CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Rights in Action
Spring 2006 (22:2)
The Establishment of Religion
More Monkey Trials: The Evolution Debate Goes Back to Court
The Scopes trial of 1925 did not end the court battles over teaching evolution. Numerous trials and appeals have taken place. More probably will occur in the future.
On July 21, 1925, John Scopes was found guilty of teaching evolution to his students. Earlier that year, the Tennessee Legislature had passed a law making it illegal to teach “any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” On appeal, Scopes’ conviction was overturned on a technicality, but his constitutional challenge to the law never reached the Supreme Court. Laws banning the teaching of evolution remained in effect in Tennessee, Mississippi, and Arkansas.
Forty years later, a 10th-grade biology teacher in Little Rock, Arkansas, decided to challenge the law making it illegal for her to teach evolution. The Arkansas law, like the Tennessee law, made it unlawful to teach the theory that mankind “ascended or descended from a lower order of animals.” The trial lasted less than a day and did not include any scientific testimony. But in 1968 the Epperson case reached the U.S. Supreme Court. The court concluded that the purpose behind the Arkansas law was to prevent teaching the theory of evolution because it was thought to conflict with the Bible. The court ruled that the law was unconstitutional, because the establishment clause of the First Amendment does not allow any programs or practices in public schools that “ ‘aid or oppose’ any religion.”
After the ruling in Epperson, it was unlawful to ban the teaching of evolution. Anti-evolutionists gave up trying to ban it and shifted their efforts to get public schools to teach creationism. After 1968, local school boards began passing resolutions requiring schools to provide equal time for teaching “creation science” alongside evolution. And more recently, school boards around the country have passed resolutions encouraging the teaching of “intelligent design,” another alternative to the theory of evolution. The curricula required by these resolutions are seen by many as new attempts to inject religion into the classroom. So the debate over creation versus evolution has continued to be fought out in the courtroom, and the monkey trials go on.
Giving Evolution and “Creation Science” Equal Time
After the Scopes trial, many publishers began to de-emphasize evolution in high school textbooks. The most popular biology textbook in the 1920s was rewritten deleting almost all specific references to evolution. In 1940, a survey of high-school biology teachers found that less than half taught evolution as the theory underlying plant, animal, and human origin. Evolution was fading from view in the classroom.
In the late 1950s, this began to change. The United States and the Soviet Union were in a nuclear arms race. And in 1957, the Soviet Union put the first satellite—“Sputnik”—into orbit. Fear and concern arose in Washington, and among the public, that the Soviet Union was overtaking the United States in science and technology. As a result, the government began funding programs to reform science education. Some of that money was put into a program to develop new high-school textbooks. And the new textbooks written in the early 1960s strongly emphasized evolution.
At the same time, fundamentalist Christian groups also began developing high-school biology textbooks to teach a “creationist” view of human origin. A book titled The Genesis Flood was published in 1961. Written by John C. Whitcomb Jr and Henry Morris, this book became the cornerstone of a new movement called “creation science.” According to the book, Noah’s flood can explain most of geology, scientific evidence shows that the Earth is less than 10,000 years old, and Darwin’s theory of evolution is therefore wrong. Fundamentalist groups founded organizations devoted to teaching creation science, like the Institute for Creation Research (ICR). They spread their message by reaching out to churches and through publications.
ICR was also committed to having creation science taught in public schools. In 1979, an ICR publication encouraged local citizens to urge their school boards to add creation science to the biology curriculum. Inspired by ICR, a campaign began in the late ‘70s to pass state laws that would require teaching both “evolution science” and “creation science” in all public schools. By the early ‘80s, “equal time” laws had been introduced in 27 states. Many scientists and educators were involved in campaigns to prevent their passage. And most bills failed. But in Arkansas and Louisiana, equal-time laws were passed and went into effect.
The “Equal Time” Laws Go to Court
The Arkansas ACLU immediately challenged the Arkansas equal-time law in federal district court. The plaintiffs included the Reverend Bill McLean of Little Rock and many local church bishops and officers. The defendants included the Arkansas Board of Education. What followed was another legal confrontation, similar in many ways to the Scopes trial in 1925. Seventy-five news organizations registered to cover the trial. And numerous expert witnesses were called to the stand in a trial that lasted for two weeks.
On January 5, 1982, the court struck down the Arkansas law and banned its enforcement. The judge ruled that the act violated the establishment clause of the First Amendment for two reasons:
1. Its purpose “was simply and purely an effort to introduce the Biblical version of creation into the public school curricula.”
