Unconstitutional Stickers?

UCLA Law Professor Stephen Bainbridge points to fellow Yale Law Professor Stephen Carter's Christianity Today essay Sticker Shock.

It is getting harder and harder to tell the difference between the separation of church and state and the elevation of state over church. The doctrine of separation, which some scholars call a peace treaty, is at its best when the church acts in one sphere of authority and the state acts in another. The doctrine is at its worst when the state uses its considerable power to sterilize every trace of religious activity or language. Then, the doctrine is less a peace treaty than war by other means.

How is the war being waged?

[L]et us consider the recent decision of a Georgia federal court. Three weeks after Christmas, the judge struck down an effort by the Cobb County board of education to lend balance to the treatment of human origins. Specifically, the board had required that the following sticker be placed in certain science texts: "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."

Of course, the statement is literally true, and no serious scientist would dispute it. After all, nobody now living on Earth was present when any evolution actually occurred. On the other hand, nobody doubts that the court's conclusion is true: The board only inserted the statement into the books to meet the objections of Christian parents who believe in the literal truth of the Genesis creation account. The court, and the many commentators who lauded its decision, argued that by compromising with unhappy Christian parents, the school board in effect took a religious position on a disputed issue.

Not so fast. One of the great virtues of politics is the possibility of compromise. But one of the difficulties with much litigation on church-state issues is that it is uncompromising and, in that sense, radical.

Radicals find it hard to compromise.

But, whatever one's view on that controversy, it seems reasonable to enforce a central rule: The state should not, without very strong reason, interfere with the religious choices of parents. Where the state feels it must do so—for example, by teaching evolution in the science curriculum—a cautionary sticker of the sort struck down in Cobb County seems a reasonable compromise between church and state.

When reasonable compromise becomes unconstitutional, it is time to worry that perhaps the peace treaty is being violated.

As I've mentioned before, W's greatest legacy will be the judges he appoints.

It's sad that this would be true, but the imperial judiciary needs to be reigned in.

Our Legislative Branch has given much power to the Judicial Branch through their inaction, and it will take the Executive Branch to right the listing ship.