Re: Madison on Abridge and Prohibit
Professor Laycock, The First Amendment eviseration of national congressional or governmental power over both religion and speech in terms of either establishment of religion or prohibiting of the free exercise thereof and the abridging of speech is not questioned. Madison's point was Congress had no such power under the religion commandments of the Constitution. Regardless, let the record show, my question which stands unanswered is the meaning of the two different words "prohibiting" and "abridging." I rest my case. Your effort was admirable, but I will continue to promote my position, which I consider supported by examples I routinely use, such as, Jefferson's letter to the Danbury Baptists, Madison's "Detached Memoranda," and the unanimous decision in Reynolds v. U.S., as well as others. I will not pursue the point further on religion.law. It has been a pleasure discussing the issue. Thanks to the attorney who encouraged me to join your listserv and to all of you for allowing my input. You have helped strengthen my position, but I now need to use my time in other ways. Gene Garman, M.Div. americasrealreligion.org Douglas Laycock wrote: You can't duck by pointing to the Article I part of Madison's argument and ignoring the First Amendment part. The structure of his argument was that speech and religion were equally protected by the lack of any Article I power to regulate them, and that the First Amendment could not be read to reduce the equality of that protection. So his premise was equal lack of Article I power, but his conclusion was equal treatment in the FirstAmendment. We now know the premise was wrong; exploring the full implications of Article I powers led Congress to discover many ways to get at speech and religion under powers that did not mention speech or religion explicitly. But the premise was widely assumed when the First Amendment was drafted, and the later failure of the premise does not do much to undermine Madison'scontemporary interpretation of the First Amendment. And he did speak directly to "abridge" and "prohibit." He argued that the difference between "prohibiting" and "abridging" is entirely parallel to the difference between "abridging" and "respecting," which the Federalists claimed enabled them to make laws "respecting" freedom of speech, including the Sedition Act.He was rejecting the Federalistdistinction, so his parallel plainly requires him to reject both distinctions, and the appeal of his argument at the time is precisely that he thought it would be unthinkable to much of his audience to distinguish between "prohibiting" and "abridging." Quoting just the most specific part now, without the larger argument that gives it context and inadvertently gave a means of avoiding the issue: Fourth. If the words and phrases in the amendment are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press under the limitation that its freedom be not abridged, the same argument results from the same consideration for a power over the exercise of religion, under the limitation that its freedom not be prohibited. For if Congress may regulate the freedom of the press, provided they do not abridge it, becuase it is said only "they shall not abridge it," and is not said, "they shall make no law respecting it," the analogy of reasoning is conclusive that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it; because it is said only "they shall not prohibit it," and is not said, "they shall make no law respecting, or no law abridging it." (emphasis in original). The General Assembly were governed by the clearest reason, then, in considering the Sedition Act, which legislates on the freedom of the press, as establishing a precedent that may be fatal to the liberty of conscience; and it will be the duty of all, in proportion as they value the security of the latter, to take the alarm at every encroachment on the former. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Gene Garman Sent: Tuesday, November 22, 2005 7:59 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination Professor Laycock, James Madison did discuss the establishment and free exercise clauses in his Report on the Virginia Resolutions and explained the obvious, that is, the First Amendment was a limitation on the power of the national government, specifically Congress. Regardless of any wording of the First Amendment in respect to abridging or prohibiting, the First Amendment specifically restricted the national Congress and did not give Congress a power to legislate or regulate on the subject of
Baylor
Interesting piece from Mother Jones magazine about Baylor and the law school: http://www.motherjones.com/news/feature/2005/12/professing_faith.html Ruthann Robson Professor of Law City University of New York (CUNY) School of Law 65-21 Main Street Flushing, NY 11367 USA 718.340.4447 [EMAIL PROTECTED] ___ 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.
