[Disclosure:  I worked on it, although I don't 
necessarily agree with all of it.]
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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Richard Dougherty wrote:

  Ed:
I take it that Frank's point (he will correct me if I'm wrong, I hope) is that saying that some religious people acccept evolution does not necessarily lead to the conclusion that therefore there is no instrinsic incompatibility.  The most one can say is that these people do not see any instrinsic incompatibility.  No? 


No. The most that anyone can say is that evolution either conflicts or
does not conflict with their religious views, not that
evolution conflicts or does not conflict with "religious views" in
general. Evolution is not incompatible with theism, it is only
incompatible with some specific theistic viewpoints. Thus, there is no
inherent conflict between evolution and religion, but only between
evolution and those few specific religious viewpoints. Those who argue
that those who find them compatible are wrong are really only saying
that the other person's religious views are wrong. The website takes no
position on the question of whose views are right and wrong, it merely
notes that some religious views are compatible with evolution and some
are not. 

Ed Brayton


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Re: New lawsuit against U Cal Berkeley

[Richard Dougherty]

Ed:
I take it that Frank's point (he will correct me if I'm wrong, I hope) is that 
saying that some religious people acccept evolution does not necessarily lead 
to the conclusion that therefore there is no instrinsic incompatibility.  The 
most one can say is that these people do not see any instrinsic 
incompatibility.  No? If the page is going to stick to facts, which I applaud, 
it should.

(FWIW, I'm not a young earther, but neither do I think that the children _and_ 
the flowers are my sisters and my brothers -- or cousins.)

Richard Dougherty

Ed Brayton wrote (in part):
>
>You have to keep in mind that the NCSE page that is referenced is not 
>intended to be shown to students. It is merely a reference for teachers 
>to show them that some religious groups do in fact accept evolution and 
>therefore there is no intrinsic incompatibility.
>
>Ed Brayton
>
>
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RE: New lawsuit against U Cal Berkeley

[Ed Darrell]

Unfortunately for the contrary view, those are the majority viewpoints of the majority of sects in the U.S.  One might hope that the minority view in these faiths would be reported at the websites of the faiths themselves, but one would most likely be disappointed.  NCSE carries the words of the sects themselves, and they represent the majority of Christian congregations which represent the majority of Christians in America. 
 
The statement at the Berkeley site is factual, as Mr. Brayton noted.  Some may not like that facts, but that does not make a statement of the facts a religious bias.   There may be a few other sects now which have official statements against evolution.  But the Berkeley site understates the facts.  The site is not a public forum for debate.  Unless there is factual error, I don't think there is any requirement that a statement of history be "balanced" by views that take the opposite stance, is there?  If there were factual error, certainly Mr. Caldwell could have complained and provided information to correct the error.  
 
Mr. Caldwell claims not to be a creationist in other fora.  One wonders just what interest the Caldwells have in balancing a statement that is factual, and which does not offend them, either.
 
Ed Darrell
Dallas
 
"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
Unless I'm mistaken, all the views noted on the site(http://www.ncseweb.org/resources/articles/7445_statements_from_religious_org_12_19_2002.asp#top) endorse the same family of religious positions-- Judaism and Christianity are consistent with evolution. Am I missingsome items on that page that express "the opposite points of view"? Mysense is that "the range of opinions" given on that page is a range from"Judaism is consistent with evolution" through "Protestantism isconsistent with evolution" to "Catholicism is consistent withevolution," not a range of opinions that really captures the "oppositepoints of view."EugeneEd Brayton wrote:> I think if the same website did not also acknowledge the > opposite points > of view, and do so in both cases in purely descriptive language, this > would be m!
 ore
 likely. But in fact it does describe multiple religious > points of view and does not endorse any of them, merely describes the > different viewpoints and which ones conflict with what we science has > found and which ones do not. If it did not also acknowledge > that there > are religious viewpoints that are not compatible, their case would be > much stronger.> > Bear in mind also that this is a website designed to help > teachers not > only teach evolution more effectively but also deal with > questions they > are likely to be asked by students (I am fortunate enough to > have seen > the website as it was being developed and know the folks who put it > together and it was conceived as a tool for training teachers; it has > since been expanded and made publicly accessible). If a student asks > whether evolution contradicts with religion, what possible !
 >
 answer could > a teacher give other than something like, "Opinions vary. > Some religious > views are incompatible with it and some are not, but the fact > that there > are thousands of devoutly religious scientists who also work in the > field of evolution clearly means they aren't inherently at > odds with one > another"? The link to the statements from various religious > organizations was put there for teachers to see what the range of > opinions are, not for them to give to students.> > Ed Brayton> > > -- > No virus found in this outgoing message.> Checked by AVG Anti-Virus.> Version: 7.0.344 / Virus Database: 267.12.2/140 - Release > Date: 10/18/05 ___> To post, send message to Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, > see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others.> ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___
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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Title: Re: New lawsuit against U Cal Berkeley




Francis Beckwith wrote:

  
  Ed:
  
What I think the Berkeley site should have done is to say that there is
a wide range of views across a continuum.  I do not think the Berkeley
site does that. It cites—if my memory serves me right—only religious
groups and organizations that are left of center.  There are, as you
know, religious groups that take a different point of view, that would
be classified as conservative but not fundamentalist. I think, for
example, of a thinker like C. S. Lewis, who, in the Abolition of Man,
offered an argument against scientism, but in other works claimed that
evolution is not inconsistent with theism. This sort of approach,
theological realist but not fundamentalist, I do not believe is
represented in the NCSE list. What is represented are liberal religious
groups that have largely rejected the theological traditions of their
predecessors. 
  

The site does in fact acknowledge that there are two different views. I
posted the text in question earlier. They say that of course there are
some religious beliefs that are in conflict with science and evolution
in particular, like the belief in a young earth. But you have to keep
in mind the context. The context is in answering certain misconceptions
about evolution, one of which is that it is incompatible with religious
belief. Evolution is as compatible with religious belief as any other
scientific theory. There may be specific religious beliefs that
conflict with evolution, just as there are specific religious beliefs
that conflict with the germ theory of disease, heliocentrism or a
spherical earth, but it is false to claim that it is incompatible with
religious belief in general or even with most religious beliefs. It is
that misconception that they are attempting to answer and it is not
necessary that they take a position on whether any particular religious
belief is true or not. They merely point out three things:

A. Most religious groups have no conflict with the theory of evolution.
B. Many religious people feel that a deeper understanding of nature
enriches their faith.
C. There are thousands of scientists who are devoutly religious and
accept evolution.

All three of those statements are entirely true and entirely
descriptive. The reference to the NCSE list merely provides the
evidence for those descriptive statements. The point is not to give a
thorough explanation of all the possible religious views or to take a
position on which of all of them might be true, but merely to point out
that there is no inherent incompatibility between religion and
evolution, that many people do reconcile them in various ways. 

I guess I am in the Lewis camp. I do not think that evolution and
Christian theism are incompatible.  But I do think that philosophical
materialism and Christian theism are incompatible.  And this is where
religious citizens see the tension.  
  

