(from NCSE's analysis of the "Santorum" language, originally published in 2002)
Intelligent Design advocates claim that federal law supports teaching their views as an alternative to evolution in the public schools. As evidence, they cite to an amendment that Senator Rick Santorum offered to the Elementary and Secondary Education Authorization Act of 2001 (HB 1). The Santorum Amendment would have expressed a "sense of the Senate" that school curricula should include discussion of the "controversy" surrounding biological evolution. The Senate included this amendment in its version of the legislation, but the House did not. Importantly, the Conference Committee (a House/Senate group that resolved the differences between the competing versions and put together the final bill) deleted the amendment from the final Act. It was not part of the legislation that Congress passed and that President Bush signed into law.
The decision to remove an amendment from the text of a bill has a very specific legal meaning. It suggests that the legislature considered the language in question and rejected it. Sutherland on Statutory Construction, the leading treatise on statutory interpretation, has this to say on the subject: "The rejection of an amendment indicates that the legislature does not intend the bill to include the provisions embodied in the rejected amendment." N. Singer, Sutherland on Statutory Construction 48:18 (2000). Congress deleted the Santorum Amendment from the legislation. This provides strong evidence that Congress considered the views expressed in this amendment, and did not support them.
The Conference Committee did include a watered-down version of the amendment in a separate "explanatory statement" that it issued with respect to the final legislation. To understand the legal significance of this statement it is important to distinguish between a statute and legislative history. A statute passed by Congress and signed by the President constitutes federal law. Legislative history is merely a record of events leading up to the passage of a law. It is not part of the statute itself, is not voted on by Congress, and is not law, as such. Here, the Santorum Amendment was deleted from the statute. It did not become law. At most, the explanatory statement is an expression of the views of a few members of the House and Senate about the law. It forms a part of the legislative history. It does not constitute federal law on the subject.
On occasion, legislative history such as committee reports can be a helpful tool for interpreting the language of a statute. The statement here provides little help in that regard since there is no corresponding statutory language to interpret, Congress having deleted the Santorum Amendment. Moreover, legislative history only serves this interpretative function where it sheds light on the intentions of Congress as a whole. Here, Congress did not support the Santorum Amendment, as evidenced by the fact that it took it out of the final legislation. This suggests that the watered-down version that appeared in the explanatory statement was added at the behest of a special interest group and did not receive the endorsement of Congress as a whole. In such situations, courts give legislative history little weight even as an interpretative tool. They in no way treat it as the considered "federal law" on the subject.
A governmental requirement that intelligent design be taught with evolution would violate the Constitution. Intelligent design advocates in Ohio have sought, on a number of fronts, to require that intelligent design be taught with evolution in public school biology classes. Some have proposed legislation to this effect. Others have sought to have the State Board of Education require it. Recently, some have proposed that local boards of education should mandate it. In any of these forms, a government requirement of this nature would violate the Establishment Clause and would be unconstitutional under the Supreme Court's decision in Edwards v. Aguillard, 393 U.S. 97 (1987).
The Edwards case concerned a Louisiana statute that prevented the state's public schools from teaching the theory of evolution unless they also included instruction on "creation science." Creation science, as described by the legislation's defenders, included a belief in "origin through abrupt appearance in complex form" and in the creation of life by an "intelligent mind." Like the current intelligent design advocates in Ohio, the creation scientists in Louisiana asserted that their ideas constituted a valid scientific theory and that they were seeking only to bring balance to the curriculum.
The United States Supreme Court rejected this claim and found the creation science legislation to be unconstitutional. Applying the Lemon test (a legal test derived from the foundational case of Lemon v. Kurtzman), the Court focused on whether the challenged government action serves a secular purpose, or a religious one. The legislation's proponents had maintained that its purpose was to promote academic freedom. The Court did not accept this view. It found that the statute's true purpose was to use the coercive powers of the state to promote religious ends. As such, it was unconstitutional. The Court based its conclusion on the fact that the legislation had chosen to focus on the one scientific theory - evolution - that certain religious groups find most disturbing. It also looked to the religious motivations expressed by the statute's sponsors.
Were an intelligent design requirement challenged on constitutional grounds, a court would likely follow a very similar analysis and reach the same conclusion. Intelligent design theory is in many respects similar to creation science; including the shared belief in complex life forms at origin and the intervention of some type of intelligent actor. Moreover, just like the Louisiana statute at issue in Edwards, the intelligent design movement focuses its challenge on the one scientific theory that most conflicts with the views of certain religious groups, while ignoring far more significant scientific controversies. If the movement's real intent were to improve the teaching of scientific controversies, then evolution, one of the most settled of scientific theories, would be an odd place to begin. In Edwards, the Supreme Court found such a limited focus to be highly suggestive of the proponents' religious purposes and, therefore, of the requirement's unconstitutionality.
In the years following Edwards, those advocating the teaching of creation science/intelligent design have become far more careful about public expressions of their religious motivations. That said, one need not look far to find them. In an autobiographical essay posted on the True Parents website (a site dedicated to the Rev. Sun Myung Moon) Dr. Jonathan Wells, who testified before the Ohio State Board of Education in favor of intelligent design, explains that he is motivated by religious ends. He writes that Reverend Moon "frequently criticized Darwin's theory that living things originated without God's purposeful, creative activity. "Father's words, my studies and my prayers convinced me that I should devote my life to destroying Darwinism." Similarly, the Center for the Renewal of Science and Culture (CRSC), a leading intelligent design advocacy group, states as a principal goal the "replac[ing of] materialistic explanations with the theistic understanding that nature and human beings are created by God" (see The Wedge Strategy). These and other express statements should make it possible to demonstrate the religious purpose behind the intelligent design movement's effort to revise the curriculum in Ohio schools. In Edwards, the Supreme Court made clear that an educational requirement's secular purpose must be "sincere and not a sham." An intelligent design requirement in the State of Ohio would not stand muster under this test. Like the creation science requirement in the Edwards case, a court would likely strike it down as an unconstitutional use of government power to serve religious ends.