The government, and people acting on behalf of the government, may not endorse religion, and may not favor religion over non-religion. By the same token, they may not endorse atheism nor favor non-religion over religion. The government, and those acting on behalf of it, must be neutral about religion. The most oft-cited Supreme Court passage supporting this proposition — one which ought to be intuitively obvious — is “The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. Arkansas (1968) 393 U.S. 97, 103-104.
It seems generally to be the case that this idea, part of what is typically referred to by the intellectual shorthand of “separation of church and state,” is brought up in protest to situations in which religion and government are married and one advances the other. But it can be the case that the government is enlisted in the cause of discouraging religion too, and since what makes us a free people is limits on the power of government, I see protecting the freedoms of religious people to practice and believe as they see fit to be an integral part of the protection of my own freedom not to believe or worship at all. For me, at least, it’s not about being an advocate for atheism, but rather about being an advocate for the appropriate limits on the exercise of state power. Leave the believers alone, leave the non-believers alone, treat them the same. Easy enough as a general proposition to be (mostly) non-controversial. Difficult, however, to implement in specific cases.
Which is why cases like Friday’s Ninth Circuit decision in what could have been a very interesting Establishment Clause case really frustrate me.
The case of Farnan v. Capistrano Unified School District is one that has given me a bit of heartburn because it’s a case of an atheist acting on behalf of the government behaving badly. I’d prefer to say that all my fellow non-believers are good stewards of state power when it is vested in them. But that just isn’t the case; we’re human and fallible just like people of faith are. In the Farnan case, a teacher at a public high school, Dr. James Corbett, got into a serious squabble with a bright young Christian student, Chad Farnan, with roots going back to Corbett’s description of creationism as “religious, superstitious nonsense.” Young Mr. Farnan took offense, got some Christian activist lawyers, and sued Corbett and his employer, the school district.
The District Court found two things — first, that Corbett had crossed the line from permissible commentary into endorsement of non-religion, and second, that the student could recover monetary damages* from the teacher as a result. The Ninth Circuit on Friday reversed that decision, on grounds of qualified immunity. “Qualified immunity” applies in a situation in which the constitutional right in question is not so clearly-defined that a person of reasonable intelligence in the defendant’s position would have known that his conduct violated the rights of another. The Ninth Circuit found no case in which a teacher’s putatively hostile-to-religion remarks had been found to violate the Establishment Clause, so Corbett was within the sphere of qualified immunity and cannot be held liable for monetary damages.
Now here’s where the trick comes in. Farnan has graduated already. He sued for injunctive relief and declaratory relief, and got it, in the form of the District Court’s finding that Corbett’s statement(s) violated the Establishment Clause. The Ninth Circuit found that because Farnan had graduated, his claims for declaratory and injunctive relief were moot; he will not again be subject to Corbett’s disparagement of religion. “But wait,” you say, “Corbett seems quite likely to be able to make similar sorts of statements to future students, and that would mean that their rights would be violated too! Doesn’t that make this an incident readily susecptible of repetition?” Yes, but that’s not a live case or controversy before the Federal Courts, says the Ninth Circuit; Farnan has no standing himself to bring that claim. A future student who is insulted by Corbett must bring her own lawsuit, if it happens.
Now, Farnan’s lawsuit was stil live as to the monetary damages. The District Court awarded him money, so there is still a live issue of whether Corbett has to write a check. But since we now know that no teacher in Corbett’s position could have been reasonably expected to have known that he was violating the Establishment Clause with his remarks, Corbett enjoys qualified immunity, and therefore there is no liability on the only live part of the case remaining. That means that the District Court never needed to decide whether or not Corbett’s remarks violated the Establishment Clause at all, and therefore any opinion by the District Court about whether Corbett crossed that line or not is dicta, unnecessary to resolve the live issues before the Court.
This leaves us without guidance as to when, exactly, a teacher (or some other kind of public official) crosses the line into endorsing non-religion over religion. The Ninth Circuit basically says in response to that, “Yep, there’s a void in the law there and we’re not going to offer you any guidance on how to fill it”:
The Supreme Court has long recognized the importance of protecting the “robust exchange of ideas” in education, “which discovers truth ‘out of a multitude of tongues.’ ” “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding… .” This academic freedom will sometimes lead to the examination of controversial issues. … In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority. … But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effectiveAt some point a teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility. But without any cases illuminating the “‘dimly perceive[d] … line[ ] of demarcation’ ” between permissible and impermissible discussion of religion in a college level history class, we cannot conclude that a reasonable teacher standing in Corbett’s shoes would have been on notice that his actions might be unconstitutional. (Some internal quotations and citations removed).
While I think this is the right result in this case, it would not have been amiss for the Ninth Circuit to have offered some of the guidance that in this section it points out is needed. This is why there are test cases. And Corbett’s conduct is right there on the margin between teaching using the challenging methods approved of and abusing his position of authority. It looks to me like Corbett stepped over the line. Not by much, debatably, but I think he did step over the line. To say “religion is not science, creationism is religion because it relies on religious doctrines to reach its explanations, and we’re here to talk about science” is on one side of the line, to say “creationism is religious nonsense” is on the other. The difference is one of endorsement. The first statement sidesteps the issue of which is the better way to look at things, the second statement is an official condemnation of a particular viewpoint.
But that’s just my opinion. It’s probable that the Ninth Circuit didn’t take that step because it didn’t have to in order to resolve the case before it, and were it to have gone further, the panel would have broken down from its unanimous holding and fragmented badly. To be sure, that is where the decision gets really difficult and therefore that is why guidance from the courts here is really needful. Standing, mootness, qualified immunity, and other procedural obstacles are used with relish here to avoid addressing that more difficult, but ultimately much more important, part of the law. An opportunity to illuminate and develop the law has been ignored, and that’s a shame.
* Farnan sought only “nominal damages” in this part of his claim for relief. The award of damages would have been on the order of a dollar or something like that. So don’t get the idea that the plaintiff was seeking hundreds of thousands of dollars for his emotional distress at having his religious sensibilities insulted. But at the same time, understand that if the teacher could be found liable for nominal monetary damages in this case, the next teacher in the next lawsuit might be potentially susceptible for hundreds of thousands of dollars in emotional distress damages. And that in that future lawsuit, it might be going the other direction — it could just as easily be an atheist student suing a Christian teacher as the other way around.