2. Its effect was “the advancement of a particular religious belief.”
The judge’s conclusion on the purpose of the law was based in part on the history of the creation-science movement. It was also based on evidence concerning the individuals involved in drafting and passing the bill. Documents introduced into evidence showed their beliefs and motives. One document was a letter from Paul Ellwanger (who drafted the bill) to Louisiana State Senator Bill Keith (who introduced the equal-time law in Louisiana). In his letter, Ellwanger said: “I view this whole battle as one between God and the anti-God forces.”
With respect to the religious effect of the act, the judge determined that “creation science,” as defined by the act, was based on the concept of creation by God and was inspired by the Book of Genesis. Moreover, based on the testimony of expert witnesses, the judge decided that there was no legitimate educational value to creation science. He stated that, as defined in the act, creation science “is simply not science.” Having concluded that the only “real” effect of the act was the advancement of religion, the judge ruled that it was unconstitutional.
Edwards v. Aguillard (1987)
The Arkansas decision did not go to the Supreme Court. But the Louisiana equal-time law (called the Creationism Act) did. That law was passed in 1981. Like the Arkansas law, it was based on model legislation developed by Ellwanger. The law banned teaching evolution unless accompanied by instruction in creation science. Aware of the problems that the Arkansas law had encountered, the authors of the Louisiana bill did not define “creation science” in terms that had religious connotations. Instead, the theories of evolution and creation science were defined as “the scientific evidences for [creation or evolution] and inferences from those scientific evidences.”
Litigation was filed almost immediately. The case went back and forth between various state and federal courts. But unlike the McLean case, no trial ever took place. The plaintiffs included the parents of children attending public schools and Louisiana teachers. They filed a motion for summary judgment, claiming that the act was invalid on its face. After much legal maneuvering, their motion was granted. The ruling was appealed.
The case reached the Supreme Court in December 1986. In addition to hearing oral arguments, the court received written briefs from 16 organizations and individuals. One was submitted by 72 Nobel Prize–winning scientists. The briefs addressed the question of whether creation science was science or religion. But the Supreme Court chose not to address that issue. Instead, the court focused on the purpose of the law.
The state argued that the act was intended to protect academic freedom. But the court disagreed. In its opinion, the court stated that it will usually defer to a state’s “articulation of a secular purpose,” but only if the statement of purpose is “sincere and not a sham.” After reviewing the legislative history, the court concluded that the term “creation science” as used in the Creationism Act embodied a religious belief—namely that a “supernatural creator” was responsible for creating mankind. The court determined that by passing the law, the Louisiana Legislature had given preference to certain religious groups—i.e., the groups that believe in a divine creator. And because the primary purpose of the Creationism Act was “to endorse a particular religious doctrine,” the act violated the establishment clause.
After the Supreme Court’s ruling in Edwards, equal time for creation science was no longer an option. But the anti-evolution movement did not give up. And the decision in Edwards had left the door open to teaching other theories about origin. “We do not imply,” the court said, “that a legislature could never require that scientific critiques of prevailing scientific theories be taught.” (Italics added). With this in mind, activists developed a new approach to creationism called “intelligent design.”
Much of what is written about intelligent design is devoted to demonstrating flaws and gaps in evolutionary theory. There is no single authoritative text—like Darwin’s Origin of Species—that explains intelligent design and how it works. In fact, many proponents of intelligent design disagree about how life came into being. But in the words of one spokesman, Philip Johnson, all agree that a supernatural creator “not only initiated the process but in some meaningful sense controls it in furtherance of a purpose.”
During the 1990s, intelligent design began to attract notice around the country. Legislatures in various states introduced bills that required the teaching of evidence against evolution. Some school boards on their own initiative added it to the curriculum.
One such board controlled the Dover Area School District. Dover is a small town in Pennsylvania. Some members of the school board wanted to see creationism added to the curriculum On October 18, 2004, they voted to make “students aware of gaps/problems in Darwin’s theory and of other theories of evolution, including but not limited to intelligent design.” A month later, the Dover Area School District announced by press release that beginning in January 2005, teachers in ninth-grade biology classes would have to read a statement to their students. The statement said that Darwin’s theory “is not a fact” and described intelligent design as another explanation about the origins of life. (The statement also told students that a textbook called Of Pandas and People was available in the library for anyone who was interested in learning “what Intelligent Design actually involves.”)
These rulings were not well received by the teachers at Dover High School. The science faculty wrote a letter to the school board stating that “Intelligent Design is not science. It is not biology.” The letter said that reading the statement would force teachers “to knowingly and intentionally misrepresent subject matter or curriculum.” Ultimately, the biology teachers refused to read the statement, and the school administrator was forced to read it to the class. By then, however, 11 parents had already filed a lawsuit against the Dover Area School District.
