Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]

Selman Sent Back to District Court Drawing Board - Analysis

The Eleventh Circuit recently handed down an opinion [pdf] of high interest to evolution vs. intelligent design groupies like myself, in the case of Selman v. Cobb County. In short, the District Court for the Northern District of Georgia conducted a bench trial in late 2004 to answer whether the Cobb County School Board could apply stickers that singled out evolution as especially deserving of skepticism. Here’s the language:

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.

The district court decided the case under Lemon v. Kurtzman (1971), which is still the most commonly used judicial vehicle for deciding establishment clause cases. The Lemon Test requires that the law 1) has a valid secular purpose; 2) does not have the primary effect of either advancing or inhibiting religion; and 3) must not result in an “excessive entanglement” between the government and religion.

Here, in sharp contrast to the leading evolution cases (Epperson, Edwards) where the avowed secular purpose was deemed to be a sham, the district court found a valid secular purpose. The Epperson and Edwards courts never even reached the effects and entanglement prongs, so the district court in Selman ventured into unchartered waters when it invalidated the stickers on the effects prong (the court also invalidated on the entanglement prong, because the school board “appearing to take a position” in the religion vs. science dispute). But the crux of the court’s Lemon analysis relied on the effects prong, concluding that the singling out of evolution had the effect of advancing religion. Specifically, the court said:

“[T]his Sticker misleads students regarding the significance and value of evolution in the scientific community for the benefit of the religious alternatives. By denigrating evolution, the School Board appears to be endorsing the well-known prevailing alternative theory, creationism or variations thereof, even though the Sticker does not specifically reference any alternative theories.”

On appeal, the Eleventh Circuit does not like what it sees. Ostensibly, they vacated and remanded because the factual record below was conflicting, with explicit instructions on questions they want cleared up. Clearing up could either mean that the district court conducts a retrial, or rewriting an opinion with the conflicting data pruned out; or something in between. But the opinion does more than demand copy editing–at 43 pages, there are many lines to read between, and some of them quite foreboding.

The most ominous sign appears in the introduction, where the Judge Carnes states the “touchstone of establishment clause cases” to be “Government Neutrality.” Despite that the opinion is largely and ostensibly concerned with fixing the factual record below, the appearance of “government neutrality” in this context is quite telling.

To start with, Neutrality theory, taken to its extreme, would permit government to accommodate religion to whatever degree it deems necessary, so long as they do not favor one religion or the other. This runs contrary to Lemon, which has held many laws constitutionally impermissible that had the effect of advancing ‘religion’ generally.

More specifically, the Eleventh Circuit’s cite to “Government Neutrality” on page 4 is to Justice Souter’s majority opinion in McCreary County, Ky. v. ACLU (2005) (which in turn was a cite to Epperson), which is the recent case where a Kentucky courthouse’s Ten Commandments display was struck down. Judge Carnes may be employing some judicial sleight of hand here, because Justice Souter’s use of Neutrality has to be viewed in a context unwelcome to Carnes’ probable reading of neutrality.

Souter resorted to an inquiry into neutrality as part of a larger inquiry into secular purposeLemon‘s first prong. Souter did not suggest that Neutrality is an end in itself. Neutrality language in establishment clause cases traces back to Everson, upon which Lemon was partly built, so it is not emerging from the blue. But the argument that the establishment clause is entirely satisfied upon a finding of government neutrality is new. This argument finds its strongest support in Zelman v. Simmons-Harris, 536 US 639 (2002), where Chief Justice Rehnquist essentially green-lit school vouchers, solely under a Neutrality theory.

