Creationism in science classrooms (an argument for)

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My question to you is how does the Establishment Clause reach state policy on what gets taught in public schools without the Fourteenth Amendment.

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Unless the schools or the curriculum are controlled by the Federal government, then no, as I've accepted all along.

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The adopters of the First Amendment, including Madison, and the states who adopted it in the 1700s, fully understood that each state would be free to teach creationism in public schools if a state chose to do that. Robert would have been perfectly happy with that state of affairs. In fact, he has stated that communities should be able to decide issues of teaching creationism by simple vote.

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Except for the fact that some States had their own laws which forbade it. Robert wouldn't have been happy about that. Nor would I think that he would be happy about the First Amendment restrictions on the Federal Government - especially as the Federal government DOES get involved in education.

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Further the above was the law of the land until at least the early 1900s and at least arguably until 1947. Now it is pretty clear that school boards cannot teach creationism in schools. Robert does not like that and objects to those meddling 1900s SCt Justices who decided to apply the incorporation doctrine to the Establishment Clause when earlier Courts had refused to do so.

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And arguably it ceased to be the law of the land when the 14th Amendment was passed. Neither extreme tells the whole story. While the role of precedent shouldn't be ignored, we must also recognise that the courts interpret laws, they don't make them. A simplistic insistence that the law changed in 1947 misses that fact.More importantly, the principles Robert objects to go back to the Founding Fathers. Even if individual states could (or even did) act against those principles there is a far bigger story here than mere legal technicalities.

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Simplistic maybe, but perhaps supportable in an argument.

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It definitely overstates the importance of the courts. If the courts were solely bound by previous decisions, new legislation could never take effect. Nor is precedent taken as an absolute rule, nor are court decisions ever interpreted as making laws retroactive (a clear injustice, which would necessarily follow if the courts alone made law).To put everything on a court decision is simply wrong.

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Principles aren't laws and you've agreed that the law allowed states to act against those principles

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Again this is simply narrowing the questions before us and ignoring an important point by doing so. If the principles go back to the Founding fathers then upholding them can be argued as a perfectly good, even patriotic thing to do. Remember that even a less incorrect version of the argument has to argue that the verdict was improper and wrong.

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This is fine for details but misses the great legal point I'm talking about.

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There's a reason for that. NoNukes was trying to find something you got RIGHT, which is why your "legal point" got left out.But thanks for confirming that I was right to insist that I had adequately dealt with your actual argument.

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no one here has made a case to me of why my reasoning is wrong.

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That's just not true. As has been pointed out more than once the government IS permitted to take actions that happen to hinder religion if there is a valid secular purpose for their actions. We've got sound reasoning as to why that should be the case and legal precedents to back it up.

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True, but that did not happen in this case. After the 14th Amendment was ratified, and the incorporation argument failed in the 1870s, no new relevant law was enacted. You are certainly correct that courts, including the Supreme Court, are not bound by their own previous decisions. But they do give those decisions great respect.

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If you mean that the courts were NOT bound by previous decisions then you only help my case. Those previous decisions did not have the same power as legislation. On the other hand the Fourteenth Amendment WAS required.

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Actually, many court decisions are retroactively enforced because retroactivity is required to render justice. It is only laws that add new penalties or liabilities (ex post facto laws) that are constitutionally excluded from retroactive enforcement. For example, laws applying criminal liability can be revoked retroactively although they sometimes are not.

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Yet there would be a clear injustice in being hauled into court, facing all the costs of defence on the basis of a law that did not exist. The situation is as you describe not because my point is false, but because it is true.

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When the Supreme Court decides, its ruling is the law even if others believe that the Court has overstepped or is completely wrong. In a very real legal sense, the Supreme Court is always correct even when they are wrong. Once the Court rules, there is no legal recourse other than getting the Supreme Court to rule again or passing another law. In this case, Congress did not act again after the Supreme Court refused to incorporate the Establishment Clause, but the Supreme Court did rule again. In 1947.

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It is one thing to say that the Supreme Court may overstep its bounds. It is quite another to say that it has done so. And that is a case you have yet to try to make.Of course this is one of the places where principles really are important. It was principles that decided the Loving case, which few today would argue against.

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I'm not sure what you mean when you say the Fourteenth Amendment WAS required, but it is clear that the Supreme Court did not interpret the Fourteenth Amendment as incorporating the Bill of Rights against the states prior to 1890. Although I support incorporation, it is not clear to me that the wording of the Fourteenth Amendment requires it.

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It seems simple enough. There is no room for interpretation of a law that does not exist. The Supreme Court changing it's mind on that interpretation does not change that at all.

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The same injustice results whether a court invalidates a statute or rules against its own precedent. You still have to defend yourself in court and bear the costs. There is no distinction between court precedent and legislation in this regard

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On the contrary there, is a VERY important distinction, which goes directly to the point. The legislation must exist BEFORE anyone can be dragged into court. A court decision CANNOT exist until someone has been dragged into court. In the case of legislation then, the same injustice is not even possible.

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And in fact that's exactly what happened in Everson v. Board of Education and Brown v. Board of Education. In those cases, the defendant was forced to defend itself in court in situations where the plaintiff was asking for a change in the interpretation of the Fourteenth Amendment.