RE: Kansas and Intelligent Design: A Twist
I think I agree with both Ed and Doug. But I have a question about the content of the category of statements in between Doug's dashes -- claims about the supernatural, about the existence and nature of God, about God's desires for humans. Those are the exclusively religious statements, out of the domain of science (and therefore out of the government's ability to promote or disapprobate). Of course, this whole fight was started because many people thought claims about the origins of human life on this planet belonged on that list, but evolution changed that. (Those people can still climb the ladder -claims about the origin of the universe are still, at this point, out of science's domain.) But why are claims about the supernatural outside the domain of science? Science's standard commitment to naturalism entails a rejection of the supernatural, which is certainly a claim about the supernatural. And science can directly investigate the supernatural. Take the perhaps-sound-but-everyone-has-trouble-believing-them experiments allegedly showing prayer has effects on unknowing subjects that are unexplainable by naturalistic phenomena. (I won't go into the experiments here, but you can find them in Kent Greenawalt's piece, Establishing Religious Ideas: Evolution, Creationism, and Intelligent Design, 17 Notre Dame J.L. Ethics Pub. Poly 321, 322 (2003), and his book, Does God Belong in the Public Schools?) Science could come back at those experiments and investigate supernatural phenomena directly, right? It could investigate the efficacy of prayer, run some double-bind experiments, and conclude something like: Prayer has no empirically demonstrable, statistically significant, this-world effects. Such findings, like the findings of evolution, could then be taught as true by the government. The realm of the purely religious -- the stuff between Doug's dashes -- seems always shrinking. Surely it won't disappear. (Even if science runs experiments showing prayer has no this-world effects, for example, the question of whether it has other-worldly effects would remain.) But I understand why this frightens a lot of people. Chris From: Douglas Laycock [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Kansas and Intelligent Design: A Twist Date: Tue, 22 Nov 2005 15:32:14 -0600 I agree. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton Sent: Tuesday, November 22, 2005 3:20 PM To: Law Religion issues for Law Academics Subject: Re: Kansas and Intelligent Design: A Twist Douglas Laycock wrote: Well, yes and no. Ed's examples are all cases where religions make claims about the natural world: claims within the domain of science to investigate and within the domain of government to respond to. When religion makes claims that are more exclusively religious -- claims about the supernatural, about the existence and nature of God, about God's desires for humans -- then it is true that government cannot say those claims are false. I well recognize that the examples between the dashes are a first approximation and not an adequate definition. That's a reasonable distinction. But ID is clearly in the first camp and not the second and therefore to teach that it is false would not be an EC problem. Ed Brayton ___ 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.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.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;
Re: Kansas and Intelligent Design: A Twist
Christopher C. Lund wrote: I think I agree with both Ed and Doug. But I have a question about the content of the category of statements in between Doug's dashes -- "claims about the supernatural, about the existence and nature of God, about God's desires for humans." Those are the exclusively religious statements, out of the domain of science (and therefore out of the government's ability to promote or disapprobate). Of course, this whole fight was started because many people thought "claims about the origins of human life on this planet" belonged on that list, but evolution changed that. (Those people can still climb the ladder -"claims about the origin of the universe" are still, at this point, out of science's domain.) But why are "claims about the supernatural" outside the domain of science? Science's standard commitment to naturalism entails a rejection of the supernatural, which is certainly a claim about the supernatural. This isn't accurate. Science does not have a commitment to naturalism in the sense that you imagine here, as a rejection of the supernatural. There is a very important distinction between methodological naturalism (MN) and philosophical naturalism (PN). Science requires the first, not the second. As a matter of methodology, science rules out supernatural causes and it does so because it must, because supernatural causes cannot be predicted or controlled and are therefore not testable. But that doesn't mean it rules out the existence of the supernatural as a matter of conclusion. The mere fact that so many scientists are theists is enough to establish that fact. And science can directly investigate the supernatural. Take the perhaps-sound-but-everyone-has-trouble-believing-them experiments allegedly showing prayer has effects on unknowing subjects that are unexplainable by naturalistic phenomena. (I won't go into the experiments here, but you can find them in Kent Greenawalt's piece, Establishing Religious Ideas: Evolution, Creationism, and Intelligent Design, 17 Notre Dame J.L. Ethics Pub. Poly 321, 322 (2003), and his book, Does God Belong in the Public Schools?) Science could come back at those experiments and investigate supernatural phenomena directly, right? It could investigate the efficacy of prayer, run some double-bind experiments, and conclude something like: Prayer has no empirically demonstrable, statistically significant, this-world effects. Such findings, like the findings of evolution, could then be taught as true by the government. There is a distinction between investigating claims of supernatural causation and actually investigating supernatural causation as well. For instance, if someone makes the claim that they have an amulet with magic powers that gives them the ability to find flowing water (typically called "dowsing") underground, that claim can be tested. But does that actually disprove the power of the amulet? No, because one can always excuse away the results as being the will of whatever entity is behind the magic. Perhaps the magic amulet does not want to be discovered and hides its magic when under investigation. The supernatural can never be falsified. The most we can ever say is that the claimed effects do not show up under rigorous testing standards. The realm of the purely religious -- the stuff between Doug's dashes -- seems always shrinking. Surely it won't disappear. (Even if science runs experiments showing prayer has no this-world effects, for example, the question of whether it has other-worldly effects would remain.) But I understand why this frightens a lot of people. That much is certainly true. Ed Brayton ___ 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.