Judicial dissatisfaction with the Lemon test is also not new. On the continuum of establishment clause tests—from the least to the most searching—neutrality and Lemon sit in stark opposition. Somewhere in between the two reside O’Connor’s endorsement test, and Kennedy’s coercion test. (note: sitting a thousand miles from the center is Justice Thomas, who views the establishment clause as a federalism provision, and thus not incorporable through the Fourteenth Amendment, and thus not applicable to the states at all). So judicial dissatisfaction with the Lemon test is not new. And while there has existed a majority of justices willing to undercut Lemon for years–Rhenquist, Thomas, Scalia, Kennedy (who would replace Lemon with a Coercion test), and O’Connor (who would replace Lemon with an Endorsement test)–Lemon remains with us. But with Alito replacing O’Connor (Roberts for Rehnquist is a wash, and not just on religion issues), there are likely four justices who would sign on to a Neutrality agenda (technically three, with Thomas surely concurring), leaving Kennedy’s Coercion test sitting precariously in the middle for the time being.

So, with Neutrality gaining grounds fast, we turn to examine the makeup of the Eleventh Circuit panel, which was extremely disfavorable to the respondents. Judge Carnes, who wrote the opinion to vacate and remand, let the cat out of the bag at oral argument:

Carnes … responded that evolution — which he described as a “collection of theories, speculations and hypotheses” — was far less settled than the “theories of gravity, relativity, and Galilean heliocentrism, whatever that is.”

In other words, Judge Carnes doesn’t even know what Gelilean heliocentrism is (it is the sun-centric view of our solar system), but is certain that it is more settled than evolution. Perhaps Judge Carnes can write the sticker himself and save the school district some money. His statement is especially ironic in light of his remanding over factual problems below, while creating facts from whole cloth at the appeal level. The issue underlying the constitutional issue in Selman is whether evolution is deserving of preferential scrutiny—because if so, the sticker language is perfectly reasonable. Since Judge Carnes has already glibly decided this linchpin issue (an issue that Kitzmiller v. Dover put to rest going the opposite way), Selman’s case appears doomed before this panel, at least.

As for the second judge, William Pryor–President Bush’s controversial recess appointee–this passage should supply all the context necessary to see where his ideology might lead him on this issue. :

At an Alabama “Save the Commandments” rally in 1997 [in defense of ex state judge Roy Moore], he said, “God has chosen, though his son Jesus Christ, this time and this place for all Christians … to save our country and save our courts.”

It’s unclear to me where the third judge, Frank Hull, sits on this issue; but her position is somewhat moot, since it seems clear which way 2/3 of the panel leans.

Then, with Neutrality’s gain at Lemon’s expense, and a panel majority of predisposed appeals court judges in mind, let’s return to the opinion’s introductory paragraph, which very subtlely tips its hand:

The difficulty of an uncertain record and missing evidence is especially vexing in an Establishment Clause case because in this area of the law the devil is in the details. Facts and context are crucial and they, of course, must be determined from the evidence, which presupposes that a court knows what the evidence is. The Supreme Court recently has reiterated that the “touchstone” for Establishment Clause analysis is “that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’” McCreary County, Ky. v. ACLU, ___ U.S. ___, 125 S. Ct. 2722, 2733 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270 (1968)) (other citations omitted). Because neutrality cannot be clearly defined for all times in absolute terms, “[e]ach value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so.” Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 669, 90 S. Ct. 1409, 1412 (1970); see also McCreary, ___ U.S. at ___, 125 S. Ct. at 2733 n.10 (“At least since Everson v. Board of Ed. of Ewing . . . it has been clear that Establishment Clause doctrine lacks the comfort of categorical absolutes.”). Knowledge of the particular facts and specific circumstances is essential to a determination of whether the governmental acts in question are religiously neutral. See McCreary, ___ U.S. at ___, 125 S. Ct. at 2738 (observing that “under the Establishment Clause detail is key”); see also Glassroth v. Moore, 335 F.3d 1282, 1288 (11th Cir. 2003) (stating that “Establishment Clause challenges are not decided by bright-line rules, but on a case-by-case basis with the result turning on the specific facts”). [emphasis added throughout]

“Neutrality” was not the “touchstone” (a word that Souter did not surround with quotes) of the district court’s opinion below—the court decided the case on the Lemon effects prong—that the sticker had the impermissible effect of advancing religion. And again, Carnes is misrepresenting the context in which Souter used a neutrality inquiry—in service to Lemon‘s secular purpose inquiry. One could plausibly argue that reading in this deeply is meaningless, since the court is mostly looking for reworked facts–but as the above paragraph makes clear, they are looking for facts that would either support or detract from the ultimate issue of neutrality.

