Arkansas and Louisiana; The Death of Creation "Science"

by Lenny Flank

(c) copyright 2006

By 1980, creation "science", with political support from the Reaganite right wing of the Republican Party, reached the pinnacle of its power. In January 1979, the Institute for Creation Research, the largest creationist group in the US, had bragged in its newsletter, "Efforts to introduce the teaching of the scientific evidence for the creation model of origins, distinctly apart from the use of any part of the Bible, along with the evolution model at the state and local level is meeting with increasing success. The scientific, educational, and Constitutional basis for this approach has been set forth in a number of Impact articles and in booklet form. It has recently been given strong support by an article in the Yale Law Journal. Action to implement the teaching of the creation model along with the evolution model has been taken by the Columbus, Ohio and the Dallas school districts, among others. Some action has been taken at the state level in several states, most recently in South Carolina, as described later in this article. Mr. Paul Ellwanger of Anderson, South Carolina, after many months of effort, appears to have succeeded in efforts to have the scientific evidence for the creation model presented in his school district. The school board of the local district, apparently due mainly to the opposition of the district superintendent, refused several requests even to hear Mr. Ellwanger’s proposal. Mr. Ellwanger refused to be discouraged, and his persistence is now being rewarded." (ICR Impact #67, Jan 1979)

Ellwanger, the head of a creationist organization in South Carolina called "Citizens for Fairness in Education", had based his arguments on an article written by Wendell Bird (who would shortly afterwards become the ICR's staff lawyer) in the Yale Law Journal. Bird repeated his arguments in several ICR newsletters:

"Belief in the general theory of evolution is totally contrary to belief in the doctrine of divine creation. The evolutionary theory teaches that matter has always existed and that the earth evolved to its present form, while Genesis says that there was a beginning and that the earth was specially created by God. Evolution claims that non-living material developed into a living organism and that this simple life developed into fish, then amphibia, then reptiles, then mammals; but the Bible says that God created life from nothing and that he created all living kinds. The public school theory asserts that man evolved from an ape-like ancestor, while the Christian doctrine is that Adam and Eve were created by God. The evolutionary theory requires that continuous natural processes have shaped the face of the earth, while Genesis teaches that a worldwide flood altered the features of the world. In teaching only evolution, public schools effectively undermine the convictions of Christian students and prejudice unbelievers against Christianity." (ICR Impact #69, March 1979)

"Classroom instruction that presents only evolution without an alternative theory puts a burden on religious freedom. Teaching only one theory of the origin of life and man indoctrinates creationist students in that evolutionary theory, and the Supreme Court has ruled that public schools cannot undermine religious beliefs. Exposing pupils to only hostile instruction prevents creationists from separating from "the unfruitful works of darkness," and courts have held that schools cannot violate separatist practices."

"Public schools can teach scientific creationism along with evolution to end their violation of religious freedom. The schools can be neutral by presenting scientific evidences for creation when they present arguments for evolution.

Scientific creationism teaches that the universe and the earth were specially created, and that life was specially created, emphasizing that complex plants and animals suddenly appear in the fossil record and that scientific experiments have not produced life. This theory maintains that original kinds of plants and animals have been stable, emphasizing that fossil gaps occur regularly between different kinds and that transitional forms between the original kinds have not been unearthed. The scientific creationist theory also proposes that the second law of thermodynamics (a general tendency toward disorder) applies to the universe and life, preventing the earth from evolving from a disordered universe, or life from evolving from non-living molecules, or complex plants and animals from evolving from simple forms. Scientific creationism also argues that a worldwide flood happened in history, providing the best explanation of the fossil record, and that creation of the earth and life did not occur billions of years ago, pointing out the questionable assumptions of radiometric dating methods while noting the alternate dating methods that give young ages for the earth and life.

Public schools either could teach scientific creationism as a unit within a course that discusses the evolutionary theory, or they could offer it at each point where the course mentions evolution. Text materials that present scientific creationism are available for teachers and students. But how does scientific creationism differ from religious doctrine?

