The Significance

Following Everson, any government employee participating in religion is a "congressmen making laws" under the meaning of the First Amendment, thereby subject to censorship via the First Amendment.  The "vice versa" clause of Hugo Black provided further legal reasoning to determine that private citizens participating in religious activities on government grounds or at government function are also congressmen making laws under the meaning of the First Amendment.  Within a few years, a verbal prayer offered within a public school, even if voluntary and denominationally neutral, was "unconstitutional."  Engel v. Vital, 370 U.S. 421 (1962,); Abington v. Schempp, 374 U.S. 203 (1963).  Even a private citizen, Rabbi Leslie Gutterman of Temple Beth El, would learn that he was a "congressmen making laws" under the meaning of the First Amendment when he offered a prayer of invocation at a high school graduation. Lee v. Weisman, 505 U.S. 577 (1992).  School teachers, fire fighters, judges and even private citizens are mysteriously capable of violating a constitutional prohibition against Congress making certain kinds of laws.

Even if one accepts the vertical theory of incorporation, extending the limitations of the First Amendment to state legislatures, the only cases which even arguably come within the purview of the First Amendment are cases that involve actual congressional passage of laws. 

Therefore, cases such as Lee v. Weisman ^[1] should have never even fallen under the scrutiny of the First Amendment.  A prayer or invocation at a graduation is not in any way related to the state government making laws.  It was an invocation offered by a private citizen.  Moreover, the permission for Rabbi Gutterman to offer the invocation and benediction was given by school principal, Robert E. Lee.  As a principal of a public school, Lee was part of the executive branch of state government, not the legislative branch.  Controlling the conduct of private citizens under the pretext of the First Amendment can be justified by one of two highly spurious lines of reasoning.  1)  The "State Action Theory" wherein one replaces the word "Congress" with the word "government" in the Everson decision, and then finds the approval of private prayer by an employee of the executive branch of government to equate to "state action" by a private citizen, or,  2)  one relies on the "vice versa" gloss of the Everson court which makes the First Amendment a vehicle of restraint against the religious actions of private citizens in a government setting.  Either way, the holding of Lee v. Weisman would have been unsustainable prior to the rewriting of the First Amendment in Everson.  However, through a "horizontal incorporation" theory implicitly adopted by the Court in Everson, equating congress to all three branches of government, when evaluating First Amendment questions, the courts now apply a "state action" test which looks to action by any of the three branches of government (or even a private actor acting in concert with the state).

Although Lee v. Weisman dealt with prayer, and not the teaching of creation science, the significance of Lee v. Weisman on the question of the Creator in the classroom cannot be under estimated.  Edwards determined a law requiring a balanced treatment of creation science and evolutionary science to be unconstitutional.  It was legitimately an action of the Louisiana State Legislature, so whether it was properly found unconstitutional, it was clearly within the scrutiny of the First Amendment -- at least under the more reasonable "vertical incorporation" theory that imposes the same constitutional constraints on state legislatures as on the federal legislature.  But Lee v. Weisman portends a more troubling trend.  If prayer offered by a private actor and authorized by an employee of the executive branch of state government can be prohibited due to the new meaning of the First Amendment reached in Everson, it is clear that teaching of creation science could equally be prohibited by the Supreme Court regardless of whether its teaching were mandated by legislative decree or su sponte by an individual science teacher.

Concerning the right of individual teachers to teach creationism, one takes some comfort in Edwards concurring opinion by Powell, who, joined by O'Connor, states that "[a] decision respecting the subject matter to be taught in public schools does not violate the Establishment Clause simply because the material to be taught 'happens to coincide or harmonize with the tenets of some or all religions.'  Harris v. McRae, 448 U.S. 297, 319 (1980)"  Edwards at 605.  On first glance, the overall tone of the concurring opinion of Powell and O'Connor would seem to suggest that a science teacher could teach creation science of their own initiative, and that the only unconstitutional problem with the Act was that Congress may not require a balanced treatment.  However, the mitigating statements made in the concurring opinion by Powell and O'Connor were equivocal.  For example, they would allow religious documents for teaching "history, civilization, ethics, comparative religion, or the like."  Id at 608, citing Stone v. Grahm, 449 U.S., at 42.  Never do they explicitly state that creationism may be taught by individual science teachers within a science class as an alternative theory to evolution.