Concededly, Judge Carnes does pay Lemon a tepid homage towards the very end of the opinion:

We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs.

But this statement does not go far in undoing the otherwise clear message that the court would really prefer a Neutrality analysis over Lemon.

And there’s one other reason to think that the court does not have Lemon in mind for the immediate future: of the 18 questions it puts to the district court to answer, questions 13 through 16 relate not to the timeline, but to the content of the sticker:

(13) Is the statement in the sticker that evolution is a theory and not a fact generally consistent with the description of evolution contained in the textbook Biology? If not, how do the two differ?

(14) Is the statement in the sticker that evolution is a theory and not a fact generally consistent with the 101 pages of material concerning evolution that is in the textbook Biology? Does that specific statement in the sticker contradict any specific statements in the textbook? If so, which ones?

(15) Dr. Miller testified about what the order describes as “the colloquial or popular understanding of the term [theory].” Does he have any qualifications to testify as an expert on the popular meaning of the word “theory”?

(16) Is the statement in the sticker that the material on evolution in the textbook Biology “should be approached with an open mind, studied carefully, and critically considered” consistent with the approach taught in the textbook itself? If not, how is it inconsistent?

These questions are rhetorical strawmen, and Judge Carnes already knows the answer to each. It’s not the language but the existence of a sticker that troubled the district court. Under the rationale upon which the district court relied, each of those questions bear little relevancy. From the district court opinion:

This statement as not problematic because of its truth or falsity, although testimony from various witnesses at trial and the amicus brief submitted by the Colorado Citizens for Science, et al, suggest that the statement is not entirely accurate. Rather, the first problem with this language is that there has been a lengthy debate between advocates of evolution and proponents of religious theories of origin specifically concerning whether evolution should be taught as a fact or as a theory, and the School Board appears to have sided with the proponents of religious theories of origin in violation of the Establishment Clause.

The questions put to the district court reflect the intention by Judge Carnes to reframe the issue to better fit within a neutrality analysis. The Neutrality inquiry is largely uncurious once it attains affirmative responses to those questions.

But would the Eleventh Circuit be so bold as to reverse the lower court for using a test which the Supreme Court still recognizes? Probably not. I’m merely pointing out the Establishment Clause writing on the wall.

Of course, all this may be moot. The school board may just throw in the towel and not spend more money—the case is basically sitting in legal stalemate, so the question may merely be whether the default position is ‘no stickers’ or ‘stickers’. The Eleventh Circuit vacated the district court’s order and judgment ordering removal of the stickers, but the stickers presently do not accompany the textbooks. The school board can reinsert the stickers, but litigation would surely be triggered by that decision, which would bring the matter back to square one. Which is where we may be anyway.

Should there be rehearings to clean up the facts, it will be interesting to see what part, if any, Kitzmiller is permitted to play. Kitzmiller was decided after Selman, and is notable for its extensive factual inquiry. Of course, the issues in each case differ—Dover County took the full plunge of purporting to teach Intelligent Design, while Cobb County is cautiously dipping its toe into the water by merely taking an unwarranted shot at evolution. Of the two cases, Kitzmiller, had it gone the other way, would have been a far greater victory for the foes of evolution than would Selman; but Selman is more dangerous in that it has a greater chance of success than had Kitzmiller–even the Discovery Institute smartly recognized that Kitzmiller was ‘too much too soon’ and declined to participate. But Selman is a plausible “first wedge” and for that it remains quite dangerous..

The ultimate answer in these cases, in my opinion, is that the courts should insist that any collateral attack on science be met with a presumption of religiosity that it can overcome only through rebuttal. That these attacks emanate from a source other than one beholden to a religious viewpoint is unheard of. The courts should short circuit the probing inquiry into religious purpose and effect entirely and merely assume what is obvious to everyone in the room–that where science is being legislatively attacked, those elements are present, and leave it to the attacker to prove otherwise.

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