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Obviously it is NOT exactly what happened, since the 14th Amendment was passed before those cases were brought. Your claim could only be true if you ASSUME that court decisions are the whole of the law, which is precisely the point in dispute.

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Finally, I don't want to leave the impression that precedent is not binding.

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Of course it ISN'T binding in most cases. By my understanding the only binding precedent must come from a higher court in the same "chain of command".

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What's the relevance? I'm completely missing your point.

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The relevance is that you cannot be dragged into court on the basis of a law that does not exist, because the law must be passed by the legislature first !

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You are simply wrong on this point.

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For me to be wrong it must be the case that the 14th Amendment was not passed until after the case had been brought. As you accept that is not true. Perhaps you could argue that the interpretation in Brown was invalid but you haven't tried to argue that either. So you literally have no case.

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True, but on U.S. Constitutional issues, every federal and state court is in the Supreme Court's 'chain of command'. Situations not involving the Supreme Court are not relevant to our discussion.

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Which is very different from the assertion that "precedents are binding".You are also wrong to assert that cases where the Supreme Court is not involved are irrelevant. Cases never start in the Supreme Court, and a case may stop for reasons unrelated to the merits, before reaching the Supreme Court. Thus on your view it is entirely possible for a lower court to make up a law out of thin air. I obviously disagree.

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That's incorrect. Law does not have to be passed by the legislature first. There are plenty of examples of civil and criminal common law either do not have a statutory basis or were codified into statutes long after the laws were used to support criminal and civil offenses. For example, laws against embezzlement, arson, and larceny were common law offenses.

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Common law, however is not a valid counter-argument because it is based on precedent. No precedent, no common law. You still haven't got an example of a court inventing an entirely new law there.

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But more to the importantly, I don't see how your point is relevant. When a court changes its interpretation of a statute or provisional of law, then we have to deal with new law.

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The relevance is that it proves my position correct. The courts do not simply make up new laws out of thin air - as you admit, they INTERPRET the existing laws, as passed by the legislature.

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how me the relevance to this discussion. Aren't we discussing cases that did end up before the Supreme Court? Of what relevance is it to this discussion that Alabama courts are not bound by decisions made by the New York Court of Appeals? Or that one district court in California is not by by the decisions of another district court in the same state?

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I already explained it. And you're simply wrong to say that we're only talking about specific cases. We're talking about the general situation.

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I'm saying this is just a retreat of the courts under logical attacks like I do here.

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Saying it doesn't make it true.It was the position adopted by a court ruling against polygamy. So it certainly wasn't invented to stop Creationism in schools. And there are obvious sensible reasons to adopt it. Allowing anything just because somebody says it is part of their religion is obviously silly - and amounts to giving religions special privileges which is ALSO arguably against the First Amendment.

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Yet it changes nothing.

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It means that your interpretation of the law is not that adopted by the courts. It means that your claim that the ruling was invented in the mid-1900s to keep creationism out of schools is false. If you want to say that it was invented to ban Mormon polygamy in the late 1800s you'd have a much better case ! But your position would be far from logically certain even then.

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The great claim to censor creationism(s0 in schools is that it breaks a constitutional dictate.

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There is no censorship. Just a prohibition against teachers using science lessons to sabotage their pupil's science lessons by teaching them anti-scientific religious propaganda.

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There can be no support of the state for religious conclusions as true.
No establishment of religion is the words.
Well.
then i say they are in fact breaking this very law.

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And you are wrong. By the Constitution the courts have the responsibility of interpreting the law. The courts interpretation of the law allows the government to hinder or advance religion as the incidental effect of a law or policy adopted for a purely secular purpose - and therefore that is what the law says. If you disagree, you are wrong and that is all there is to it.

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They are making a establishment of religion by saying some religious ideas are false.

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So I guess we ought to teach that Piltdown Man was real to avoid upsetting the Scientologists ? Or do you think we can contradict their religion ?

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The great idea is that there is to be a separation of church and state. This is the line used against my side all the time. to be separate one must be separate.

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And they are. That's why your religion doesn't get the special support you are asking for.

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Can the state force a opinion upon students as the truth of christian doctrines.
YES OR NO!

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Of course it cannot (not that creationism is an essential doctrine of Christianity) . It can, however teach established science no matter how many religions it contradicts - which is not the same thing. Those who are prepared to learn the material can get trough the system without believing it.

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Then you are saying YES. The state can force a opinion upon students that certain Christian doctrines are false.

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No, I did not. The state is, however, entitled to teach the findings of science and if they contradict your religion, then too bad for your religion.

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Well if so then how can you say the state can't force upon students that certain Christian doctrines are true.
The law is about separation and not just separation of one from another.

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The same way that it says that the government doesn't have to allow polygamy just because some Mormon sects demand it. It's because the law IS about separation. The government cannot take actions BECUSE they help or hinder religions, but if it has a valid reason it may act in ways that happen to help or hinder religion. This has been explained to you many times.

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In short YES if it advances or hinders religion in teaching something then its okay.

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Wrong. It is only okay if the effect on religion is incidental.

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AMEN. So creationism can't be banned because it advances religion as a aftereffect to teaching an option for truth on origins.
Your making my case.

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Creationism is certainly NOT a valid scientific option so obviously this teaching has no place in science class. Where would it go ? Teaching it as an "option" would also not permit teaching it as the truth. So you re making MY case for ME.