The Criticism: Scientific Creationism Does Not Involve Religious Doctrine

The First Amendment of the Constitution not only protects freedom of religion, but also prohibits establishment of any religion. The Supreme Court has ruled that this provision prohibits public schools from being unneutral among different religions by instituting classroom prayer or Bible reading. Many Christians support the school prayer decision, because they do not believe that public schools should teach that God is the father of all men and hears prayers by nonChristian students by a classroom prayer beginning "Our Father." And many Christians support the Bible reading decision, because they do not believe that non-Christian teachers should be given the opportunity to pervert Biblical truth in classroom Bible reading.

But the Supreme Court has said, on the other hand, that the establishment clause does not prevent schools from teaching non-religious material that is consistent with religious belief, and the Court has noted that the Constitution does prevent schools from being hostile to any religion or favoring a secularistic religion.

Is instruction in scientific creationism an establishment of religion? Scientific creationism is not a religious doctrine, and unlike classroom prayer and Bible reading it can be taught in public schools. Instruction in scientific creationism involves presentation of the scientific evidence for creation rather than use of Genesis in the classroom. For example, it discusses the evidence that man does not have an ape-like ancestor rather than the Biblical statement that God created Adam and Eve; it summarizes the scientific proof that a worldwide flood shaped this planet's geology rather than the scriptural teaching that Noah and his family survived the flood in an ark. As Dr. Henry M. Morris has said so well, "creation is as scientific as evolution and … evolution is as religious as creation." (ICR Impact #69, March 1979)

A comprehensive article is "Freedom of Religion and Science Instruction in Public Schools," published in the Yale Law Journal (Jan. 1978 issue), by the author of this paper. That article argues that instruction exclusively in evolution violates the Constitution's protection of free religious exercise, and that instruction in both evolution and scientific creationism is permitted by the Constitution's prohibition against state establishment of religion.

Creationists also should read the article by this author published in the Harvard Journal of Law & Public Policy entitled "Freedom from Establishment and Unneutrality in Public School Instruction and Religious School Regulation." That article discusses the proper construction of the establishment clause of the First Amendment, just as the Yale Law Journal article discusses the proper construction of the free exercise clause of that Amendment. It then shows how exclusive instruction in public school classrooms in evolution abridges the establishment clause, and how balanced presentation of both scientific creationism and evolution conforms to that clause." (ICR Impact #70, April 1979)

"A word of caution: Creationists working to introduce creation into public schools must distinguish sharply between scientific creationism and religious creationism. Scientific creationism consists of the scientific evidences for creation, while religious creationism consists of the Biblical doctrines of creation. Scientific creationism can be taught in public schools, while religious creationism cannot under current law. Creationists approaching public schools must avoid reference in discussions, resolutions, or classroom materials, to the Bible, Adam, the fall, or Noah, except in showing that evolution is wholly contrary to religious convictions of many individuals." (ICR Impact #70, April 1979)

Shortly after this, ICR published a "Model Resolution" that parroted all of Bird's legal arguments:

"This sample "Resolution" has been prepared by attorney Wendell R. Bird, author of Impact Series articles 69 and 70 (Acts & Facts,March and April 1979) and is intended as a prepared resolution for local citizens' groups seeking to obtain a fair presentation of the creation/evolution question in the schools of their own areas. It can be modified as appropriate for local conditions.

Please note that this is a suggested resolution, to be adopted by boards of education, not legislation proposed for enactment as law. ICR has always taken the position that the route of education and persuasion on this issue is more fruitful in the long run than that of coercion. If teachers are permitted and encouraged to present both models with appropriate materials provided by their Board, we are confident that more good will actually be accomplished than in any other way.

This Board of Education adopts the following Resolution concerning balanced presentation of alternate scientific theories of origins for all public secondary schools and elementary schools in this area.

WHEREAS,

I. The underlying purposes of public education are to assist students in their search for truth, to provide academic freedom for students' differing values and beliefs, and to remain neutral toward students' diverse religious and moral convictions.

II. Attendance of those students who are at public schools is compelled by law, and school taxes from their parents and other citizens are mandated by law.

III. The subject of the origin of the universe, earth, life, and man is treated within many public school courses, such as biology, life science, anthropology, sociology, and often also in physics, chemistry, world history, philosophy, and social studies.

