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29 Harv. J.L. & Pub. Pol'y 417 (2005-2006)
Seeing Government Purpose through the Objective Observer's Eyes: The Evolution-Intelligent Design Debates

handle is hein.journals/hjlpp29 and id is 425 raw text is: SEEING GOVERNMENT PURPOSE THROUGH THE OBJECTIVE OBSERVER'S EYES: THE EVOLUTION- INTELLIGENT DESIGN DEBATES KRISTI L. BOWMAN* Debates about teaching intelligent design in public school science classes are inflaming communities across the nation. These controversies present thorny Establishment Clause ques- tions at a time when that doctrine is less clear than ever. The ambiguity is not due to a lack of case law: Just last year, the Supreme Court issued two seemingly contradictory Establish- ment Clause decisions, driven by what then-Chief Justice Rehnquist characterized as Januslike interests. McCreary County v. ACLU, with its focus on government purpose, is more applicable to curricular disputes such as intelligent design than Van Orden v. Perry, with its examination of passive, apparently uncontroversial expression. This Article thus examines McCreary County within the intelligent design context, focusing on McCreary County's decision to import the objective ob- server from the effects-endorsement analysis into the gov- ernment purpose inquiry. Such analysis makes clear the ways in which a strict reading of McCreary County leads to undesir- able results, and the reasons why the Court should retain McCreary County's focus on government purpose, but reject the expanded role of the objective observer. CONTENTS I. INTRODUCTION ...................................................... 419 II. AN EVOLUTION-INTELLIGENT DESIGN PRIMER..426 *Assistant Professor of Law, Drake University Law School; J.D., Duke University; M.A., Duke University; B.A., Drake University. The author is grateful to Martin Begleiter, John Borkowski, Jan Bowman, John Bowman, Paul Carrington, Tracy Dodds, Gabrielle Hann, Mark Kende, Christine Marchand, David McCord, Michael Pardo, H. Jefferson Powell, Keith Summerville, and students in Education Law for their comments, and to Martha Sibbel for research assistance.

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