RE: Kansas and Intelligent Design: A Twist
I understand why science frightens (I'm not sure this is the right word) some religious people too. But the ability of science to threaten (again, I'm not sure this is the right word either) religion is surely over-stated. To use Chris Lund's example, science might be able to test the efficacy of prayer -- when the prayers at issue seek divine intervention that changes the course of natural events, such as the progression of a terminal illness. But most prayers express different messages. They express praise, gratitude, repentance, and promises. When people pray for help from G-d, it is often for help in finding the strength or wisdom to deal with their problems. And, of course, they pray for their souls and the souls of others. I doubt science can test the efficacy of such prayers because these prayers are not directed at producing a particular material result. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher C. Lund Sent: Wednesday, November 23, 2005 7:06 AM To: religionlaw@lists.ucla.edu Subject: RE: Kansas and Intelligent Design: A Twist I think I agree with both Ed and Doug. But I have a question about the content of the category of statements in between Doug's dashes -- claims about the supernatural, about the existence and nature of God, about God's desires for humans. Those are the exclusively religious statements, out of the domain of science (and therefore out of the government's ability to promote or disapprobate). Of course, this whole fight was started because many people thought claims about the origins of human life on this planet belonged on that list, but evolution changed that. (Those people can still climb the ladder -claims about the origin of the universe are still, at this point, out of science's domain.) But why are claims about the supernatural outside the domain of science? Science's standard commitment to naturalism entails a rejection of the supernatural, which is certainly a claim about the supernatural. And science can directly investigate the supernatural. Take the perhaps-sound-but-everyone-has-trouble-believing-them experiments allegedly showing prayer has effects on unknowing subjects that are unexplainable by naturalistic phenomena. (I won't go into the experiments here, but you can find them in Kent Greenawalt's piece, Establishing Religious Ideas: Evolution, Creationism, and Intelligent Design, 17 Notre Dame J.L. Ethics Pub. Pol'y 321, 322 (2003), and his book, Does God Belong in the Public Schools?) Science could come back at those experiments and investigate supernatural phenomena directly, right? It could investigate the efficacy of prayer, run some double-bind experiments, and conclude something like: Prayer has no empirically demonstrable, statistically significant, this-world effects. Such findings, like the findings of evolution, could then be taught as true by the government. The realm of the purely religious -- the stuff between Doug's dashes -- seems always shrinking. Surely it won't disappear. (Even if science runs experiments showing prayer has no this-world effects, for example, the question of whether it has other-worldly effects would remain.) But I understand why this frightens a lot of people. Chris ___ 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.
McConnell Not McDonnell
Kent Greenawalt's recent article on Religion and the Rehnquist Court (99 Northwestern L.Rev. 145,161) contains a very funny typo. He is talking about potential Bush SCOTUS nominees, and he mentions "the much, and desevedly, admired writings of Michael McDonnell" Ouch! Heads must be rolling at Northwestern!Rick DuncanRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! FareChase - Search multiple travel sites in one click. ___ 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.
Thanksgiving issue
I once came across an article dealing President Jackson refused to make proclamations of Thanksgiving, but I cannot find any thing using the Web. Can anyone provide a cite? Bob O'Brien NTMail K12 - the Mail Server for Education ___ 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.