Only because they have been told that evolution = philosophical
materialism. That is not only false, it is absurdly false. No one has
yet explained why evolution is "naturalistic" or "materialistic" in any
difference sense than the way in which the germ theory of disease or
the kinetic theory of gasses are naturalistic or materialistic. They
all use the working assumption of methodological naturalism and none of
them require philosophical or metaphysical naturalism. 
They are told, as Lewis believed, that
evolution and Christian theism are compatible. Fair enough. But then
they see their position “represented” by the NCSE in the published
statements of liberal religious groups who are essentially hostile to
their theological traditions and have abandoned the notion that
traditional theology may be rationally embraced by thoughtful people. 


You have to keep in mind that the NCSE page that is referenced is not
intended to be shown to students. It is merely a reference for teachers
to show them that some religious groups do in fact accept evolution and
therefore there is no intrinsic incompatibility.

Ed Brayton


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Re: New lawsuit against U Cal Berkeley

[Francis Beckwith]

Title: Re: New lawsuit against U Cal Berkeley



Ed:

As for “married bachelor,” I suspect that President Clinton would defend its coherency. :-) All kidding aside, I use the illustration to make the point that a religious person’s claims about the coherency of their own beliefs is not the proper object of analysis.  You correctly point out that the concept, married-bachelor, is in fact incoherent regardless of whether or not someone believes it isn’t.  What I think the Berkeley site should have done is to say that there is a wide range of views across a continuum.  I do not think the Berkeley site does that. It cites—if my memory serves me right—only religious groups and organizations that are left of center.  There are, as you know, religious groups that take a different point of view, that would be classified as conservative but not fundamentalist. I think, for example, of a thinker like C. S. Lewis, who, in the Abolition of Man, offered an argument against scientism, but in other works claimed that evolution is not inconsistent with theism. This sort of approach, theological realist but not fundamentalist, I do not believe is represented in the NCSE list. What is represented are liberal religious groups that have largely rejected the theological traditions of their predecessors. 

I guess I am in the Lewis camp. I do not think that evolution and Christian theism are incompatible.  But I do think that philosophical materialism and Christian theism are incompatible.  And this is where religious citizens see the tension.  They are told, as Lewis believed, that evolution and Christian theism are compatible. Fair enough. But then they see their position “represented” by the NCSE in the published statements of liberal religious groups who are essentially hostile to their theological traditions and have abandoned the notion that traditional theology may be rationally embraced by thoughtful people. 

Take care,
Frank

On 10/18/05 5:36 PM, "Ed Brayton" <[EMAIL PROTECTED]> wrote:



Francis Beckwith wrote: 
 
The problem with the answer, "devoutly religious people believe X and Y at
the same time," assumes that the way we answer such questions is to ask the
people who believe both X and Y rather than assess the conceptual
compatibility of both X and Y. If, for example, I were to ask the question,
"Can one be both a bachelor and married?," and you answered, "Fred here is
devoutly married by he also claims to be unmarried as well." By suggesting
to student that the way you answer conceptual questions about religion is to
point toward religious people teaches them that religion is not a matter of
intellectual rigor but personal piety and subjective preference.  That is a
particular religious epistemology, and controversial at that.
  

Frank, surely you would not defend the position that evolutionary theory and religious belief are inherently incompatible? I don't think you have to delve into the question of which is true or false at all in order to take what is, to me, the obviously true position that some religious beliefs are compatible with evolution and some are not. I would also note that a teacher in a public school really can't go beyond this sort of descriptive statement without running into serious establishment clause problems. I would assume that you don't want teachers to delve into this religious epistemology any deeper than the merely descriptive statement that some religious people accept it and some don't, do you? The analogy to a married bachelor is quite inaccurate simply because there is a simple and objective and legal answer to whether one is or is not married, there is only one possible answer, you either are or you aren't. Not true of religious beliefs, which are as varied as they could possibly be. Surely we don't want teachers to delve into taking a position on which one is right. That is precisely what Caldwell claims to be going on here, though it isn't. You seem to be arguing that the failure to do so is a problem, which I'm afraid leaves me quite confused.

Ed Brayton


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A

Re: New lawsuit against U Cal Berkeley

[Mark Tushnet]

Ed Brayton's post raises what I thought was the most interesting 
question raised by the lawsuit:  Can the inclusion of one link (to 
what might be a non-neutral site) produce an Establishment 
Clause violation -- when the complaint does not (apparently) 
identify (according to the report) anything else in the U Cal's web 
pages that makes reference to religion?  Put another way, why 
isn't this just Lynch v. Donnelly?

- Original Message -
From: Ed Brayton <[EMAIL PROTECTED]>
Date: Tuesday, October 18, 2005 6:59 pm
Subject: Re: New lawsuit against U Cal Berkeley

> Volokh, Eugene wrote:
> 
> > Hmm -- when I read that page, I see lots of quotes that 
endorse
> >the point of view that "evolution and religious belief are 
> compatible.">I see none that take any other position or point of 
> view on the subject.
> >Nor do I see any quotes that fit in the "some reject it" camp; all 
> seem>to be of the "some accept it" camp.  What am I missing 
here?  
> Am I
> >reading the wrong page?
> >
> 
> Depends on what you mean by "that page". If you mean the 
NCSE page, 
> all 
> of those statements are from denominations that accept 
evolution. 
> But 
> that is the only point of that page, to support the descriptive and 
> true 
> statement that some religious groups accept evolution and do 
not 
> see 
> them as in conflict. The Berkeley page states explicitly, in the 
> text 
> that I copied earlier, that there are some religious positions, 
> such as 
> belief in a young earth, that are incompatible with the findings of 
> science and with evolutionary theory. Then it goes on to say 
that 
> not 
> all religious groups take that position, and many of them take 
> positions 
> that are compatible and makes reference to an outside 
resource (the 
> NCSE 
> page) to support that descriptive statement.
> 
> Ed Brayton
> 
> 
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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Volokh, Eugene wrote:


Hmm -- when I read that page, I see lots of quotes that endorse
the point of view that "evolution and religious belief are compatible."
I see none that take any other position or point of view on the subject.
Nor do I see any quotes that fit in the "some reject it" camp; all seem
to be of the "some accept it" camp.  What am I missing here?  Am I
reading the wrong page?



Depends on what you mean by "that page". If you mean the NCSE page, all 
of those statements are from denominations that accept evolution. But 
that is the only point of that page, to support the descriptive and true 
statement that some religious groups accept evolution and do not see 
them as in conflict. The Berkeley page states explicitly, in the text 
that I copied earlier, that there are some religious positions, such as 
belief in a young earth, that are incompatible with the findings of 
science and with evolutionary theory. Then it goes on to say that not 
all religious groups take that position, and many of them take positions 
that are compatible and makes reference to an outside resource (the NCSE 
page) to support that descriptive statement.


Ed Brayton


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RE: New lawsuit against U Cal Berkeley

[Volokh, Eugene]

Hmm -- when I read that page, I see lots of quotes that endorse
the point of view that "evolution and religious belief are compatible."
I see none that take any other position or point of view on the subject.
Nor do I see any quotes that fit in the "some reject it" camp; all seem
to be of the "some accept it" camp.  What am I missing here?  Am I
reading the wrong page?