IV. Only the theory of evolution is presented to students in virtually all courses that discuss the subject of origins, and no alternative theory of origins is presented.

V. The theory of evolution is not an unquestionable fact of science, because evolution cannot be experimentally observed or fully verified or logically falsified, and because the theory of evolution is not accepted by some scientists.

VI. The theory of evolution is contrary to the religious convictions or moral convictions of many students and parents, including individuals of many different religious faiths and with diverse personal beliefs.

VII. Public school presentation of only the theory of evolution without any alternative theory of origins abridges the Constitution's protection of freedom of religious exercise for students and parents, because it undermines their religious convictions, violates their separatist practices, compels their unconscionable statements, and hinders religious training by parents.

VIII. Public school presentation of only the theory of evolution without any alternative theory also violates the Constitution's protection of freedom of belief for students and parents and in doing so hinders the purpose of education by impeding their search for truth, denying them academic freedom, and restricting scientific objectivity.

IX. Public school presentation of only the theory of evolution without any alternative theory also abridges the Constitution's prohibition against establishment of religion, because it produces hostility toward many theistic religions and causes preference to religious Liberalism, Humanism, and other religious faiths.

X. Presentation of only one theory rather than alternate theories of origins is not required by any compelling interest of the State.

XI. Exemption of such students from a course or class presenting only the theory of evolution does not provide an adequate remedy, because any request for exemption would probably be prevented by pressure from fellow students, respect for teacher opinions, and need for other course material missed.

XII. The theory of special creation is an alternative model of origins at least as satisfactory as the theory of evolution, and that theory of special creation can be presented from a strictly scientific standpoint without reference to religious doctrine (special creation from a strictly scientific standpoint is hereinafter referred to as "scientific creationism"), because many scientists accept the theory of scientific creationism, and because scientific evidences have been presented for the theory of scientific doctrine.

XIII. Public school presentation of both the theory of evolution and the theory of scientific creationism would not violate the Constitution's prohibition against establishment of religion, because it would involve presentation of the scientific evidences for each theory rather than any religious doctrine.

XIV. Most citizens, whether they personally believe in evolution or creation, favor balanced treatment in public schools of alternative scientific theories of origins for better guiding students in their search for truth, and favor a neutral approach toward subjects affecting the religious or moral convictions of students.

XV. School districts in at least five states are currently teaching both theories of origins or are implementing instruction in both theories.l4

THEREFORE, the Board of Education hereby adopts as an official Resolution the requirement that:

Public secondary and elementary schools must give balanced treatment to the theory of scientific creationism and the theory of evolution in classroom lectures as a whole in each individual course, in textbook materials as a whole for each course, in library materials as a whole for any subject, and in other educational programs, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe.

Treatment of either the theory of evolution or the theory of scientific creationism must be limited to scientific evidences and must not include religious doctrine.

This Resolution takes effect at the beginning of the next school year unless the Board of Education upon adopting this specifies otherwise.

CLARIFICATIONS

This Resolution does not require or permit instruction in any religious doctrine or materials. This Resolution does not require any instruction in the subject of origins, but simply requires instruction in both scientific theories (of evolution and scientific creationism) if public schools choose to teach either. This Resolution does not require each individual textbook or library book to give balanced treatment to the two theories, but simply requires the textbooks as a whole in a course or the library books as a whole on a topic to give balanced treatment to the theories of evolution and scientific creationism; it does not require any school books to be discarded. This Resolution does not require each individual classroom lecture in a course to give such balanced treatment, but simply requires the lectures as a whole to give balanced treatment; it permits one unit to present the theory of evolution and a separate unit to present the theory of scientific creationism.

We are not trying to bring the Bible or Genesis into public schools. We are not trying to exclude evolution from public schools, unless creation is also excluded.

We are asking public schools to be neutral between theories of the origin of the world, life, and man, and to give academic freedom of choice to students between these theories.