One might also argue that the main decision in Edwards permits the teaching of creation-science in public schools, and that the constitutional violation occurred only because of the teaching of creation-science was mandated by a legislature in a Balanced Treatment Act.  The Edwards Court did in fact say:

The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of the theories, besides evolution, about the origin of life.  Indeed, the Court of Appeals found that no law prohibited Louisiana public school teachers from teaching any scientific theory.^[2]

As noted, individual science teachers are free to teach any valid "scientific theory" that they like.  If one looks to the dissent of, Justice Scalia, this should include the right of individual science teachers to teach creation science, for which, Justice Scalia noted, valid evidence had been properly admitted before the court demonstrating a scientific basis and an educational value for the teaching of creation science.

Although appellees and amici dismiss the testimony of Senator Keith and his witnesses as pure fantasy, they did not bother to submit evidence of that to the District Court, making it difficult for us to agree with them.  The State, by contrast, submitted the affidavits of two scientists, a philosopher, a theologian, and an educator, whose academic credentials are rather impressive.  [citations omitted.]  Like Senator Keith and his witnesses, the affiants swear that evolution and creation science are the only two scientific explanations for the origin of life [citations]; that creation science is simply a collection of scientific data that supports the hypothesis that life appeared on earth suddenly and has changed little [citations]; that hundreds of respected scientists believe in creation science [citations]; that evidence for creation science is as strong as evidence for evolution [citations]; that creation science is educationally valuable [citations]; [and] that creation science can be presented without religious content.^[3]

However, in spite of the valid evidence that Scalia noted was clearly placed before the court, the liberal judges of the Edwards Court simply rejected this valid testimony and took judicial notice that there is no scientific evidence whatsoever for creation science.

Even if "academic freedom" is read to mean "teaching all of the evidence" with respect to the origin of human beings, the Act does not further this purpose.  The goal of providing a more comprehensive science curriculum is not furthered. . . by requiring the teaching of creation science.^[4]

Clearly, if the goal of "teaching all the evidence with respect to human origins" is not even furthered by "requiring the teaching of creation-science," then there can logically be no scientific evidence of man's creation!  The logic of our Supreme Court is inescapable.  And if there is no valid evidence for creationism of any color or stripe, than the right to teach a valid scientific theory at the behest of an individual teacher does not give them the right to teach creation science . . . at least not according to the logic of Brennen and the majority.  Given that creationism is not a science, but simply a religion, assurances by the High Court that "no law prohibited Louisiana public school teachers from teaching any scientific theory" is a hollow assurance indeed.  Teachers may teach any scientific theory they like, but the High Court has determined that the teaching of creation is not scientific, regardless of how many equations and fossils are marshaled as evidence.  Accordingly, even without the kind of state legislative action found in Edwards,  Lee v. Weisman and its compatriots hang like the Sword of Damocles over the heads of all curriculum developers and science teachers who might believe in the merit of creation-science.

Conclusion

The language of the First Amendment is clear and unequivocal.  It is specifically and exclusively a prohibition against Congress passing five genre of laws.  This prohibition was made incumbent on the state legislatures by the 14^th Amendment in Cantwell.  The limitations of the First Amendment were then made incumbent any state employee from school teachers and municipal garbage collectors ("Congress" equals "government") and even citizens such as a local Rabbis ("and vice versa") by the convoluted logic of Ku Klux Klansman Hugo Black in Everson.  It was also made to extend beyond a prohibition against "making [certain kinds of] laws" to a prohibition against "participating" in "religious activities" by the convoluted logic of Ku Klux Klansman Hugo Black in Everson.  And as further proof of this novel doctrine, Klansman Black appealed to the authority of a contextually vacuous statement paraphrasing a sermon of a Baptist minister paraphrasing a parable of Jesus in a letter written by a man who was living in France at the time the First Amendment was written.  This is known as legal scholarship.

************************************************************************

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

First Amendment of the United States Constitution.

The 'establishment of religion' clause of the First Amendment means at least this. . . Neither a state nor Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.  In the words of Jefferson, the clause against establishment of religion was intended to erect 'a wall of separation between Church and State.'

Former Ku Klux Klansman and Supreme Court Justice Hugo Black, Everson v. Board of Education.

It is emphatically the province and duty of the judicial department to say what the law is.

Marbury v. Madison, 5 U.S.(1 Cranch) 137, 2 L.Ed. 60 (1803)

"They've a temper, some of them--particularly verbs:  they're the proudest--adjectives you can do anything with, but not verbs--however, I can manage the whole lot of them!  Impenetrability!  That's what I say!"

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean--neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

The question is," said Humpty Dumpty, "which is to be master?--that's all."

Lewis Carroll

Through the Looking Glass

Chapter 3: Continued