Eugene


Ed Brayton writes:

Well I can tell you with certainty, because I know the people who put
the NCSE resource page together, that the various positions taken by the
various denominations do not represent their point of view simply
because they have many points of view. There is no single NCSE (or
Berkeley education site) position on whether evolution and religious
belief are compatible, there are many points of view. What they all
agree on, and what any rational person should agree on, is that there
are a multitude of religious positions on the subject of evolution; some
reject it, some accept it. That descriptive statement is absolutely
undeniable and I have a difficult time seeing how acknowledging that
obvious fact could possibly be an establishment clause violation.
Timothy Sandefur has a more thorough analysis of this here.
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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Title: Message




Volokh, Eugene wrote:

  
  
  
      Sure, that's the way I'd argue it if I were
Berkeley's lawyer -- we're not actually endorsing the position, but
just characterizing what various groups are saying, which may be useful
for you as a science teacher.
   
      But this is very far from a clear winner under the
doctrine.  It seems pretty clear that the resource page is suggesting
that its authors agree with what these groups are saying -- evolution
is not inconsistent with Judaism and Christianity -- rather than with
what the rival groups are saying.  In this respect, it seems to me that
a court could find that a reasonable person would understand the page
as an endorsement of a particular religious viewpoint, which is that
the proper understanding of Judaism/Christianity is consistent with
evolution, and not as mere description of that viewpoint.


Well I can tell you with certainty, because I know the people who put
the NCSE resource page together, that the various positions taken by
the various denominations do not represent their point of view simply
because they have many points of view. There is no single NCSE (or
Berkeley education site) position on whether evolution and religious
belief are compatible, there are many points of view. What they all
agree on, and what any rational person should agree on, is that there
are a multitude of religious positions on the subject of evolution;
some reject it, some accept it. That descriptive statement is
absolutely undeniable and I have a difficult time seeing how
acknowledging that obvious fact could possibly be an establishment
clause violation. Timothy Sandefur has a more thorough analysis of this
here.

Ed Brayton


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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Francis Beckwith wrote:

  The problem with the answer, "devoutly religious people believe X and Y at
the same time," assumes that the way we answer such questions is to ask the
people who believe both X and Y rather than assess the conceptual
compatibility of both X and Y. If, for example, I were to ask the question,
"Can one be both a bachelor and married?," and you answered, "Fred here is
devoutly married by he also claims to be unmarried as well." By suggesting
to student that the way you answer conceptual questions about religion is to
point toward religious people teaches them that religion is not a matter of
intellectual rigor but personal piety and subjective preference.  That is a
particular religious epistemology, and controversial at that.
  


Frank, surely you would not defend the position that evolutionary
theory and religious belief are inherently incompatible? I
don't think you have to delve into the question of which is true or
false at all in order to take what is, to me, the obviously true
position that some religious beliefs are compatible with
evolution and some are not. I would also note that a teacher in
a public school really can't go beyond this sort of descriptive
statement without running into serious establishment clause problems. I
would assume that you don't want teachers to delve into this religious
epistemology any deeper than the merely descriptive statement that some
religious people accept it and some don't, do you? The analogy to a
married bachelor is quite inaccurate simply because there is a simple
and objective and legal answer to whether one is or is not married,
there is only one possible answer, you either are or you aren't. Not
true of religious beliefs, which are as varied as they could possibly
be. Surely we don't want teachers to delve into taking a position on
which one is right. That is precisely what Caldwell claims to be going
on here, though it isn't. You seem to be arguing that the failure to do
so is a problem, which I'm afraid leaves me quite confused.

Ed Brayton



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RE: New lawsuit against U Cal Berkeley

[Volokh, Eugene]

Title: Message



    Sure, that's the way I'd argue it if I were 
Berkeley's lawyer -- we're not actually endorsing the position, but just 
characterizing what various groups are saying, which may be useful for you as a 
science teacher.
 
    But this is very far from a clear winner under the doctrine.  
It seems pretty clear that the resource page is suggesting that its authors 
agree with what these groups are saying -- evolution is not inconsistent with 
Judaism and Christianity -- rather than with what the rival groups are 
saying.  In this respect, it seems to me that a court could find that a 
reasonable person would understand the page as an endorsement of a particular 
religious viewpoint, which is that the proper understanding of 
Judaism/Christianity is consistent with evolution, and not as mere description 
of that viewpoint.
 
    Eugene
 

-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of Ed BraytonSent: Tuesday, October 18, 2005 2:48 
PMTo: Law & Religion issues for Law AcademicsSubject: 
Re: New lawsuit against U Cal Berkeley
Volokh, 
  Eugene wrote: 
  	Unless I'm mistaken, all the views noted on the site
(http://www.ncseweb.org/resources/articles/7445_statements_from_religiou
s_org_12_19_2002.asp#top) endorse the same family of religious positions
-- Judaism and Christianity are consistent with evolution.  Am I missing
some items on that page that express "the opposite points of view"?  My
sense is that "the range of opinions" given on that page is a range from
"Judaism is consistent with evolution" through "Protestantism is
consistent with evolution" to "Catholicism is consistent with
evolution," not a range of opinions that really captures the "opposite
points of view."
  The NCSE resource page contains only those statements 
  from various denominations on the compatibility of evolution and their 
  religious beliefs, but that is appropriate because the reference is given 
  specifically to provide evidence for that descriptive statement. It is 
  intended to answer someone who takes the opposite position, and it does not 
  answer it by saying, "You're wrong". It answers that position by making the 
  accurate and purely descriptive statement that other people, including many of 
  the scientists involved in evolutionary research, hold both positions to be 
  true. They make that descriptive statement and then link to the evidence that 
  supports that description. Nowhere in the text of the website is that position 
  endorsed, only described as evidence that religion and evolution are not 
  inherently incompatible. But they also acknowledge, in the text that I 
  cited, that some people hold religious views that are incompatible. 
  That alone, it seems to me, mitigates the concern over endorsement here. Both 
  views are described; neither are endorsed.Ed 
Brayton
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Re: New lawsuit against U Cal Berkeley

[Francis Beckwith]

The problem with the answer, "devoutly religious people believe X and Y at
the same time," assumes that the way we answer such questions is to ask the
people who believe both X and Y rather than assess the conceptual
compatibility of both X and Y. If, for example, I were to ask the question,
"Can one be both a bachelor and married?," and you answered, "Fred here is
devoutly married by he also claims to be unmarried as well." By suggesting
to student that the way you answer conceptual questions about religion is to
point toward religious people teaches them that religion is not a matter of
intellectual rigor but personal piety and subjective preference.  That is a
particular religious epistemology, and controversial at that.

I addressed the site in question in a piece I published last year in
American Spectator online. You can find it here:
http://www.spectator.org/util/print.asp?art_id=6395  Timothy Sandefur
responds to me here (or as Ed says "completely shreds me"):
http://www.pandasthumb.org/pt-archives/000100.html  And I respond to him
here: http://degas.fdisk.net/cgi-bin/mt/mt-comments.cgi?entry_id=121
Sandefur responds that one here:
http://www.pandasthumb.org/pt-archives/000132.html  And respond that one
here: http://homepage.mac.com/francis.beckwith/ts.htm

Cheers.