Intelligent design went on trial in federal court in Harrisburg, Pennsylvania, in October 2005. Both sides assembled teams of attorneys and a number of prominent experts. The trial, which lasted six weeks, gave intelligent design an exhaustive academic and legal examination. Many compared it to the Scopes case that had put evolution on trial 80 years earlier.
Unlike the Scopes trial, both sides presented numerous scientific experts, who testified on the underpinnings of evolution and of intelligent design (ID). Defense experts presented three days of testimony by Dr. Michael Behe, the leading scientific advocate of ID. Behe described structures like the bacterial flagellum, which he contended are so complex that they could not have evolved naturally and must be the product of an intelligent, “supernatural” designer. The defense experts also testified about gaps and problems in evolutionary theory. The plaintiffs’ experts countered with scientific data supporting evolution. With all the testimony from scientific experts it was, in the words of one spectator, “rather like the biology class you wish you could have taken.”
U.S. District Court Judge John E. Jones listened to the scientific testimony. He was not convinced that ID should be part of a scientific curriculum. ID, he concluded, is not science because it is based on the “supernatural.” True science is limited to the search “for natural causes to explain natural phenomena.” “Science,” he wrote, since the 16th century, “has been a discipline in which testability has been the measure of a scientific idea’s worth.” The way science works is to seek explanations of how nature works from what can be observed, tested, and verified. “While supernatural explanations may be important and have merit, they are not part of science.”
Judge Jones also concluded that the statement that was being read to students was misleading. Paragraph two of the statement says:
Because Darwin’s Theory is only a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact . . . .
The word “theory” he said, would suggest to most students that evolution “is only a highly questionable ‘opinion’ or ‘hunch.’ “ That would create a wrong impression about the status of evolution, which, as many experts testified, is the scientific theory of origin accepted by the overwhelming majority of scientists.
Judge Jones also relied on evidence about the events that led to the Dover School Board’s adopting the ID policy. Testimony showed that during debate, many school board members had talked about their belief in creationism and the need to balance evolution with creationism. Some school board members made openly religious statements. And one member, when questioned about the supposedly anonymous donation of 60 copies of the ID textbook (Of Pandas and People) to the school library, failed to acknowledge that the money for the textbooks had come from a collection that he took at his church. This, and other instances of false testimony, led Judge Jones to find that no credible evidence of a sincere secular purpose behind the school board’s ID policy. In a lengthy (139-page) opinion, the judge summarized the six weeks of trial testimony. He laid out in detail the basis for his conclusion, namely that “the secular purposes claimed by the Board amount to a pretext for the Board’s real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause.”
Four days after the end of the Kitzmiller trial (and before the judge had issued his opinion), a new slate of candidates opposing the ID policy was elected to the Dover School Board. The new board will not appeal Judge Jones’ ruling so it will not go to a higher court. And although it is likely to be consulted by any judge presiding over a similar case, Judge Jones’ decision is only legally binding for school districts in the middle federal district of Pennsylvania.
Many experts think that the decision will deter other school districts from teaching intelligent design. But the American public is still divided on the issue. A poll taken in October 2005 shows 51 percent of Americans say God created humans in their present form, and another 30 percent say that while humans evolved, God guided the process. Just 15 percent say humans evolved without intervention from God. Another poll shows that 29 percent of Americans want creationism taught in public school science classes. Given these poll numbers, it is likely that the debate will continue, both in the political arena and in the courts.
1. What was the Epperson case about? What was its decision based on? Do you agree with the decision? Why or why not?
2. What is “creation science”? What are equal-time laws? What was the Supreme Court’s decision in Edwards v. Aguillard? Do you agree with the decision? Explain.
3. How is “intelligent design” different from “creationism”? What was the case Kitzmiller v Dover Area School District about? What was the federal court’s decision in the case? Do you agree with the decision? Explain.
Establishment Clause Cases
The establishment clause of the First Amendment states: “Congress shall make no law respecting an establishment of religion . . . .” Like other parts of the Bill of Rights, this clause at first only applied to Congress. But the passage of the 14th Amendment, which applied to the states, changed this. The Supreme Court interpreted the 14th Amendment’s due process clause to incorporate all the fundamental freedoms found in the Bill of Rights. The court then on a case-by-case basis determined which rights were incorporated. In 1947 in Everson v. Board of Education, the court ruled that the First Amendment’s establishment clause was fundamental and therefore applied to the states. The court explained the establishment clause:
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. . . . In the words of Thomas Jefferson, the clause against the establishment of religion by law was intended to erect a “wall of separation between Church and State.”