RE: Madison on Abridge and Prohibit
If you ever do respond directly to the matter, Ill forward it to Mr. Garman. Larry Darby -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Wednesday, November 23, 2005 11:25 AM To: Law Religion issues for Law Academics Subject: RE: Madison on Abridge and Prohibit The post below, although it claims victory,is utterly nonresponsive to Madison's express rejection of any distinction between respecting, abridging, and prohibiting. 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 Gene Garman Sent: Wednesday, November 23, 2005 8:25 AM To: Law Religion issues for Law Academics Subject: Re: Madison on Abridge and Prohibit Professor Laycock, The First Amendment eviseration of national congressional or governmental power over both religion and speech in terms of either establishment of religion or prohibiting of the free exercise thereof and the abridging of speech is not questioned. Madison's point was Congress had no such power under the religion commandments of the Constitution. Regardless, let the record show, my question which stands unanswered is the meaning of the two different words prohibiting and abridging. I rest my case. Your effort was admirable, but I will continue to promote my position, which I consider supported by examples I routinely use, such as, Jefferson's letter to the Danbury Baptists, Madison's Detached Memoranda, and the unanimous decision in Reynolds v. U.S., as well as others. I will not pursue the point further on religion.law. It has been a pleasure discussing the issue. Thanks to the attorney who encouraged me to join your listserv and to all of you for allowing my input. You have helped strengthen my position, but I now need to use my time in other ways. Gene Garman, M.Div. americasrealreligion.org Douglas Laycock wrote: You can't duck by pointing to the Article I part of Madison's argument and ignoring the First Amendment part. The structure of his argument was that speech and religion were equally protected by the lack of any Article I power to regulate them, and that the First Amendment could not be read to reduce the equality of that protection. So his premise was equal lack of Article I power, but his conclusion was equal treatment in the FirstAmendment. We now know the premise was wrong; exploring the full implications of Article I powers led Congress to discover many ways to get at speech and religion under powers that did not mention speech or religion explicitly. But the premise was widely assumed when the First Amendment was drafted, and the later failure of the premise does not do much to undermine Madison'scontemporary interpretation of the First Amendment. And he did speak directly to abridge and prohibit. He argued that the difference between prohibiting and abridging is entirely parallel to the difference between abridging and respecting, which the Federalists claimed enabled them to make laws respecting freedom of speech, including the Sedition Act.He was rejecting the Federalistdistinction, so his parallel plainly requires him to reject both distinctions, and the appeal of his argument at the time is precisely that he thought it would be unthinkable to much of his audience to distinguish between prohibiting and abridging. Quoting just the most specific part now, without the larger argument that gives it context and inadvertently gave a means of avoiding the issue: Fourth. If the words and phrases in the amendment are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press under the limitation that its freedom be not abridged, the same argument results from the same consideration for a power over the exercise of religion, under the limitation that its freedom not be prohibited. For if Congress may regulate the freedom of the press, provided they do not abridge it, becuase it is said only they shall not abridge it, and is not said, they shall make no law respecting it, the analogy of reasoning is conclusive that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it; because it is said only they shall not prohibit it, and is not said, they shall make no law respecting, or no law abridging it. (emphasis in original). The General Assembly were governed by the clearest reason, then, in considering the Sedition Act, which legislates on the freedom of the press, as establishing a precedent that may be fatal to the liberty of conscience; and it will be the duty of all, in proportion as they value the security of the latter, to take the alarm at every encroachment on the former. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone)
Re: Kansas and Intelligent Design: A Twist
We do not ban teaching that illness is caused by spiritual malaise or misalignment with the essence of the universe or any of a huge number of non-germ theories. That is the more close analogy to ID -- first causes or causes outside the realm of scientific explanation.I recall being taught the "shrunken apple" theory of mountain formation -- before we understood plate techtonics. Wrong as the shrunken apple theory is, I doubt anyone bothers to ban it -- or any number of obsolete teachings. They just select/approve books which reflect more current understandings from which to teach.Besides, the problem is not that ID is wrong -- it could even in some version be correct - -there might be a creator god out there -- it is just that it is not science -- and so it is wrong as a scientific explanation of evolution.It is that which can be limited -- not the teaching in general of controversial and even wrong ideas.SteveOn Nov 23, 2005, at 2:43 PM, Christopher C. Lund wrote:I don't want to get into an argument defending ID. Others do it better. And I don't find ID persuasive. But I wonder what will happen to those who do. Let me ask people on the listserv this next question: Should the government force private religious schools to explicitly deny ID? (If it is like banning the phlogistonistic view of chemistry or teachings contrary to the germ theory of disease, should we even hesitate?)Chris -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere."Martin Luther King, Jr., (1963) ___ 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.
