Seeing Government Purpose Through the Objective Observer's Eyes: The Evolution-Intelligent Design Debates
75 Pages Posted: 8 Nov 2005 Last revised: 21 Oct 2007
In October, 2004, the Dover, Pennsylvania School District became the first in the nation to adopt a policy requiring students studying evolution to be told about the concept of intelligent design. Soon thereafter, parents filed a lawsuit challenging the policy as violating the Establishment Clause. But, Establishment Clause doctrine is one of the most splintered, incoherent areas of the Court's jurisprudence - and even more so after the Court's June 2005 McCreary County v. ACLU decision. Read strictly, McCreary County imports the effects-endorsement objective observer into the government purpose inquiry. This subtle shift has significant ramifications: McCreary County changes the nature of the constitutional harm from an allegedly impermissible actual purpose to apparent purpose; results in an objective observer with a bizarrely expansive knowledge of issues of law but more limited knowledge of issues of fact; and requires de novo review throughout the circuits which previously were split on the proper standard of review for a government purpose inquiry. Analyzing McCreary County's meaning in the context of the intelligent design debates shows that while McCreary County's general focus on government purpose is helpful, the objective observer's perspective on government purpose does more doctrinal harm than good. Thus, courts should return the reasonable observer to the effects-endorsement aspect of the Establishment Clause analysis.
Keywords: Establishment clause, reasonable observer, objective observer, McCreary County, intelligent design, evolution, religion, endorsement test, Lemon test
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