Frank

On 10/18/05 3:58 PM, "Volokh, Eugene" <[EMAIL PROTECTED]> wrote:

> Unless I'm mistaken, all the views noted on the site
> (http://www.ncseweb.org/resources/articles/7445_statements_from_religiou
> s_org_12_19_2002.asp#top) endorse the same family of religious positions
> -- Judaism and Christianity are consistent with evolution.  Am I missing
> some items on that page that express "the opposite points of view"?  My
> sense is that "the range of opinions" given on that page is a range from
> "Judaism is consistent with evolution" through "Protestantism is
> consistent with evolution" to "Catholicism is consistent with
> evolution," not a range of opinions that really captures the "opposite
> points of view."
> 
> Eugene
> 
> Ed Brayton wrote:
> 
>> I think if the same website did not also acknowledge the
>> opposite points 
>> of view, and do so in both cases in purely descriptive language, this
>> would be more likely. But in fact it does describe multiple religious
>> points of view and does not endorse any of them, merely describes the
>> different viewpoints and which ones conflict with what we science has
>> found and which ones do not. If it did not also acknowledge
>> that there 
>> are religious viewpoints that are not compatible, their case would be
>> much stronger.
>> 
>> Bear in mind also that this is a website designed to help
>> teachers not 
>> only teach evolution more effectively but also deal with
>> questions they 
>> are likely to be asked by students (I am fortunate enough to
>> have seen 
>> the website as it was being developed and know the folks who put it
>> together and it was conceived as a tool for training teachers; it has
>> since been expanded and made publicly accessible). If a student asks
>> whether evolution contradicts with religion, what possible
>> answer could 
>> a teacher give other than something like, "Opinions vary.
>> Some religious 
>> views are incompatible with it and some are not, but the fact
>> that there 
>> are thousands of devoutly religious scientists who also work in the
>> field of evolution clearly means they aren't inherently at
>> odds with one 
>> another"? The link to the statements from various religious
>> organizations was put there for teachers to see what the range of
>> opinions are, not for them to give to students.
>> 
>> Ed Brayton
>> 
>> 
>> -- 
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>> Date: 10/18/05 ___
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>> To subscribe, unsubscribe, change options, or get password,
>> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>> 
>> Please note that messages sent to this large list cannot be
>> viewed as private.  Anyone can subscribe to the list and read
>> messages that are posted; people can read the Web archives;
>> and list members can (rightly or wrongly) forward the
>> messages to others.
>> 
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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Scarberry, Mark wrote:

  And doesn't the truthfulness of the site depend on what is meant by
evolution? If what is meant is a completely naturalistic process that
resulted in all that now exists with no guidance or intervention by God
(other than perhaps the setting of initial conditions), then evolution is
inconsistent with Catholic teaching, as I understand it, and with most
Protestant Christian views. 


The test of this would of course be whether the definition of evolution
used on that website is consistent with their position or not, and it
is. Here is the definition that the Understanding Evolution site uses:

The definition
Biological evolution, simply put, is descent with modification. This
definition
encompasses small-scale evolution (changes in gene frequency in a
population
from one generation to the next) and large-scale evolution (the descent
of
different species from a common ancestor over many generations)...

The central idea of biological evolution is that all life on
Earth shares a common
ancestor, just as you and your cousins share a common grandmother.
Through the process of descent with modification, the common
ancestor of life on Earth
gave rise to the fantastic diversity that we see documented in the
fossil record and
around us today. Evolution means that we're all distant cousins: humans
and oak trees,
hummingbirds and whales.

Evolution does not deal with "all that now exists", it deals only
with the source of biodiversity on Earth. Whether there was or was not
any guidance by God is outside of the definition of evolution and
outside of the ability of science to confrm or disconfirm. Yes, some
biologists do argue that evolution was not guided and I think that's a
logical inference from the evidence, but it's an inference from the
science, not a part of the scientific theory of evolution.

Ed Brayton




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Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Volokh, Eugene wrote:

  	Unless I'm mistaken, all the views noted on the site
(http://www.ncseweb.org/resources/articles/7445_statements_from_religiou
s_org_12_19_2002.asp#top) endorse the same family of religious positions
-- Judaism and Christianity are consistent with evolution.  Am I missing
some items on that page that express "the opposite points of view"?  My
sense is that "the range of opinions" given on that page is a range from
"Judaism is consistent with evolution" through "Protestantism is
consistent with evolution" to "Catholicism is consistent with
evolution," not a range of opinions that really captures the "opposite
points of view."
  


The NCSE resource page contains only those statements from various
denominations on the compatibility of evolution and their religious
beliefs, but that is appropriate because the reference is given
specifically to provide evidence for that descriptive statement. It is
intended to answer someone who takes the opposite position, and it does
not answer it by saying, "You're wrong". It answers that position by
making the accurate and purely descriptive statement that other people,
including many of the scientists involved in evolutionary research,
hold both positions to be true. They make that descriptive statement
and then link to the evidence that supports that description. Nowhere
in the text of the website is that position endorsed, only described as
evidence that religion and evolution are not inherently
incompatible. But they also acknowledge, in the text that I cited, that
some people hold religious views that are incompatible. That
alone, it seems to me, mitigates the concern over endorsement here.
Both views are described; neither are endorsed.

Ed Brayton


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RE: New lawsuit against U Cal Berkeley

[Scarberry, Mark]

And doesn't the truthfulness of the site depend on what is meant by
evolution? If what is meant is a completely naturalistic process that
resulted in all that now exists with no guidance or intervention by God
(other than perhaps the setting of initial conditions), then evolution is
inconsistent with Catholic teaching, as I understand it, and with most
Protestant Christian views. 

Mark S. Scarberry
Pepperdine University School of Law
 

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, October 18, 2005 1:58 PM
To: Law & Religion issues for Law Academics
Subject: RE: New lawsuit against U Cal Berkeley

Unless I'm mistaken, all the views noted on the site
(http://www.ncseweb.org/resources/articles/7445_statements_from_religiou
s_org_12_19_2002.asp#top) endorse the same family of religious positions
-- Judaism and Christianity are consistent with evolution.  Am I missing
some items on that page that express "the opposite points of view"?  My
sense is that "the range of opinions" given on that page is a range from
"Judaism is consistent with evolution" through "Protestantism is
consistent with evolution" to "Catholicism is consistent with
evolution," not a range of opinions that really captures the "opposite
points of view."

Eugene

Ed Brayton wrote:

> I think if the same website did not also acknowledge the 
> opposite points 
> of view, and do so in both cases in purely descriptive language, this 
> would be more likely. But in fact it does describe multiple religious 
> points of view and does not endorse any of them, merely describes the 
> different viewpoints and which ones conflict with what we science has 
> found and which ones do not. If it did not also acknowledge 
> that there 
> are religious viewpoints that are not compatible, their case would be 
> much stronger.
> 
> Bear in mind also that this is a website designed to help 
> teachers not 
> only teach evolution more effectively but also deal with 
> questions they 
> are likely to be asked by students (I am fortunate enough to 
> have seen 
> the website as it was being developed and know the folks who put it 
> together and it was conceived as a tool for training teachers; it has 
> since been expanded and made publicly accessible). If a student asks 
> whether evolution contradicts with religion, what possible 
> answer could 
> a teacher give other than something like, "Opinions vary. 
> Some religious 
> views are incompatible with it and some are not, but the fact 
> that there 
> are thousands of devoutly religious scientists who also work in the 
> field of evolution clearly means they aren't inherently at 
> odds with one 
> another"? The link to the statements from various religious 
> organizations was put there for teachers to see what the range of 
> opinions are, not for them to give to students.
> 
> Ed Brayton
> 
> 
> -- 
> No virus found in this outgoing message.
> Checked by AVG Anti-Virus.
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> Date: 10/18/05 ___
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> To subscribe, unsubscribe, change options, or get password, 
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RE: New lawsuit against U Cal Berkeley

[Volokh, Eugene]

Unless I'm mistaken, all the views noted on the site
(http://www.ncseweb.org/resources/articles/7445_statements_from_religiou
s_org_12_19_2002.asp#top) endorse the same family of religious positions
-- Judaism and Christianity are consistent with evolution.  Am I missing
some items on that page that express "the opposite points of view"?  My
sense is that "the range of opinions" given on that page is a range from
"Judaism is consistent with evolution" through "Protestantism is
consistent with evolution" to "Catholicism is consistent with
evolution," not a range of opinions that really captures the "opposite
points of view."

