(For previous posts in this series, see here.)

While all the strategizing in the wake of the 1987 Edwards v. Aguillard case was being done by the intelligent design creationism (IDC) advocates under the auspices of the Discovery Institute, three other cases all set legal precedents for what would happen in Dover.

In 2000, a case involving religion in schools but not directly involving evolution reached the US Supreme Court. This was Santa Fe Independent School District v. DOE 530 U.S. 290. This was a case where a challenge was made to a policy where the school district had a practice of one student, who had been elected as Santa Fe High School’s student council chaplain, delivering a prayer over the public address system before each home varsity football game.

In a 6-3 ruling, the court ruled that such prayers were unconstitutional. For its ruling, the court relied on an alternative reading of the purpose and effect prongs of the Lemon test that was written by Justice Sandra Day O’Connor in the 1984 case of Lynch v. Donnelly involving the display of a nativity scene by a municipality. O’Connor articulated what is now called the ‘endorsement test’. She said:

The second and more direct infringement [of the establishment clause] is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Writing for the majority in the 2000 Santa Fe case, Justice John Paul Stevens used that same language to overrule the policy of student-led prayer at football games:

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

This precedent was also used in the Dover case.

The second important case was also one that did not deal explicitly with evolution but had implications for Dover. It was the much publicized 2004 Elk Grove Unified School District. v. Newdow 542 U.S. 1 in which a parent Michael Newdow had challenged his daughter’s school for including the phrase “Under God” in the Pledge of Allegiance. The US District Court ruled against him but this was overruled by the Ninth Circuit Court of Appeals who found in his favor. The case was then appealed to the US Supreme Court.

The Supreme Court reversed the Appeals Court verdict 8-0 but on mixed grounds (Justice Scalia did not take part in the case). Five justices said that due to a family dispute about whether the father or mother had custody of the child and the standing to sue, the courts had no jurisdiction to review the case. Thus they did not go into the merits of the case and decide whether saying the phrase “Under God” in schools was constitutional or not. Justices Rehnquist, O’Connor and Thomas agreed with the verdict overturning the Appeals Court decision but said that the Supreme Court should have reviewed the case on the merits. They then proceeded to do so and said that the practice was constitutional.

In her concurring opinion on the ruling, Justice Sandra Day O’Connor said the decision on whether the government is involved in an impermissible endorsement of religion had to be made from the viewpoint of a ‘reasonable observer’ who “must embody a community ideal of social judgment, as well as rational judgment. . .must be deemed aware of the history of the conduct in question, and must understand its place in our Nation’s cultural landscape.”

The third case actually dealt with evolution and arose in 2002 when a school board in Cobb County, GA inserted stickers into their biology textbooks that informed students that “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.”

The sticker policy was challenged and in January 2005, in Selman v. Cobb County School District, US District Court judge Clarence Cooper ruled the policy unconstitutional, applying again the Lemon test.

He said that the sticker policy passed the ‘purpose’ prong of the Lemon test:

[A]fter considering the additional arguments and evidence presented by the parties and evaluating the evidence in light of the applicable law, the Court remains convinced that the Sticker at issue serves at last two secular purposes. First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution. For the foregoing reasons, the Court concludes that the Sticker satisfies the first prong of the Lemon analysis.

However, he said that the sticker failed the ‘effect’ prong and this made it unconstitutional and thus the stickers had to be removed. He used Justice Stevens’ language about endorsement in the 2000 Santa Fe case, and Justice O’Connor’s appeal to how a ‘reasonable observer’ might perceive the action, as part of his justification.

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders.

All these legal precedents set the stage for the most recent court battle over the teaching of evolution, in which IDC came under direct scrutiny. This occurred in Dover, PA in 2005 in the case of Kitzmiller v. Dover, which I will begin to examine in the next post in this series.

POST SCRIPT: What topics are conservatives most interested in?

Some time ago, I wrote about how some people are trying to create an alternate reality on the internet so that people will not find their beliefs routinely challenged. Remarkably, such people consider Wikipedia and YouTube as part of this threatening reality, and created alternatives called Conservapedia and GodTube.

So now that time has passed, what topics are conservatives most interested in finding out about? Conservapedia has published the statistics. The results are interesting.