This one requires some set-up.

Eric Hedin is an assistant professor of physics at Ball State University. Last year, he was accused of teaching intelligent design, and of making disparaging remarks about non-Christian religions, in a science seminar that he was teaching. Some students complained, and the situation came to the attention of Jerry Coyne. Jerry made a big fuss about it at his blog and wrote letters to Ball State. Eventually the university forced Hedin to stop doing what he was doing, and they issued a strong statement that intelligent design was religion and therefore had no place in science classes. You can read the statement here

In other words, there was a happy ending.

Jerry's view was that Hedin's activities constituted a state endorsement of religion, but I am skeptical. Public universities are not the same as public elementary, middle and high schools, so it is not clear that the case law on teaching creationism in pre-college schools applies directly to universities. I'm not aware of any cases where this question has been litigated. That said, there are several cases where a professor was teaching something objectionable, the university told him to knock it off, and the professor then sued on the grounds that in some way his rights had been violated. In all of the cases of which I am aware, the finding was that the university was well within its rights to behave as it did.

This all happened last year. The Discovery Institute, which, for anyone who is new around here, is the primary advocacy group pushing intelligent design, was not amused. They have written some angry letters, and some Republican (of course) legislators in the state are now trying to make trouble for Ball State. This was all reported in this article from the Muncie Star Press. In the article, Discovery Institute Vice-President John West is quoted as follows:

“Ball State ought to be careful,” West said. “I think their mishandling of this could turn into a much bigger deal. Certainly, we are not going away. The speech code against intelligent design is vague and too broad and may not be being applied evenhandedly. We determined through public documents one science class is covering intelligent design in order to bash it. If they allow that, it's tantamount to state endorsement of an anti-religious view.”

There is obviously a lot to criticize in that little missive, but it's really the last line we are interested in today. Jerry Coyne points out what is so revealing about West's statement:

As those readers pointed out, this is an explicit admission by the Discovery Institute that Intelligent Design (ID) is a religious point of view, for “bashing it” is “tantamount” to being “anti-religious.” That’s an admission that they've avoided making, as they claim that ID is not religion, but pure science.

Quite right, and it's a contradiction that many ID critics have noted. On the one hand, the Discovery Institute swears up and down that ID is just science, and gets very cross with anyone who suggests otherwise. But anyone who criticizes ID is immediately accused of being anti-religion. Of course, the reality is not hard to discern. ID is a set of very poor scientific arguments that are promoted relentlessly because they are seen as a vehicle for bringing religion into science classes.

End of set-up. The real subject for today is this post, by Discovery Institute blogger Joshua Youngkin. His goal is to explain why West's statement, which is obviously an admission that ID is all about religion, is actually no such thing. Youngkin writes:

Is Coyne right? Is this an admission from Discovery Institute that intelligent design is religion? No, it is not. Why not? Because, in short, the case law on the establishment clause of the First Amendment (which covers the area of life we're talking about now) generally looks to the state actor's (e.g., BSU administration) motive and purpose for acting as they act. So, for example, if BSU administrators want to offer a course bashing intelligent design because they believe it is religion, and because they are hostile to religion, then that motivation when put into effect might constitute to a reasonable observer (e.g., a hypothetical student in the class, as determined by a court) state endorsement of anti-religion, which in turn arguably constitutes a violation of the establishment clause of the First Amendment. That is, the law that governs this area of life cares about what's going on inside the minds of state employees when they do what they do. In this case, it does not care whether intelligent design really is religion, as Coyne seems to think. It, again, only cares what state employees think it is, particularly when that thinking is part of state employees' motive or purpose for, say, promoting or bashing religion on state property using state resources.

This, sadly, is not correct. The motivation behind a state action is not relevant at all to determining its constitutionality, at least not directly. You cannot go into court and argue that a state action is unconstitutional because it was motivated by anti-religious fervor. (Not if you expect to win, at any rate.) A state action can have both a religious (or anti-religious) intent and also a religious (or anti-religious) effect and still be constitutional.

