But it seems a far stretch from Schempp to the present case, in which respect for any alternative opinions or beliefs on the origins of life is disallowed. When an appellate panel rules, one of the parties can ask the full court to hear the case again. Seven judges in the Fifth Circuit voted to hear this case one vote short of the margin needed for rehearing. We decide only that under the facts and circumstances of this case, the statement of the Tangipahoa Parish School Board is not sufficiently neutral to prevent it from violating the Establishment Clause. There is, of course, nothing wrong with insisting upon governmental neutrality among competing claims concerning religion.
Substantive neutrality is at the heart of the nonestablishment principle.
As Professor Douglas Laycock puts it, the religion clause requires government to minimize the extent to which it either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance. But neutrality is precisely what the disclaimer policy sought to achieve. And it is precisely what the court has disallowed, leaving behind not neutrality, but a tilt toward the secularist predicates of Darwinism. The conclusion that an innocuous disclaimer constitutes an establishment of religion needs more basis in law than a passing reference to unspecified facts and circumstances of this case. It takes the vote of four Supreme Court Justices to initiate review of a case.