Re: Kansas and Intelligent Design: A Twist
Christopher C. Lund wrote: I think Ed and I are agreeing, although initially I may have put things sloppily. We agree that science cannot reject supernaturalism altogether (how could it disprove that prayer has no other-worldly effects?), but it can investigate claims about the supernatural (the phrase I used before and the phrase Doug was using), as soon as those claims begin to involve the material world. Just to clarify, and I apologize if I'm misreading or being pedantic, I don't think it's enough to say that we can test claims about the supernatural as soon as those claims begin to involve the natural world. I think it has to be stated more rigorously than that. The supernatural claim has to make specific predictions about how the natural world will be affected. Science can then test the predicted effect. James Randi does this all the time, for example. But a broader claim - say, that God answers prayer - is immune to such testing precisely because it involves the willful act of a supernatural entity that we can neither control nor predict. If someone prays that a loved one would recover from a disease and they do, that is viewed as confirmation of the efficacy of prayer; if they don't, then that is viewed simply as the will of God that the loved one not recover. If you can't make a prediction, you can't truly test the idea because any outcome would fail to disconfirm it. I don't want to get into an argument defending ID. Others do it better. And I don't find ID persuasive. But I wonder what will happen to those who do. Let me ask people on the listserv this next question: Should the government force private religious schools to explicitly deny ID? (If it is like banning the phlogistonistic view of chemistry or teachings contrary to the germ theory of disease, should we even hesitate?) I think it is self-evident that the government should not force private religious schools to explicitly deny ID, or any other belief they have. Private religious schools should be allowed to teach whatever they want, as they are private. However, that doesn't mean, for instance, that government-run universities can't set standards of admission that take into account what is being taught and whether it adequately prepares a student for college level work (as in the current lawsuit against the UC system). Ed Brayton ___ 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.
RE: Kansas and Intelligent Design: A Twist
Government has not mandated that religious schools deny ID or any form of creationism, but science programs at the state universities have no need of that sort of information, and so they deny entrance to kids trained in those topics. Not quite. They deny entrance to kids not trained in real science. If they were saying it is not enough that you took a standard biology course, you also have to have not learned anything about ID in some other course, this would be a very different case. 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 Ed DarrellSent: Wednesday, November 23, 2005 1:58 PMTo: Law Religion issues for Law AcademicsSubject: Re: Kansas and Intelligent Design: A Twist Let the marketplace of ideas sort it out. If ID has any validity in science, it will be in demand -- and if so, the private schools that teach it will have graduates in the forefront of that science who will be highly in demand. The story of Semmelweiss might remind us that sometimes religious ideas can have practical applications, and when they do the practical applications will manifest themselves. Isn't that the issue in the suit against the University of California system? Those companies and agencies who employ graduates of the biology programs of the California state universities (both UC and CS) also have no need of ID, which is one of the drivers of the requirement of the schools, I suspect. Agricultural giants like ADM and pharmaceutical leaders like Genentech have little use for ideas that don't or can't produce marketable products, and they hire accordingly from the ranks of university graduates. Unless government steps in to shore up ID, ID will fade away if it is not workable science. That is true of almost all science applications. Ed Darrell Dallas "Christopher C. Lund" [EMAIL PROTECTED] wrote: I don't want to get into an argument defending ID. Others do it better. And I don't find ID persuasive. But I wonder what will happen to those who do. Let me ask people on the listserv this next question: Should the government force private religious schools to explicitly deny ID? (If it is like banning the phlogistonistic view of chemistry or teachings contrary to the germ theory of disease, should we even hesitate?)Chris ___ 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.