We are asking public schools to present the scientific evidences for creation along with the scientific evidences for evolution." (ICR Impact #71, May 1979)

Ellwanger, in turn, modified this Resolution slightly and turned it into a Model Bill to grant "equal time" between "evolution science" and "creation science". ICR had intended for its Resolution to be put into effect only by local school districts (where the fundamentalists had enormous political influence). Ellwanger, however, used his connections to Republican political figures to have the Model Bill introduced into state legislatures with the intention of making it law. By 1980, 16 different states were considering versions of Ellwanger's model bill. The first test of it came in 1981, in Arkansas.

In 1981, the state of Arkansas passed a law, Act 590, based on Ellwanger's Model Bill, mandating that "creation science" be given equal time in public schools with evolution:

"AN ACT TO REQUIRE BALANCED TREATMENT OF CREATION-SCIENCE AND EVOLUTION- SCIENCE IN PUBLIC SCHOOLS; TO PROTECT ACADEMIC FREEDOM BY PROVIDING STUDENT CHOICE; TO ENSURE FREEDOM OF RELIGIOUS EXERCISE; TO GUARANTEE FREEDOM OF BELIEF AND SPEECH; TO PREVENT ESTABLISHMENT OF RELIGION; TO PROHIBIT RELIGIOUS INSTRUCTION CONCERNING ORIGINS; TO BAR DISCRIMINATION ON THE BASIS OF CREATIONISTS OR EVOLUTIONIST BELIEF; TO PROVIDE DEFINITIONS AND CLARIFICATIONS; TO DECLARE THE LEGISLATIVE PURPOSE AND LEGISLATIVE FINDINGS OF FACT; TO PROVIDE FOR SEVERABILITY OF PROVISIONS; TO PROVIDE FOR REPEAL OF CONTRARY LAWS; AND TO SET FORTH AN EFFECTIVE DATE."

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

SECTION 1. Requirement for Balanced Treatment. Public schools within this State shall give balanced treatment to creation-science and to evolution-science. Balanced treatment to these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe.

SECTION 2. Prohibition against Religious Instruction. Treatment of either evolution-science or creation-science shall be limited to scientific evidences for each model and inferences from those scientific evidences, and must not include any religious instruction or references to religious writings.

SECTION 3. Requirement for Nondiscrimination. Public schools within this State, or their personnel, shall not discriminate, by reducing a grade of a student or by singling out and making public criticism, against any student who demonstrates a satisfactory understanding of both evolution-science and creation-science and who accepts or rejects either model in whole or part.

SECTION 4. Definitions. As used in this Act:

(a) "Creation-science" means the scientific evidences for creation and inferences from those scientific evidences. Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds.

(b) "Evolution-science" means the scientific evidences for evolution and inferences from those scientific evidences. Evolution-science includes the scientific evidences and related inferences that indicate: (1) Emergence by naturalistic processes of the universe from disordered matter and emergence of life from nonlife; (2) The sufficiency of mutation and natural selection in bringing about development of present living kinds from simple earlier kinds; (3) Emergency [sic] by mutation and natural selection of present living kinds from simple earlier kinds; (4) Emergence of man from a common ancestor with apes; (3) Explanation of the earth's geology and the evolutionary sequence by uniformitarianism; and (6) An inception several billion years ago of the earth and somewhat later of life.

(c) "Public schools" mean public secondary and elementary schools.

SECTION 5. Clarifications. This Act does not require or permit instruction in any religious doctrine or materials. This Act does not require any instruction in the subject of origins, but simply requires instruction in both scientific models (of evolution-science and creation-science) if public schools choose to teach either. This Act does not require each individual textbook or library book to give balanced treatment to the models of evolution-science and creation-science; it does not require any school books to be discarded. This Act does not require each individual classroom lecture in a course to give such balanced treatment, but simply requires the lectures as a whole to give balanced treatment; it permits some lectures to present evolution-science and other lectures to present creation-science.

SECTION 6. Legislative Declaration of Purpose. This Legislature enacts this Act for public schools with the purpose of protecting academic freedom for students' differing values and beliefs; ensuring neutrality toward students' diverse religious convictions; ensuring freedom of religious exercise for students and their parents; guaranteeing freedom of belief and speech for students; preventing establishment of Theologically Liberal, Humanist, Nontheist, or Atheist religions; preventing discrimination against students on the basis of their personal beliefs concerning creation and evolution; and assisting students in their search for truth. This Legislature does not have the purpose of causing instruction in religious concepts or making an establishment of religion.

