COURTS AND SOCIAL POLICY….A FOLLOWUP….Should liberals quit trying to use the courts to advance their social agenda? I posted about this a couple of days ago, and today Nathan Newman offers a much more detailed defense of his view that doing so actually retards social progress in the long run by provoking a conservative backlash. His main post is here and a short followup post is here.

To repeat myself, although I’ve long found this argument intriguing I’m not yet ready to say I’m convinced. And since creationism in public schools is one my hottest of hot buttons, it’s not surprising that I find myself especially wary of arguments like this:

Frankly, religious fundamentalists have a good case that evolution attacks their belief system. Darwinism directly contradicts a literal reading of the bible creation story. To the extent that secularists claim a non-religious view of the world is an ethical view of the world PROTECTED by the free exercise clause, a non-religious explanation of our origins is part of an ethical view of the world that cannot be ESTABLISHED by the state.

I’m not arguing that Darwinism should therefore be excluded from schools ? as some on the religious right would claim. But I am arguing that the courts shouldn’t try to look at religious motives for legislation and instead should limit any intervention to protecting the religious liberty of all students. If a majority pushes to teach Intelligent Design in schools and a teacher of ID is using it in a way that makes atheist Darwinists feel intimidated, that’s a situation calling for intervention in the name of religious liberty.

I myself would not argue that Darwinism in biology classes is protected by the free exercise clause of the First Amendment. Rather, I would argue more narrowly that everything else is forbidden. If a school district decides not to teach biology at all, that’s fine. But if they do teach it, they aren’t allowed to include religious proselytizing in the curriculum.

The distinction here is this: creationism is Christian proselytizing, a no-no for government bureaucrats. Intelligent Design is so clearly a thinly veiled version of creationism that it’s forbidden too. Darwinism, however, is simply science. School districts are free to stop teaching science if they want, but if they do teach it, they have to teach Darwinism just as much as they have to teach Newtonian mechanics, Boyle’s law, and the theory of relativity.

Does this position run the risk of infuriating Christian fundamentalists and provoking a backlash? Of course it does. It already has. And yet I find myself unconvinced that that’s sufficient reason to back down on this. There’s plenty of crackpot science out there, and public schools should no more be allowed to teach Intelligent Design than they should be allowed to tell students that pi equals 3. Even if Nathan is right, that’s a bridge I just can’t cross.

UPDATE: Matt Yglesias weighs in on Nathan’s side: “Dependence on the courts makes liberals fat and lazy. Important political fights are won on the airwaves, on the op-ed pages, in the streets, and at the ballot box. The “culture wars” fights are largely winnable, but only if you play the game and learn to play it well.”

UPDATE 2: The invaluable Sam Heldman, now blogging once again, has a different take: if liberal judges really do invite conservative backlash, why is it that conservative judges don’t invite liberal backlash? And he’s got an example!

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