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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
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.
I.  INTRODUCTION   ...................................................... 419
*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

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