SECTION 7. Legislative Findings of Fact. This Legislature finds that:

(a) The subject of the origin of the universe, earth, life, and man is treated within many public school courses, such as biology, life science, anthropology, sociology, and often also in physics, chemistry, world history, philosophy, and social studies.

(b) Only evolution-science is presented to students in virtually all of those courses that discuss the subject of origins. Public schools generally censor creation-science and evidence contrary to evolution.

(c) Evolution-science is not an unquestionable fact of science, because evolution cannot be experimentally observed, fully verified, or logically falsified, and because evolution-science is not accepted by some scientists.

(d) Evolution-science is contrary to the religious convictions or moral values or philosophical beliefs of many students and parents, including individuals of many different religious faiths and with diverse moral values and philosophical beliefs.

(e) Public school presentation of only evolution-science without any alternative model of origins abridges the United States Constitution's protections of freedom of religious exercise and of freedom of belief and speech for students and parents, because it undermines their religious convictions and moral or philosophical values, compels their unconscionable professions of belief, and hinders religious training and moral training by parents.

(f) Public school presentation of only evolution-science furthermore abridges the Constitution's prohibition against establishment of religion, because it produces hostility toward many Theistic religions and brings preference to Theological Liberalism, Humanism, Nontheistic religions, and Atheism, in that these religious faiths general include a religious belief in evolution.

(g) Public school instruction in only evolution-science also violates the principle of academic freedom, because it denies students a choice between scientific models and instead indoctrinates them in evolution-science alone.

(h) Presentation of only one model rather than alternative scientific models of origins is not required by any compelling interest of the State, and exemption of such students from a course or class presenting only evolution-science does not provide an adequate remedy because of teacher influence and student pressure to remain in that course or class.

(i) Attendance of those students who are at public schools is compelled by law, and school taxes from their parents and other citizens are mandated by law.

(j) Creation-science is an alternative scientific model of origins and can be presented from a strictly scientific standpoint without any religious doctrine just as evolution-science can, because there are scientists who conclude that scientific data best support creation-science and because scientific evidences and inferences have been presented for creation-science.

(k) Public school presentation of both evolution-science and creation-science would not violate the Constitution's prohibition against establishment of religion, because it would involve presentation of the scientific evidences and related inferences for each model rather than any religious instruction.

(l) Most citizens, whatever their religious beliefs about origins, favor balanced treatment in public schools of alternative scientific models of origins for better guiding students in their search for knowledge, and they favor a neutral approach toward subjects affecting the religious and moral and philosophical convictions of students.

SECTION 8. Short Title. This Act shall be known as the "Balanced Treatment for Creation-Science and Evolution-Science Act."

SECTION 9. Severability of Provisions. If any provision of this Act is held invalid, that invalidity shall not affect other provisions that can be applied in the absence of the invalidated provisions, and the provisions of this Act are declared to be severable.

SECTION 10. Repeal of Contrary Laws. All State laws or parts of State laws in conflict with this Act are hereby repealed.

SECTION 11. Effective Date. The requirements of the Act shall be met by and may be met before the beginning of the next school year if that is more than six months from the date of enactment, or otherwise one year after the beginning of the next school year, and in all subsequent school years. (Act 590, Arkansas Legislature, 1981)

The Bill was signed into law on March 19, 1981. On May 27, 1981, the ACLU filed suit on behalf of a number of plaintiffs to have the law declared unconstitutional on church/state grounds. The plaintiffs, who included a dozen or so clergymen of differing denominations, argued that creation "science" was nothing more than fundamentalist Biblical literalism pretending to be science. Creationists from the Creation Research Society and the Institute for Creation Research argued to the court that their viewpoint was a scientific model and not based at all on religion. ICR's own lawyer, Wendell Bird, sought to have himself appointed as a special state attorney for Arkansas so he could be allowed to argue the case himself. His request was refused, but he stayed on as an advisor to the state attornies. ICR's chief debator, Dr Duane Gish, also advised the state attornies, and was often seen passing them notes in court regarding various testimony.