Eugene

Ed Brayton wrote:

> I think if the same website did not also acknowledge the 
> opposite points 
> of view, and do so in both cases in purely descriptive language, this 
> would be more likely. But in fact it does describe multiple religious 
> points of view and does not endorse any of them, merely describes the 
> different viewpoints and which ones conflict with what we science has 
> found and which ones do not. If it did not also acknowledge 
> that there 
> are religious viewpoints that are not compatible, their case would be 
> much stronger.
> 
> Bear in mind also that this is a website designed to help 
> teachers not 
> only teach evolution more effectively but also deal with 
> questions they 
> are likely to be asked by students (I am fortunate enough to 
> have seen 
> the website as it was being developed and know the folks who put it 
> together and it was conceived as a tool for training teachers; it has 
> since been expanded and made publicly accessible). If a student asks 
> whether evolution contradicts with religion, what possible 
> answer could 
> a teacher give other than something like, "Opinions vary. 
> Some religious 
> views are incompatible with it and some are not, but the fact 
> that there 
> are thousands of devoutly religious scientists who also work in the 
> field of evolution clearly means they aren't inherently at 
> odds with one 
> another"? The link to the statements from various religious 
> organizations was put there for teachers to see what the range of 
> opinions are, not for them to give to students.
> 
> Ed Brayton
> 
> 
> -- 
> No virus found in this outgoing message.
> Checked by AVG Anti-Virus.
> Version: 7.0.344 / Virus Database: 267.12.2/140 - Release 
> Date: 10/18/05 ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, 
> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
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> viewed as private.  Anyone can subscribe to the list and read 
> messages that are posted; people can read the Web archives; 
> and list members can (rightly or wrongly) forward the 
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> 
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RE: Speaking of endorsements

[Volokh, Eugene]

Harder to tell because the Chief wasn't an explicit about his
theory as Scalia was; but he did join Scalia's dissent, and the theory
of Scalia's dissent is that the historical sources that the Chief cites
support government endorsement of monotheism but not of Christianity.

As to my own answer, I really am torn.  I find a nonendorsement
model of the Establishment Clause to be normatively appealing; but I
think it may indeed be too vague to be administrable, even if limited to
government speech, and I also think that Scalia's historical argument is
quite powerful.  But that will get us to the whole
originalism/traditionalism vs. living Constitution debate that few of
us, I suspect, have time for right now (I certainly don't).

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of Alan 
> Brownstein
> Sent: Tuesday, October 18, 2005 1:05 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Speaking of endorsements
> 
> 
> What about under Rehnquist's opinion in Van Orden? And to 
> satisfy my own curiosity, what would your answer be Eugene?
> 
> Alan Brownstein
> 
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of 
> Volokh, Eugene
> Sent: Tuesday, October 18, 2005 11:10 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Speaking of endorsements
> 
>   I should think that the former is unconstitutional 
> under Scalia's approach, but the later would be permissible.
> 
> > Eugene's comment reminded me of a question I had been meaning
> > to ask after the Ten Commandments cases last term, but never 
> > got around to.
> > 
> > Under Scalia's and Rehnquist's approach to religious messages
> > cases, would it be unconstitutional for the U.S. to make the 
> > following proclamation and enact the following policy "The 
> > United States of America endorses Christianity as the one 
> > true faith. Accordingly, the government will only display 
> > religious messages on public property on its own behalf 
> > consistent with Christian beliefs."
> > 
> > Or, alternatively "The United States of America endorses the
> > belief that there is one God. Accordingly, the government 
> > will only display religious messages on public property on 
> > its own behalf consistent with monotheistic beliefs."
> > 
> > Alan Brownstein
> > UC Davis
> > 
> > 
> > 
> > 
> > Eugene wrote:
> > 
> > Yet it seems to me that the interpretation of the site
> > as endorsing a certain view on religious matters remains a 
> > quite plausible interpretation; and a court applying 
> > endorsement doctrine evenhandedly may well take the view that 
> > a reasonable person would adopt this interpretation, which 
> > would make the site unconstitutional.  I'm not at all sure 
> > that this is a good result, and perhaps this is further 
> > evidence of the difficulty that an endorsement test creates 
> > in a world where much speech (especially in education) is 
> > undertaken by government agents, and many debates are hard to 
> > engage in without the ability to say often controversial 
> > things about religious doctrine.  Nonetheless it strikes me 
> > as an eminently legally plausible result.
> > 
> > Finally, this all reminds me of one of my favorite
> > quotes on religion-and-the-law question, from Michael W. 
> > McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. 
> > Rev. 115, 150 (1992):
> > 
> > "Consider the following examples: (1) How would the
> > parochial school aid cases fare under the endorsement test? 
> > ... A significant segment of the population believes that the 
> > use of government funds to assist religious education is 
> > tantamount to putting priests on the payroll. On the other 
> > hand, granting funds to secular schools but not to equally 
> > qualified religious schools creates at least the appearance 
> > of disapproval (2) Does tax-exempt status convey a 
> > message of endorsement of churches? The government grants tax 
> > exemptions on the theory that exempt organizations provide 
> > benefits to the public. Including churches on this list 
> > implies that they are wholesome and beneficial 
> > institutions But what message would be conveyed by 
> > excluding churches from the class of tax-exempt charities? ... 
> > 
> > "Does exemption of religious organizations or of
> > religiously motivated individuals from a law of general 
> > applicability 'endorse' religion? Opponents of religious 
> > accommodations argue that '[s]pecial treatment for religion 
> > connotes sponsorship and endorsement' Justice O'Connor 
> > agrees that exemptions cause resentment, but holds that this 
> > resentment is 'entitled to little weight' because 
> > accommodations promote the 'values' of the Free Exercise 
> > Clause. Others, such as Professor Laycock, say that 
> > exemptions do not appear to endorse religion at all.
> > 
> > "I know all 

Re: New lawsuit against U Cal Berkeley

[Brad M Pardee]

Ed wrote on 10/18/2005 02:55:42 PM:

> If a student asks 
> whether evolution contradicts with religion, what possible answer
could 
> a teacher give other than something like, "Opinions vary. Some
religious 
> views are incompatible with it and some are not, but the fact that
there 
> are thousands of devoutly religious scientists who also work in the

> field of evolution clearly means they aren't inherently at odds with
one 
> another"

When I read this possible answer, everything from
"but the fact" on seems clearly tilted to support those who see
religion and evolution as compatible.  For this to be a responsible
and respectful answer, it would need to end with "and some are not".
 Whether that is necessary to fulfill constitutional obligations is
another question.