Since this case, the court has decided many other establishment-clause cases. To decide whether a law or government practice violates the establishment clause, the court has usually relied on the Lemon test (adopted in the 1971 case of Lemon v. Kurtzman). To be constitutional under the Lemon test, the law must do three things:
1. it “must have a secular legislative purpose . . .”
2. “its principal or primary effect must be one that neither advances nor inhibits religion”
3. the law “must not foster ‘an excessive government entanglement with religion.’ “
In this activity, students role play the U.S. Supreme Court. They apply the Lemon test to particular cases challenging laws or practices as unconstitutional violations of the establishment clause.
1. Divide the class into groups of three to five students. Assign each group one of the cases below.
2. Each group should:
a. Discuss its case and apply the Lemon test to it.
b.Decide whether the law or practice violates the establishment clause.
c. Be prepared to report to the class on its decision and reasons for it.
3. Regroup as a class and discuss each case.
A. A state law authorizes a one-minute period of silence each day in all public schools “for meditation or voluntary prayer.” Wallace v. Jaffree (1985)
B. A state law lets taxpayers on their state income tax return deduct expenses for “tuition, textbooks and transportation” for their children attending elementary or secondary school, including private and religious schools. Mueller v. Allen (1983)
C. A federal law authorizes grants for construction on college campuses (including private and religious colleges). The law bans using funds for building any facility used for religious instruction or worship. After 20 years, however, the college can use the building for any purpose. Tilton v. Richardson (1971)
D. A state law requires the Ten Commandments be posted in every public school classroom. Stone v. Graham (1980)
E. One public school district has a policy of allowing principals of middle and high schools to invite members of the clergy to give prayers at their schools’ graduation ceremonies. The prayers must meet criteria set by the principal such as being non-sectarian. Lee v. Weisman (1992)
F. A policy of a public school district requires elementary teachers to lead their students in reciting the Pledge of Allegiance daily. The pledge contains the words “under God.” Students may choose to opt out of saying the flag salute. Elk Grove School District v. Newdow (2004)
The Supreme Court Decisions
A. Wallace v. Jaffree (1985): Law unconstitutional (6–3 decision). Majority: “The record here not only establishes that [the law’s] purpose was to endorse religion, it also reveals that the enactment of the statute was not motivated by any clearly secular purpose.”
B. Mueller v. Allen (1983): Law constitutional (5–4 decision). Majority: “The tax deduction in question has the secular purpose of ensuring that the State’s citizenry is well educated . . . . The deduction does not have the primary effect of advancing the sectarian aims of nonpublic schools. . . . [It] does not ‘excessively entangle’ the State in religion.”
C. Tilton v. Richardson (1971): Law constitutional except the 20-year ban must be replaced by one lasting until the building is no longer usable. (5–4 decision). Majority: “The Act itself was carefully drafted to ensure that the federally subsidized facilities would be devoted to the secular and not the religious function of the recipient institutions.”
D. Stone v. Graham (1980): Law unconstitutional (6–3 decision). Majority: “The pre-eminent purpose of posting the Ten Commandments, which do not confine themselves to arguably secular matters, is plainly religious in nature, and the posting serves no constitutional educational function.” A state law requires the Ten Commandments be posted in every public school classroom.
E. Lee v. Weisman (1992): Law unconstitutional (5–4 decision). Majority: “State officials here direct the performance of a formal religious exercise at secondary schools’ promotional and graduation ceremonies. [The principal’s] decision that prayers should be given and his selection of the religious participant are choices attributable to the State. Moreover, through the pamphlet and his advice that the prayers be nonsectarian, he directed and controlled the prayers’ content.
F. Elk Grove School District v. Newdow (2004): The court did not decide the case, but rejected the plaintiff’s claim on a technicality.
University of California Museum of Paleontology: Understanding Evolution Information and lessons on evolution.
PBS: Evolution Companion site to the television miniseries travels the world to examine evolutionary science and the profound effect it has had on society and culture.
National Geographic: Was Darwin Wrong? Article and links.
Science Magazines on Evolution:
AboutDarwin.com Information on the life and times of Darwin.
Darwin Day Celebration Resources on the life of Darwin and evolution.
Study Guides on Evolution:
Text of Origin of Species:
LibiVox: Origin of Species MP3 files of reading of the book.
Cambridge University: The Complete Works of Charles Darwin Online Darwin’s complete publications, many handwritten manuscripts, and a bibliography and manuscript catalogue; also hundreds of biographies, obituaries, reviews, reference works, and more.
Oyez: Epperson v. Arkansas A brief summary of the case with links to the written opinion.
