The Potential Loophole in Aguillard: The Role of Subjective Motive
Justice Scalia, joined by Chief Justice Rehnquist, dissented from the Aguillard ruling. These Justices took special exception to the majority's reliance on evidence of the subjective motives of the legislators who enacted the Louisiana law. In their view, the "purpose" of the Louisiana legislature in enacting the challenged law was necessarily a fiction--a composite of the multiple and mixed motives of the many people composing the legislature.
Justice Scalia's seemingly categorical criticism of any constitutional inquiry into subjective purpose was somewhat overstated. There are other areas of the law in which even Justice Scalia himself accepts that subjective legislative purpose holds the key to a law's constitutionality. For example, under the Court's Equal Protection doctrine, a law that has a disproportionate negative impact on a racial group will be held invalid if, but only if, the law was adopted for the subjective purpose of disadvantaging members of the racial group. To my knowledge, neither Justice Scalia nor Chief Justice Rehnquist has disavowed or even criticized this principle.
Nonetheless, the broader point of Justice Scalia's Aguillard dissent is valid. Legislative purpose is something that courts construct, rather than simply find.
Furthermore, clever legislators can readily evade a constitutional rule that depends on finding evidence of an illicit purpose. The legislators merely need
to watch what they say in favor of the bill, expressly relying only on permissible factors.
Whether the members of the Dover School Board were sufficiently disciplined to survive scrutiny of their motives remains to be seen. But the broader lesson that foes of evolution should take from Aguillard is clear: Strictly avoid any reference to religion in your arguments for the laws you seek to enact, even if you secretly favor these laws on religious grounds.
How to Close the Aguillard Loophole
Nonetheless, if Aguillard is interpreted sensibly, even such a strategy of referring only to secular arguments should fail. After all, Justice Brennan's opinion in Aguillard does not state that the Louisiana law would have been valid if only its sponsor had not slipped in acknowledging a religious motive.
Indeed, as Justice Scalia noted, the law's sponsor "repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine." The sponsor's statements quoted by Justice Brennan merely showed that his true aim was not to increase the diversity of biological viewpoints taught in the Louisiana schools.
Thus, the better reading of the Aguillard opinion makes the constitutionality of a law challenged on Establishment Clause grounds depend on its objective purpose--the purpose or purposes that a reasonable person would attribute to the legislature, in light of what the law actually requires. Justice Brennan's opinion saw through the sponsor's stated
aim, to his true aim. In the Dover case and other litigation involving intelligent design, the courts ought to be able to do the same.