The current legal standard for adjudicating these claims is the so-called Lemon test, from the 1971 Supreme Court case Lemon v. Kurtzman. The test has three prongs, the first of which is most relevant for assessing Youngkin's claim. This prong says that to be constitutional, the state action must have a secular legislative purpose. Of course, you can always just make up a secular purpose to obscure the religious intent of the action. So, subsequent case law has established the principle that the given secular purpose must be legitimate, and not just a sham.

This is the place where the motivation behind the action might have some indirect relevance to determining its constitutionality. Evidence that the action was motivated by religious concerns might also constitute evidence that the publicly-given secular purpose is just a sham. Even in that case, however, the action's unconstitutionality has nothing to do with its motivation, but is instead the result of its not having a legitimate secular purpose.

This is precisely what played out in the Dover trial in 2005. The school board in that case had mandated that a statement supportive of intelligent design be presented to high school science students. The secular purpose of this action was, according to the board, to present their students with the best, modern scientific information. On its face, that's a legitimate purpose. At trial, the plaintiffs presented scientific testimony to show that ID was appalling as science and historical testimony to show that the origins of ID were all about the legal defeats suffered by its predecessor, creationism. But they also presented evidence about the internal deliberations of the board, showing that their concerns were overwhelmingly religious in nature, and had little to do with presenting the best science to students. The totality of this evidence convinced the judge that the board's stated secular purpose was just a sham and that really there was no legitimate secular purpose behind the board's action.

With that in mind, let's revisit Youngkin's hypothetical. Imagine a shadowy cabal of university administrators who decide they want to use their science classes as a tool for bashing religion. Towards that end, they decide that they are going to offer a course that really goes to town on intelligent design. As long as what actually plays out in class is a calm, measured, discussion in which the professor says something like, “Proponents of intelligent design make certain scientific arguments. These arguments are worth addressing because they are so prevalent, but they are poor for the following reasons...” then the course would not be unconstitutional. In this case, the secular purpose of presenting the best science is plainly not a sham, rendering irrelevant any concerns about the motivations behind the course.

Incidentally, the second prong of the Lemon test says that the primary effect of the state action cannot be to advance or hinder religion. Secondary effects are, once more, irrelevant. So even if the administrators specifically wanted to bash religion, and even if the course had the secondary effect of making some students question their faith, that still would not be enough to show that it is unconstitutional. That there is a legitimate secular purpose behind the course (to present the best science) and that the primary effect has noting to do with religion (that effect being to leave students properly informed about the state of science), renders all other concerns moot. (Leaving aside the third prong of the Lemon test, for the purposes of this discussion.)

Obviously, the ID folks would not agree with my opinions about what is, and is not, a sham, but that is irrelevant. Applying abstract legal tests to specific cases is always going to be a judgment call, which, indeed, is why we have judges in the first place.

Youngkin goes on to provide a statement from West himself, clarifying the intent of his quote in the article:

Although the reporter generally quoted me accurately in the article, in this particular instance he left out some important context. I made clear that I was focusing on BSU's claim that intelligent design is religion. My argument was that if this is BSU's claim, then BSU has to be consistent in how it applies its view when it comes to regulating speech of its faculty. If, according to BSU, endorsing intelligent design is tantamount to endorsing religion, then according to BSU's own standard, attacking intelligent design would be tantamount to attacking religion. My point is that BSU can't have it both ways.

In making this argument, West can avoid the charge that he was carelessly admitting that intelligent design was religion. It is, however, a ridiculous argument. If the Discovery Institute wants to sue Ball State for offering a course critical of ID, then they would have to explain to a judge why the purpose or primary intent of the course was anti-religious. Given the many adamant statements by ID's leading defenders that it is all about science and has nothing to do with religion, they might find that a tough case to make. That BSU's administrators were hypothetically motivated by anti-religious fervor would be neither here nor there.

Furthermore, you can have it both ways. No one is denying that ID folks make scientific assertions. Refuting those assertions plainly has nothing to do with religion, and is clearly a legitimate purpose in a science class. Claiming that ID is religion is just shorthand for saying that it's scientific arguments are so bad that it is reasonable to look at the motivations behind the people making them, and one does not have to look too hard to see that those motivations are entirely religious and political).