Further Readings: Epperson v. Arkansas A short overview of the case.
Text of Supreme Court Case:
McLean v. Arkansas Documentation Project Trial transcripts, depositions, the court’s decision, and other legal material from the case.
Text of the Decision: Talk Origins Archive: McLean v. Arkansas Board of Education
Oyez: Edwards v. Aguillard A brief summary of the case with links to the oral argument, briefs, and written opinion.
American Law & Legal Information: Edwards v. Aguillard Summary and overview.
Text of the Case:
Behe’s Empty Box Reviews and criticisms of Michael Behe’s book Darwin’s Black Box: The Biochemical Challenge to Evolution.
CSICOP: Creation & Intelligent Design Watch A collection of articles critical of intelligent design from Skeptical Inquirer magazine.
Skeptic: Religion Scroll down for a collection of articles critical of intelligent design and creationism.
New Yorker: Devolution Article critical of intelligent design.
Slate: The “New” Creationism Article critical of intelligent design by Robert Wright.
Origins A site with many articles favoring intelligent design.
News Media Coverage:
PBS NOVA: Intelligent Design on Trial Companion web site for the television documentary on the trial.
Pepper Hamilton LLP: The ‘Intelligent Design’ Case The plaintiff’s law firm provides information on the case.
Text of the Judge’s Decision:
Alt.Weeklies: Intelligent Design News reporting from more than 100 alternative news weeklies.
Intelligent Design Education (PDF file)
Montana Law Review:
Disaster in Dover (PDF file)
Rebuttal to Irons (PDF file)
American Scientific Affiliation: Creation/Evolution Page Resources on evolution from a group of scientists who are Christians. The group takes no official stand on evolution.
Organizations that oppose teaching ID or creationism in science classes:
ACLU: Religion and Schools Information on this subject from an organization against teaching intelligent design in science classes.
Americans United for Separation of Church and State: Evolution vs. Creationism Organization opposed to teaching creationism or intelligent design in science classes.
Advancing Science, Serving Society: Evolution on the Front Line Background materials on the controversy over teaching evolution and links to resources on evolution from an organization supporting the teaching of evolution in schools.
Citizens for Science A network of grassroots organizations devoted to protecting and promoting science education.
Organizations that support the teaching of creationism or intelligent design in science classes:
American Center for Law and Justice: Curriculum Matters Organization that supports the teaching of intelligent design in science classes.
Institute for Creation Research Organization does scientific research, educational programs, and media presentations on the accuracy and authority of the Bible.
Discovery Institute: Center for Science and Culture A think tank supporting the theory of intelligent design.
Intelligent Design and Evolution Awareness (IDEA) Center Organization dedicated to promoting intelligent design theory and better discussions of it. Includes a good collection of Creation & Evolution Links.
Access Research Network Organization that provides accessible information on science, technology, and society from an intelligent design perspective.
Panda’s Thumb A blog defending the integrity of science.
Evolution Blog Commentary from a mathematician on the dispute between evolution and creationism.
Evolving Thoughts A scientist’s blog on evolution, culture, philosophy, and chocolate.
Uncommon Descent A blog favoring intelligent design.
Michael Behe’s Amazon Blog The blog of the leading scientific proponent of intelligent design.
Evolution News & Views A blog sympathetic to ID that analyzes coverage in the media and delivers information on the debate.
Exploring Constitutional Conflicts: The Evolution Controversy Good overview and many links.
Talk Origins Archive The archive provides mainstream scientific responses to FAQs and rebuts assertions of those advocating intelligent design or other forms of creationism.
Evolution Resources From the National Academies Books, position statements, and additional resources on evolution education and research produced by the National Academies.
Stand Up for Real Science A site that encourages school districts to reject long-refuted criticisms of evolution in favor of curriculum that represents the viewpoints of mainstream science.
CSICOP: Creation & Intelligent Design Watch A site critical of creationism. CSICOP stands for Committee for the Scientific Investigation of Claims of the Paranormal.
Evolution Education Wiki Essays, book reviews and an encyclopedia of evolution, creationism and related topics.
Baylor University: Dawson Institute: Links to Current Issues on Church-State Huge collection of links to organizations and web sites related to religion and politics and contemporary church-state issues.
Answers in Genesis Site defending that the Bible, particularly the Book of Genesis, provides the best explanation of creation.
Creationism Science and the Law: The Arkansas Case Edited by Marcel C. LaFollette.
Evolution v. Creationism: An Introduction By Eugenie Scott.
The Evolution-Creation Struggle By Michael Ruse.
Living with Darwin: Evolution, Design, and the Future of Faith By Philip Kitcher.