Kansas and Intelligent Design: A Twist
I agree with Ed Brayton's posts on the limits of science. My take on the line between science and religion in the Intelligent Design debate is this: the defined task of science is to produce the best naturalistic explanation possible. That explanation is random variation and natural selection (fully elaborated, with multiple mechanisms of selection). That explanation is sufficient to explain the origin of species, and that explanation does not assume purpose or guidance or design. That is as much as science can say.The point that most people miss is this: Neither does that explanation deny or preclude purpose or guidance or design. It says only that purpose, guidance, and design are not part of the naturalistic (scientific) explanation. If some people believe that God designed and guided evolution and gave it purpose, that's a supernatural (religious) claim that science can neither confirm nor deny. Ditto if some people believe that God intervened at critical junctures to keep evolution on track, or that the apparently random variations in individuals are not random at all but result from God manipulating DNA strands. Ditto even for the people who believe that God planted false evidence that seems to support evolution in the fossil record (and now in the genomes of various species)to test our faith or confuse us or mislead us. (There is a New Testament verse said to support this theory.) None of that is science, none of it is falsifiable, and science has nothng to say about any of it.When folks like Richard Dawkins say that evolution is purposeless, he has either left science and started talking about religion -- he believes God did not guide evolution and that it has no purpose -- or he is speaking carelessly and what he really means is that purpose is not part of the scientific model. This sloppy usage, if that is what it is, does real harm to the public discourse. Purpose is no part of the scientific model, but neither does science negate religious claims of supernatural purpose or intervention.This clarification, even when understood, comforts some believers but not all. Just as some believers want the support of the state for their faith, some also want the support of science. Even a model that says evolution could have happened without divine guidance is too threatening. Thatreaction follows partly from a tendency in some parts of the society to treat science as real and religionas not real, or at least doubtful. I understand why secularists view science as more real than religion, but why would believers view it that way? Especially why would those who claim to be among the most intense believers view science as more real than religion? It seems to me as an outsider that the demand for scientific confirmation of religion is more a sign of weak faith than of strong faith. Of course there is originalist precedent in Christian tradition for seeking empirical confirmation of faith -- the Apostle Thomas did not believe he was talking to the resurrected Jesus until he put his hand in Jesus' side and felt the wound. But that story is no precedent for creating a wound that wasn't there, or otherwise phonying up the "scientific" confirmation. Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)-Original Message-From: Christopher C. Lund [mailto:[EMAIL PROTECTED]]Sent: Wednesday, November 23, 2005 3:06 PMTo: Douglas LaycockSubject: RE: Kansas and Intelligent Design: A TwistI realized, at some point in this colloquy, that I'm carrying around a bit of suspicion of the left and increased concern for the right. I can't help but think it's probably related to the time I spent at AUFrom: "Douglas Laycock" [EMAIL PROTECTED]Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.eduTo: "Law Religion issues for Law Academics" religionlaw@lists.ucla.eduSubject: RE: Kansas and Intelligent Design: A TwistDate: Wed, 23 Nov 2005 14:40:09 -0600Government has not mandated that religious schools deny ID or any form of creationism, but science programs at the state universities have no need of that sort of information, and so they deny entrance to kids trained in those topics. Not quite. They deny entrance to kids not trained in real science.If they were saying it is not enough that you took a standard biology course, you also have to have not learned anything about ID in some other course, this would be a very different case.Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED]] On Behalf Of Ed DarrellSent: Wednesday, November 23, 2005 1:58 PMTo: Law Religion issues for Law AcademicsSubject: Re: Kansas and Intelligent Design: A TwistLet the marketplace of ideas sort it out. If ID has any validity in
Re: Kansas and Intelligent Design: A Twist
I think Doug has stated this well. But perhaps it understates the challenge presented by evolution -- if science can explain so much, then what is left? It also understates the challenge to the Biblical literalists -- if evolution is correct, then the Biblical story is wrong. If the Biblical story is wrong in any detail, it is all suspect. If it is suspect, then what? This is the line I've heard not only from young-earther creationists, but also from those who accept the geological and astronomical data and information and see in the Biblical creation stories another sort of truth or perhaps allegorical truth. To them, evolution challenges even that remaining confidence.I understand the all or nothing viewpoint -- though I reject it. Just read Prof. Rick Duncan's recent sig for this attitude.SteveOn Nov 23, 2005, at 4:34 PM, Douglas Laycock wrote:I agree with Ed Brayton's posts on the limits of science. My take on the line between science and religion in the Intelligent Design debate is this: the defined task of science is to produce the best naturalistic explanation possible. That explanation is random variation and natural selection (fully elaborated, with multiple mechanisms of selection). That explanation is sufficient to explain the origin of species, and that explanation does not assume purpose or guidance or design. That is as much as science can say.[snip]This clarification, even when understood, comforts some believers but not all. Just as some believers want the support of the state for their faith, some also want the support of science. Even a model that says evolution could have happened without divine guidance is too threatening. -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"If a man empties his purse into his head, no man can take it away from him. An investment in knowledge always pays the best interest."Benjamin Franklin ___ 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.