Brad___
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RE: Speaking of endorsements

[Alan Brownstein]

What about under Rehnquist's opinion in Van Orden? And to satisfy my own
curiosity, what would your answer be Eugene?

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, October 18, 2005 11:10 AM
To: Law & Religion issues for Law Academics
Subject: RE: Speaking of endorsements

I should think that the former is unconstitutional under
Scalia's approach, but the later would be permissible.

> Eugene's comment reminded me of a question I had been meaning 
> to ask after the Ten Commandments cases last term, but never 
> got around to.
> 
> Under Scalia's and Rehnquist's approach to religious messages 
> cases, would it be unconstitutional for the U.S. to make the 
> following proclamation and enact the following policy "The 
> United States of America endorses Christianity as the one 
> true faith. Accordingly, the government will only display 
> religious messages on public property on its own behalf 
> consistent with Christian beliefs."
> 
> Or, alternatively "The United States of America endorses the 
> belief that there is one God. Accordingly, the government 
> will only display religious messages on public property on 
> its own behalf consistent with monotheistic beliefs."
> 
> Alan Brownstein
> UC Davis
> 
> 
> 
> 
> Eugene wrote:
> 
>   Yet it seems to me that the interpretation of the site 
> as endorsing a certain view on religious matters remains a 
> quite plausible interpretation; and a court applying 
> endorsement doctrine evenhandedly may well take the view that 
> a reasonable person would adopt this interpretation, which 
> would make the site unconstitutional.  I'm not at all sure 
> that this is a good result, and perhaps this is further 
> evidence of the difficulty that an endorsement test creates 
> in a world where much speech (especially in education) is 
> undertaken by government agents, and many debates are hard to 
> engage in without the ability to say often controversial 
> things about religious doctrine.  Nonetheless it strikes me 
> as an eminently legally plausible result.
> 
>   Finally, this all reminds me of one of my favorite 
> quotes on religion-and-the-law question, from Michael W. 
> McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. 
> Rev. 115, 150 (1992):
> 
>   "Consider the following examples: (1) How would the 
> parochial school aid cases fare under the endorsement test? 
> ... A significant segment of the population believes that the 
> use of government funds to assist religious education is 
> tantamount to putting priests on the payroll. On the other 
> hand, granting funds to secular schools but not to equally 
> qualified religious schools creates at least the appearance 
> of disapproval (2) Does tax-exempt status convey a 
> message of endorsement of churches? The government grants tax 
> exemptions on the theory that exempt organizations provide 
> benefits to the public. Including churches on this list 
> implies that they are wholesome and beneficial 
> institutions But what message would be conveyed by 
> excluding churches from the class of tax-exempt charities? ... 
> 
>   "Does exemption of religious organizations or of 
> religiously motivated individuals from a law of general 
> applicability 'endorse' religion? Opponents of religious 
> accommodations argue that '[s]pecial treatment for religion 
> connotes sponsorship and endorsement' Justice O'Connor 
> agrees that exemptions cause resentment, but holds that this 
> resentment is 'entitled to little weight' because 
> accommodations promote the 'values' of the Free Exercise 
> Clause. Others, such as Professor Laycock, say that 
> exemptions do not appear to endorse religion at all.
> 
>   "I know all of these people to be reasonable observers, 
> well schooled in the values underlying the First Amendment. 
> That does not seem to help." 
> 
> 
> 
> 
> 
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, 
> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be 
> viewed as private.  Anyone can subscribe to the list and read 
> messages that are posted; people can read the Web archives; 
> and list members can (rightly or wrongly) forward the 
> messages to others.
> 
___
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or wrongly) forward the messages to others.

Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Volokh, Eugene wrote:


I would think that under existing Establishment Clause caselaw,
the challengers have a pretty decent argument (not open-and-shut -- very
little is open-and-shut under current Establishment Clause caselaw --
but pretty decent).

The site is not just conveying a secular viewpoint -- that the
theory of evolution is scientifically persuasive.  It is also, it seems
to me, conveying a viewpoint on a religious controversy: whether the
theory of evolution is consistent with (for instance) "the proper way to
interpret Holy Scripture" (to quote the first excerpt posted in the
compilation).  It is thus endorsing a certain view about the proper
interpretation of religious doctrine.
 



I think if the same website did not also acknowledge the opposite points 
of view, and do so in both cases in purely descriptive language, this 
would be more likely. But in fact it does describe multiple religious 
points of view and does not endorse any of them, merely describes the 
different viewpoints and which ones conflict with what we science has 
found and which ones do not. If it did not also acknowledge that there 
are religious viewpoints that are not compatible, their case would be 
much stronger.


Bear in mind also that this is a website designed to help teachers not 
only teach evolution more effectively but also deal with questions they 
are likely to be asked by students (I am fortunate enough to have seen 
the website as it was being developed and know the folks who put it 
together and it was conceived as a tool for training teachers; it has 
since been expanded and made publicly accessible). If a student asks 
whether evolution contradicts with religion, what possible answer could 
a teacher give other than something like, "Opinions vary. Some religious 
views are incompatible with it and some are not, but the fact that there 
are thousands of devoutly religious scientists who also work in the 
field of evolution clearly means they aren't inherently at odds with one 
another"? The link to the statements from various religious 
organizations was put there for teachers to see what the range of 
opinions are, not for them to give to students.


Ed Brayton


--
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___
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RE: Speaking of endorsements

[Volokh, Eugene]

I should think that the former is unconstitutional under
Scalia's approach, but the later would be permissible.

> Eugene's comment reminded me of a question I had been meaning 
> to ask after the Ten Commandments cases last term, but never 
> got around to.
> 
> Under Scalia's and Rehnquist's approach to religious messages 
> cases, would it be unconstitutional for the U.S. to make the 
> following proclamation and enact the following policy "The 
> United States of America endorses Christianity as the one 
> true faith. Accordingly, the government will only display 
> religious messages on public property on its own behalf 
> consistent with Christian beliefs."
> 
> Or, alternatively "The United States of America endorses the 
> belief that there is one God. Accordingly, the government 
> will only display religious messages on public property on 
> its own behalf consistent with monotheistic beliefs."
> 
> Alan Brownstein
> UC Davis
> 
> 
> 
> 
> Eugene wrote:
> 
>   Yet it seems to me that the interpretation of the site 
> as endorsing a certain view on religious matters remains a 
> quite plausible interpretation; and a court applying 
> endorsement doctrine evenhandedly may well take the view that 
> a reasonable person would adopt this interpretation, which 
> would make the site unconstitutional.  I'm not at all sure 
> that this is a good result, and perhaps this is further 
> evidence of the difficulty that an endorsement test creates 
> in a world where much speech (especially in education) is 
> undertaken by government agents, and many debates are hard to 
> engage in without the ability to say often controversial 
> things about religious doctrine.  Nonetheless it strikes me 
> as an eminently legally plausible result.
> 
>   Finally, this all reminds me of one of my favorite 
> quotes on religion-and-the-law question, from Michael W. 
> McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. 
> Rev. 115, 150 (1992):
> 
>   "Consider the following examples: (1) How would the 
> parochial school aid cases fare under the endorsement test? 
> ... A significant segment of the population believes that the 
> use of government funds to assist religious education is 
> tantamount to putting priests on the payroll. On the other 
> hand, granting funds to secular schools but not to equally 
> qualified religious schools creates at least the appearance 
> of disapproval (2) Does tax-exempt status convey a 
> message of endorsement of churches? The government grants tax 
> exemptions on the theory that exempt organizations provide 
> benefits to the public. Including churches on this list 
> implies that they are wholesome and beneficial 
> institutions But what message would be conveyed by 
> excluding churches from the class of tax-exempt charities? ... 
> 
>   "Does exemption of religious organizations or of 
> religiously motivated individuals from a law of general 
> applicability 'endorse' religion? Opponents of religious 
> accommodations argue that '[s]pecial treatment for religion 
> connotes sponsorship and endorsement' Justice O'Connor 
> agrees that exemptions cause resentment, but holds that this 
> resentment is 'entitled to little weight' because 
> accommodations promote the 'values' of the Free Exercise 
> Clause. Others, such as Professor Laycock, say that 
> exemptions do not appear to endorse religion at all.
> 
>   "I know all of these people to be reasonable observers, 
> well schooled in the values underlying the First Amendment. 
> That does not seem to help." 
> 
> 
> 
> 
> 
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, 
> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be 
> viewed as private.  Anyone can subscribe to the list and read 
> messages that are posted; people can read the Web archives; 
> and list members can (rightly or wrongly) forward the 
> messages to others.
> 
___
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Speaking of endorsements

