This has been making me nervous for months, so I’m going to do you all a favor and share it:

The Supreme Court’s new standard for determining whether teaching creationism is constitutional says we should examine the state of the law when everyone was a creationist.

To explain: Kitzmiller v. Dover, which ruled teaching intelligent design unconstitutional, was decided in part on a precedent called the Lemon test, which informed judges of how to determine if a law or policy’s primary effect was fostering religion.

Last year, in the case of performative prayer by a high school football coach, the Supreme Court got rid of the Lemon test. Instead, it instructed judges to do what it likes to do, and perform a historic analysis.

Directly from the decision: “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

In past decisions, what has that meant? The court looks to the period from roughly 1600 to 1850, and picks (in some cases cherry picks) out the general trend in US laws from the time.

One small problem: Darwin’s Origin of Species dates to 1859.

In other words, in the period the Supreme Court thinks is relevant, EVERYONE in the US was a creationist if they thought about it at all. There was nothing else to be.

How would this play out if a case ever reached the Supreme Court?

Who even knows. And that’s why it all makes me nervous.

(PS: if you ever wanted an example of why it’s completely incoherent to limit legal analysis of a modern society to precedent at the time the Constitution was written, you could do worse than this example)