Re: Kansas and Intelligent Design: A Twist
Douglas Laycock wrote: I agree with Ed Brayton's posts on the limits of science. My take on the line between science and religion in the Intelligent Design debate is this: the defined task of science is to produce the best naturalistic explanation possible. That explanation is random variation and natural selection (fully elaborated, with multiple mechanisms of selection). I know this is nitpicky, and a tad bit off the subject of this list, but I would add here that not all mechanisms of evolution are selective. The question of just how ubiquitous natural selection is as the dominant means of fixing traits in a population is a matter of some disagreement among evolutionary biologists, but all would agree that there are non-adaptive mechanisms, like genetic drift, that are also a factor. How much of a factor is still a bit up in the air, but it's clear that not all traits have to be selected for in order to be passed along. When folks like Richard Dawkins say that evolution is purposeless, he has either left science and started talking about religion -- he believes God did not guide evolution and that it has no purpose -- or he is speaking carelessly and what he really means is that purpose is not part of the scientific model. This sloppy usage, if that is what it is, does real harm to the public discourse. Purpose is no part of the scientific model, but neither does science negate religious claims of supernatural purpose or intervention. I agree with this, and I have often criticized Dawkins and others. It's reasonable to say that we don't see any evidence of purpose or teleology in evolution, that reading intent or purpose into the evidence is superfluous. But then insisting that there is no guidance is also superfluous. From the standpoint of biological research, it's just not a relevant question. The evidence is clear that life has evolved and that we share a common ancestor with other species. Whether that was intended or not, we simply can't know because there are too many contingent factors. Consider this: had the dinosaurs not gone extinct as the (likely) result of the Chixilub meteor impact 65 million years ago, human beings would almost certainly not have evolved as mammals would have continued to be confined to small ecological niches due to predation. Human existence, then, is likely contingent on that event. Can we rule out the notion that said meteor was sent intentionally by God to facilitate the eventual evolution of human beings? Of course we can't. Science can answer the "how" question; it can't answer the "why" question. Ed Brayton ___ 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.
RE: Kansas and Intelligent Design: A Twist
Agreed. 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 Ed BraytonSent: Wednesday, November 23, 2005 4:59 PMTo: Law Religion issues for Law AcademicsSubject: Re: Kansas and Intelligent Design: A Twist Douglas Laycock wrote: I agree with Ed Brayton's posts on the limits of science. My take on the line between science and religion in the Intelligent Design debate is this: the defined task of science is to produce the best naturalistic explanation possible. That explanation is random variation and natural selection (fully elaborated, with multiple mechanisms of selection). I know this is nitpicky, and a tad bit off the subject of this list, but I would add here that not all mechanisms of evolution are selective. The question of just how ubiquitous natural selection is as the dominant means of fixing traits in a population is a matter of some disagreement among evolutionary biologists, but all would agree that there are non-adaptive mechanisms, like genetic drift, that are also a factor. How much of a factor is still a bit up in the air, but it's clear that not all traits have to be selected for in order to be passed along. When folks like Richard Dawkins say that evolution is purposeless, he has either left science and started talking about religion -- he believes God did not guide evolution and that it has no purpose -- or he is speaking carelessly and what he really means is that purpose is not part of the scientific model. This sloppy usage, if that is what it is, does real harm to the public discourse. Purpose is no part of the scientific model, but neither does science negate religious claims of supernatural purpose or intervention.I agree with this, and I have often criticized Dawkins and others. It's reasonable to say that we don't see any evidence of purpose or teleology in evolution, that reading intent or purpose into the evidence is superfluous. But then insisting that there is no guidance is also superfluous. From the standpoint of biological research, it's just not a relevant question. The evidence is clear that life has evolved and that we share a common ancestor with other species. Whether that was intended or not, we simply can't know because there are too many contingent factors. Consider this: had the dinosaurs not gone extinct as the (likely) result of the Chixilub meteor impact 65 million years ago, human beings would almost certainly not have evolved as mammals would have continued to be confined to small ecological niches due to predation. Human existence, then, is likely contingent on that event. Can we rule out the notion that said meteor was sent intentionally by God to facilitate the eventual evolution of human beings? Of course we can't. Science can answer the "how" question; it can't answer the "why" question. Ed Brayton ___ 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.
