Back when I taught Constitutional History, I had occasion to carefully read the Supreme Court decision Lemon v. Kurtzman (1971), which underlies a lot of the Court's really broken establishment clause decisions. The objection that I have to Lemon is that it too broadly construed the prohibition on establishment of religion into a general prohibition on any governmental assistance to a program carried out by a religious entity. In that case, a Rhode Island school district was providing funding to private sectarian school teachers.
There are some good policy arguments for such a policy, of which the strongest is that kids in private schools aren't attending public schools--even though their parents are paying taxes to support those public schools. There are some good policy arguments against it, too, I suppose. I just don't buy that there is a First Amendment problem with such a policy, unless the school district gave these subsidies to schools associated with some religions, but not others, or gave subsidies only to non-religious schools. (Rhode Island's law apparently allowed such subsidies to all private schools, but only the Catholic Church schools had taken advantage of this opportunity--no great surprise, when you consider Rhode Island's population.)
Anyway, Professor Volokh points to a recent U.S. district court decision, C.F. v. Capistrano Unified School District (C.D. Cal. 2009), which uses Lemon to deal with a teacher who called Creationism "superstitious nonsense." Now, regardless of what you think of the scientific merits of Creationism, this is not generally at the top of the list of effective strategies for persuading students (and their parents) on to your side. It is, however, an effective way to get a lawsuit filed.
If the Court actually followed what the Framers apparently intended--a prohibition on federal establishment of religion in 1791, and the state laws in 1868, when Congress passed the Fourteenth Amendment, incorporating the First Amendment against the states--this wouldn't be an issue. Establishment meant legal recognition, preference, or advantage to a particular denomination. As I mentioned a while back, Supreme Court Justice Joseph Story, a widely respected and cited authority on early Constitutional law, pointed out what the religion clauses meant:
The real object of the amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cuts off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. [Joseph Story, Commentaries on the Constitution of the United States, 5th ed. (Boston: Hilliard, Gray & Co., 1833), 701]However offensive this teacher's remarks are, under an original intent understanding of the establishment clause, calling an idea that some Christians hold "superstitious nonsense" is not a violation of the First Amendment. But using the Lemon decision, which is historically inaccurate, those remarks really are unconstitutional!
Lemon needs to be overturned by the courts, and U.S. jurisprudence returned to an original intent understanding of the clause: no legal preference or disability for any particular Christian denomination. If it is too offensive to modern intellectuals to acknowledge that Justice Story was correct that the objective was not to require a level playing field to all religions, fine. Even putting all religions on an equal legal basis would be closer to original intent than the Lemon decision--and would give science teachers with no manners or sense the freedom to express their opinions without running afoul of the First Amendment.
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