[Alan Brownstein]

Eugene's comment reminded me of a question I had been meaning to ask
after the Ten Commandments cases last term, but never got around to.

Under Scalia's and Rehnquist's approach to religious messages cases,
would it be unconstitutional for the U.S. to make the following
proclamation and enact the following policy "The United States of
America endorses Christianity as the one true faith. Accordingly, the
government will only display religious messages on public property on
its own behalf consistent with Christian beliefs."

Or, alternatively "The United States of America endorses the belief that
there is one God. Accordingly, the government will only display
religious messages on public property on its own behalf consistent with
monotheistic beliefs."

Alan Brownstein
UC Davis




Eugene wrote:

Yet it seems to me that the interpretation of the site as
endorsing a certain view on religious matters remains a quite plausible
interpretation; and a court applying endorsement doctrine evenhandedly
may well take the view that a reasonable person would adopt this
interpretation, which would make the site unconstitutional.  I'm not at
all sure that this is a good result, and perhaps this is further
evidence of the difficulty that an endorsement test creates in a world
where much speech (especially in education) is undertaken by government
agents, and many debates are hard to engage in without the ability to
say often controversial things about religious doctrine.  Nonetheless it
strikes me as an eminently legally plausible result.

Finally, this all reminds me of one of my favorite quotes on
religion-and-the-law question, from Michael W. McConnell, Religious
Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 150 (1992):

"Consider the following examples: (1) How would the parochial
school aid cases fare under the endorsement test? ... A significant
segment of the population believes that the use of government funds to
assist religious education is tantamount to putting priests on the
payroll. On the other hand, granting funds to secular schools but not to
equally qualified religious schools creates at least the appearance of
disapproval (2) Does tax-exempt status convey a message of
endorsement of churches? The government grants tax exemptions on the
theory that exempt organizations provide benefits to the public.
Including churches on this list implies that they are wholesome and
beneficial institutions But what message would be conveyed by
excluding churches from the class of tax-exempt charities? ... 

"Does exemption of religious organizations or of religiously
motivated individuals from a law of general applicability 'endorse'
religion? Opponents of religious accommodations argue that '[s]pecial
treatment for religion connotes sponsorship and endorsement' Justice
O'Connor agrees that exemptions cause resentment, but holds that this
resentment is 'entitled to little weight' because accommodations promote
the 'values' of the Free Exercise Clause. Others, such as Professor
Laycock, say that exemptions do not appear to endorse religion at all.

"I know all of these people to be reasonable observers, well
schooled in the values underlying the First Amendment. That does not
seem to help." 






___
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: New lawsuit against U Cal Berkeley

[Volokh, Eugene]

I would think that under existing Establishment Clause caselaw,
the challengers have a pretty decent argument (not open-and-shut -- very
little is open-and-shut under current Establishment Clause caselaw --
but pretty decent).

The site is not just conveying a secular viewpoint -- that the
theory of evolution is scientifically persuasive.  It is also, it seems
to me, conveying a viewpoint on a religious controversy: whether the
theory of evolution is consistent with (for instance) "the proper way to
interpret Holy Scripture" (to quote the first excerpt posted in the
compilation).  It is thus endorsing a certain view about the proper
interpretation of religious doctrine.

One can, of course, interpret the site in other ways (as is
common in endorsement cases) -- for instance, one can interpret it as
not endorsing the material it posts, but rather simply saying that this
material is rhetorically useful to teachers who want to persuade
students (and the public) to be open to evolutionary theories.  "We may
not believe that this is the proper way of interpreting Holy Scripture,"
the inferred meaning would go, "and may not even believe that the
Scripture is Holy or that it's worth interpreting it.  But when you're
discussing things with people who care about Holy Scripture, this
argument may be rhetorically useful whether or not you or we believe in
it."  In fact, this may be the likelier guess as to the intentions of
the posters (though who knows for sure?), and as to the perceptions of
at least some of the readers -- but, presumably, not other readers.

Yet it seems to me that the interpretation of the site as
endorsing a certain view on religious matters remains a quite plausible
interpretation; and a court applying endorsement doctrine evenhandedly
may well take the view that a reasonable person would adopt this
interpretation, which would make the site unconstitutional.  I'm not at
all sure that this is a good result, and perhaps this is further
evidence of the difficulty that an endorsement test creates in a world
where much speech (especially in education) is undertaken by government
agents, and many debates are hard to engage in without the ability to
say often controversial things about religious doctrine.  Nonetheless it
strikes me as an eminently legally plausible result.

Finally, this all reminds me of one of my favorite quotes on
religion-and-the-law question, from Michael W. McConnell, Religious
Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 150 (1992):

"Consider the following examples: (1) How would the parochial
school aid cases fare under the endorsement test? ... A significant
segment of the population believes that the use of government funds to
assist religious education is tantamount to putting priests on the
payroll. On the other hand, granting funds to secular schools but not to
equally qualified religious schools creates at least the appearance of
disapproval (2) Does tax-exempt status convey a message of
endorsement of churches? The government grants tax exemptions on the
theory that exempt organizations provide benefits to the public.
Including churches on this list implies that they are wholesome and
beneficial institutions But what message would be conveyed by
excluding churches from the class of tax-exempt charities? ... 

"Does exemption of religious organizations or of religiously
motivated individuals from a law of general applicability 'endorse'
religion? Opponents of religious accommodations argue that '[s]pecial
treatment for religion connotes sponsorship and endorsement' Justice
O'Connor agrees that exemptions cause resentment, but holds that this
resentment is 'entitled to little weight' because accommodations promote
the 'values' of the Free Exercise Clause. Others, such as Professor
Laycock, say that exemptions do not appear to endorse religion at all.

"I know all of these people to be reasonable observers, well
schooled in the values underlying the First Amendment. That does not
seem to help." 


> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet
> Sent: Tuesday, October 18, 2005 6:56 AM
> To: Law & Religion issues for Law Academics
> Subject: New lawsuit against U Cal Berkeley
> 
> 
> Any thoughts on this:  
> http://insidehighered.com/news/2005/10/18/evolution .  It's a 
> report of 
> a lawsuit filed against U Cal Berkeley for maintaining a 
> web-site designed for high school teachers seeking 
> information on evolution (the site is 
> http://evolution.berkeley.edu/ ).  The complaint apparently 
> alleges that including a link on the web-site to a 
> compilation of statements by religious groups and leaders to 
> the effect that evolution is not incompatible with religious 
> belief violates the Establishment Clause.  The compilation 
> was assembled by the National Center for Science Education, 
> and is available at 
> http://ww

RE: "The Devil Went Down to Georgia"

[Alan Brownstein]

Title: Re: "The Devil Went Down to Georgia"








I think there is another problem here in
addition to issues of offense and the setting up of an alternative religion
that Doug describes. Arguably, the state is not simply passively reflecting the
secularization of a practice or image with a religious origin. It is actively
contributing to the dilution of the religious meaning of the image or practice.
With regard to images of Satan, the argument would be that the state
contributes to people not taking a supernatural force for evil seriously. The state
is debunking a supernatural reality by trivializing it. With regard to Santa
and the reindeer, the state dilutes the religious significance of Christmas by
describing it in commercial and spiritually empty terms. 

 

There is something of a chicken and the
egg problem here (how much does the state reflect private secularization of the
image and how much does it contribute to it). And as I said earlier, I doubt
courts would accept the argument that there is an Establishment Clause
violation in these situations. But I think part of the complaint here is
separate from the idea of establishing an evil religion. It has to do with the
state distorting the religious meaning of things. 

 

Alan Brownstein

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, October 17, 2005
8:52 AM
To: Law
 & Religion issues for Law Academics
Subject: RE: "The Devil Went
Down to Georgia"



 

    The general problem in
these cases is when to say that a practice or image with undoubtedly religious
origins has become so secularized that we can now ignore the religious
component, and let government sponsor the practice or use the image, even
though a minority still see it as religious.  It is not an easy problem.

 

    One plausible and
generally workable definition of religion is a claim about the
supernatural.  The devil is a supernatural figure; worship of the devil
could be a religion.  (Satanism is a religion, but those who profess it
rarely view it as worship evil.)  The general amused reaction to these
devil cases arises from the fact that hardly anyone among elites
takes devil images literally.  The song is meant as a tale or a joke;
the athletic mascots are meant to convey an image of a tough and dangerous
fighter.  Wake Forest, a seriously
Baptist school, is the Demon Deacons.  They obviously don't mean satanic
Deacons or devilish-in-any-religious-sense Deacons, and neither Duke nor Cal
Davis means for their Blue Devil mascot to be satanic.

 

    But if you do take these
references literally, it is setting up an alternate religion, a glorification
of the Devil.  Folks who take these references literally do not merely
claim offense to their religion; they claim establishment of an alternative and
evil religion.

 

    The same disparity
underlies the disputes over Halloween.  We might have similar disputes
about Valentine's Day, but the strictest separationists seem not to take it as
a literal invocation of St. Valentine.  A similar disparity in
perception underlies disputes about "secular" celebrations of
Christmas, where one side says lights or reindeer or even Christmas trees are
secular, and the other side says they are intrinsically tied up with a plainly
religious holiday.

 

    

 



 



Douglas Laycock

University of Texas
 Law School

727 E. Dean
  Keeton St.

Austin, TX  78705

   512-232-1341 (phone)

   512-471-6988 (fax)



 



 







From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein
Sent: Sunday, October 16, 2005
8:30 PM
To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics
Subject: RE: "The Devil Went
Down to Georgia"





It's not just songs that raise this
issue. The Davis High School football team is the Blue
Devils. In theory, this is supposed to refer to some highly decorated regiment
during World War I. But the insignia the school uses looks pretty much a
conventional image of the Devil  -- as in Satan.





 





Every few years, some Christian parents protest the name and
insignia. They do not receive a lot of support. (For what it is worth, I
supported them  -- but that did not help very much.) I tend to see the
issue the same way I see public school celebrations of Holloween (the problem
here is witches, not pumpkins). Some religious families find those activities
to be religiously offensive and problematic. I have no problem with Halloween,
but I think public schools should avoid gratutious programs that cause problems
for religious minorities in a community -- particularly when doing so will not
have any negative impact on the educational mission.





 





Drawing the line between rules of governmental etiquette in
a religiously diverse community and constitutional law isn't always clear.
But I doubt the Blue Devils will be held to violate the Establishment Clause. 





 





As for music, public school programs that include religious
music

Re: New lawsuit against U Cal Berkeley

[Ed Brayton]

Mark Tushnet wrote:

Any thoughts on this:  
http://insidehighered.com/news/2005/10/18/evolution .  It's a report 
of a lawsuit filed against U Cal Berkeley for maintaining a web-site 
designed for high school teachers seeking information on evolution 
(the site is http://evolution.berkeley.edu/ ).  The complaint 
apparently alleges that including a link on the web-site to a 
compilation of statements by religious groups and leaders to the 
effect that evolution is not incompatible with religious belief 
violates the Establishment Clause.  The compilation was assembled by 
the National Center for Science Education, and is available at 
http://www.ncseweb.org/resources/articles/7445_statements_from_religious_org_12_19_2002.asp#top.  
The link from the Berkeley web-site reads: What statements do 
different religious groups make on evolution?
The National Center for Science Education has collected statements 
from many different denominations and groups.
Read it here >> 
 




Yet another nuisance suit from Larry Caldwell, who is apparently trying 
for some sort of world record. Here is the actual text from the website 
that Caldwell alleges is unconstitutional:


Quote

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.

End quote

This is not a statement of belief, it is a statement of fact - most religious groups have no conflict with the theory of evolution (according to official doctrinal statements from the denominations) and many religious people feel that a deeper understanding of how nature operates, including evolution, enriches their faith. And there are thousands of scientists who are devoutly religious and also accept evolution. All facts, all easily documented, and none of this text takes a position on which position is correct, it merely points out that many religious people do accept evolution and therefore evolution and religion are not inherently incompatible. 

Surely there is no establishment clause violation in making a purely descriptive statement that is entirely true, any more than there would be in describing the beliefs of Mormons in an American history class or the beliefs of Muslims in a world history class. 


Ed Brayton






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New lawsuit against U Cal Berkeley

[Mark Tushnet]

Any thoughts on this:  http://insidehighered.com/news/2005/10/18/evolution .  It's a report of 
a lawsuit filed against U Cal Berkeley for maintaining a web-site designed for high school teachers seeking information on evolution (the site is http://evolution.berkeley.edu/ ).  The complaint apparently alleges that including a link on the web-site to a compilation of statements by religious groups and leaders to the effect that evolution is not incompatible with religious belief violates the Establishment Clause.  The compilation was assembled by the National Center for Science Education, and is available at 
http://www.ncseweb.org/resources/articles/7445_statements_from_religious_org_12_19_2002.asp#top.  
The link from the Berkeley web-site reads: What statements do different religious groups make on evolution?
	The National Center for Science Education has collected statements from 
many different denominations and groups.
Read it here >> 
 



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To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.