RE: Bronx Household of Faith v New York Schools
I'm not sure I can add much to the discussion at this point -- it sounds like Alan and I have set out our positions pretty fully. I wonder, though, whether it might be helpful to consider the practical dimensions of Alan's proposal: What's the distinction between religious speech that is just speech (selling Bibles, distributing Bibles for free, sermons, singing hymns, televangelism, etc.) and that may not be preferred by the government, given the Free Speech Clause, and religious speech that is worship and thus could be preferred by the government? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein Sent: Monday, November 21, 2005 4:47 PM To: Law Religion issues for Law Academics Subject: RE: Bronx Household of Faith v New York Schools A relatively brief response that does not do justice to Eugene's thoughtful comments -- but it is all I have time for right now. Eugene and I agree in a sense on at least one point, I think. We agree that under his interpretation of the free speech and religion clauses, religion specific accommodations of religious practices with some expressive dimension to them are unconstitutional. I think that's wrong, in significant part because I think religion is different than speech both in terms of what it actually is and for constitutional purposes -- because we are trying to accomplish different things with the religion clauses and the free speech clause and treating religion as speech distorts the distinction between those purposes. We have gone over this in the past on many prior posts. I recognize that there is an overlap in life and in constitutional law between religion and speech, so that there are some situations in which the best approach is to evaluate the promotion or regulation of religious speech under the speech clause. But the overlapping tail should not wag the dog. I look at a lot of religious practices holistically, not in terms of specific component parts -- which may involve speech to a greater or lesser degree. To me, a religious service is something different than a gathering of people who talk and sing. And I believe the constitution recognizes that difference. Those who think differently will agree with Eugene and reject religion specific accommodations of services and expressive rituals on free speech grounds. I assume that they would also reject religion specific accommodations of houses of worship and the operation of houses of worship. As for the government official who delivers a sermon in his official capacity, I think Eugene is correct that this would constitute a prohibited establishment of religion. I see no contradiction between that conclusion and the conclusion that the regulation of a similar sermon by a private individual would be reviewed under the free speech clause. The Establishment Clause and the Free Exercise serve different purposes and the lines courts draw between speech and what would be considered the establishment of religion differ in important ways from the lines courts draw between speech and what would be considered the exercise of religion. Thus, for example, the Court's cases seem to suggest rightly or wrongly that only obligatory rituals are protected by the free exercise clause. There is no comparable requirement under the Establishment Clause. Perhaps my earlier post was not as clear as I thought it was, so let me try to be clearer this time around. The question is whether we will characterize government conduct promoting or regulating religious expressive activities as accommodating the free exercise of religion, endorsing or establishing religion, or abridging freedom of speech. For any specific state action promoting or regulating religious expressive activities, we have to choose among alternatives. Some government expression of religious messages will be held to be endorsements or promotions of religion in violation of the establishment clause or they will be held to be permissible government speech. (I think Eugene agrees with this -- leaving open the important question of where we would draw that line.) Some religion specific government accommodations of religious expressive activities will be upheld as permissible accommodations of the exercise of religion or they will be struck down as content or viewpoint discriminatory regulations of speech. (This, I believe, is where Eugene and I disagree.) I think this latter situation is like the Establishment Clause problem. For establishment clause purposes, there are some situations where even though what the government is doing can be considered speech in some sense, for constitutional purposes it constitutes the establishment of religion and can be treated differently than other government speech. Similarly, I suggest, that for
