Transatlantic Zeppelin

John Roberts, the Supreme Court’s soon-to-be Chief Justice, learned in grade school that God created humans as told in the Bible’s creation story. But the teaching of creationism is not coming soon to a public school near you.

Throughout this week’s confirmation hearings, Roberts repeated his belief in the Court’s long-held practice of ‘letting the decision stand,’ or following the precedents of previous courts. That answer, while perfectly acceptable, left Democrats fearing a wide berth for conservative interpretations of gray areas in abortion rights, affirmative action, disabled rights, and religion in schools.

At least on teaching creationism in schools, however, the Court’s record over the past three decades is well-settled: intelligent design, creation science, creationism—-or whatever the euphemism du jour—-has no place in public schools. There is almost no gray area.

Roberts may well move the court to the right on gray-area issues like abortion rights. The right to “privacy”—-the basis of Roe v. Wade (1973)—-is never mentioned in the Constitution, although Roberts says he believes in such a right.

By contrast, the Court’s decisions on creationism in the classroom are so well-settled that the Court would have to reverse itself completely—-a rare occurrence—-to find any way of allowing creationism to nestle into public classrooms.

The rulings of judges-to-be are about as predictable as next month’s weather, but we can be sure that spring does not overnight become autumn, and Roberts is unlikely to sway the Court’s distaste for creationism.

The Court’s hostility towards creationism statutes is deeply-rooted. In 1971, the Court established the so-called “Lemon test,” which determines if a law violates the First Amendment’s prohibition on government creating an “establishment of religion.”

Fifteen years later, the court used the Lemon test to strike-down Louisiana’s Balanced Treatment Act, which demanded schools that teach evolution also teach “creation science” (Edwards v. Aguillard, 1986).

The Lemon test asks three questions of a law concerning the establishment of religion. The law must have a “clear secular purpose”; it must “neither advance nor inhibit religion”; and it must not cause government to be “excessively entangled” in religion.

A law that fails any one of the three tests is unconstitutional. “Creation science” and its derivatives were found to fail not just one test, but all three tests.

The Court’s reasoning was fairly simple. Try finding a secular purpose for teaching Adam & Eve, or its watered-down equivalents that assert that an “intelligent designer” created life. No matter how heavily veiled, creationism, intelligent design, and the rest are usually the pet project of religious fundamentalists, and the Court has seen through it.

For example, the book that popularized the term “intelligent design”—-Of Pandas and People (1991)—-was backed by a Texas religious group, according to The Textbook League, a California textbook-review newsletter. Ordinary folk are not exactly protesting to have their children taught “intelligent design” any more than other religious counterfactuals like flat-earthism and geocentrism.

The Court has also understood that “creation science” is not science but rather religious propaganda. “Out of many possible science subjects taught in the public schools,” noted Justice Brennan’s Edwards decision, makers of Louisiana’s creationism law “chose to affect the teaching of one scientific theory that historically has been opposed by certain religious sects.”

Edwards placed an almost-airtight prohibition on creationism in the classroom, and the Court’s more recent decisions provide little wiggle room for a Roberts court to try to erode Edwards.

“The Supreme Court has decided to ‘grandfather’” religious references in public, argues Paul Mirengoff, the Akin Gump lawyer who co-writes the conservative Powerlineblog.com. “That means leaving references to [religion] on the coins and the old buildings but beating back new references.”

Since creationism statutes have been struck down since the 1986 Edwards decision, based on the earlier Lemon test, it is unlikely that a court could find reason to “grandfather” them into the acceptable realm of government mixing with religion.

It is possible that a slick pro-evolution campaign could emerge from some backwoods hamlet, which could correct some of the more egregious problems in Louisiana’s writing of its Balanced Treatment Act. The Louisiana Act was struck down in part because the Legislature overplayed its hand by building-in legal protections for those who teach creationism and mandating the development of teaching materials for creationism but not evolution.

A better-written law might comport more closely with the Edwards decision, but it is difficult to fathom how a creationism law could pass all three prongs of the Lemon test.

John Roberts may have grown up learning that God commands that he created man, but like most Catholic schoolboys, he did not become a theologian. If Roberts “lets the decision stand,” Christian beliefs about man’s creation will remain reserved for study in Sunday School.

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