Judge William Overton, after listening to both sides, was unconvinced by the creationists' arguments, and ruled that creation "science" was not a science, but was merely an attempt to introduce religious beliefs into the public school system, and was therefore unconstitutional. "The evidence is overwhelming," Overton wrote, "that both the purpose and the effect of Act 590 is the advancement of religion in the public schools." (Overton Opinion, McLean v Arkansas, 1981) Citing a number of letters and statements made by the creationists themselves, the judge concluded that "Act 590 is a religious crusade, coupled with a desire to conceal this fact". (Overton Opinion, McLean v Arkansas, 1981)

"The proof in support of creation science consisted almost entirely of efforts to discredit the theory of evolution through a rehash of data and theories which have been before the scientific community for decades. The arguments asserted by creationists are not based upon new scientific evidence or laboratory data which has been ignored by the scientific community." (Overton Opinion, McLean v Arkansas, 1981)

"The creationists' methods do not take data, weigh it against the opposing scientific data, and thereafter reach the conclusions stated in Section 4(a). Instead, they take the literal wording of the Book of Genesis and attempt to find scientific support for it." (Overton Opinion, McLean v Arkansas, 1981)

The creationists, of course, had argued that creationism was not religious at all, but was purely based on science. Judge Overton flatly rejected that assertion:

"Defendants argue that : (1) the fact that 4(a) conveys idea similar to the literal interpretation of Genesis does not make it conclusively a statement of religion; (2) that reference to a creation from nothing is not necessarily a religious concept since the Act only suggests a creator who has power, intelligence and a sense of design and not necessarily the attributes of love, compassion and justice; and (3) that simply teaching about the concept of a creator is not a religious exercise unless the student is required to make a commitment to the concept of a creator.

The evidence fully answers these arguments. The idea of 4(a)(1) are not merely similar to the literal interpretation of Genesis; they are identical and parallel to no other story of creation.

The argument that creation from nothing in 4(a)(1) does not involve a supernatural deity has no evidentiary or rational support. To the contrary, "creation out of nothing" is a concept unique to Western religions. In traditional Western religious thought, the conception of a creator of the world is a conception of God. Indeed, creation of the world "out of nothing" is the ultimate religious statement because God is the only actor. As Dr. Langdon Gilkey noted, the Act refers to one who has the power to bring all the universe into existence from no0thing. The only "one" who has this power is God.

The leading creationist writers, Morris and Gish, acknowledge that the idea of creation described in 4(a)(1) is the concept of creation by God and make no pretense to the contrary. The idea of sudden creation from nothing, or creatio ex nihilo, is an inherently religious concept. (Vawter, Gilkey, Geisler, Ayala, Blount, Hicks.)

The argument advanced by defendants' witness, Dr. Norman Geisler, that teaching the existence of God is not religious unless the teaching seeks a commitment, is contrary to common understanding and contradicts settled case law. (Overton Opinion, 1981)

Judge Overton also considered the creationist "two models" approach, in which any evidence critical of evolution was held, ipso facto, to constitute evidence for creationism:

"Creationists have adopted the view of Fundamentalists generally that there are only two positions with respect to the origins of the earth and life: belief in the inerrancy of the Genesis story of creation and of a worldwide flood as fact, or a belief in what they call evolution.

Henry Morris has stated, "It is impossible to devise a legitimate means of harmonizing the Bible with evolution." This dualistic approach to the subject of origins permeates the creationist literature. "

The approach to teaching "creation science" and "evolution-science" found in Act 590 is identical to the two-model approach espoused by the Institute for Creation Research and is taken almost verbatim from ICR writings. It is an extension of Fundamentalists' view that one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution."

In efforts to establish "evidence" in support of creation science, the defendants relied upon the same false premise as the two model approach contained in Section 4, i.e., all evidence which criticized evolutionary theory was proof in support of creation science. For example, the defendants established that the mathematical probability of a chance chemical combination resulting in life from non-life is as remote that such an occurrence is almost beyond imagination. Those mathematical facts, the defendants argue, are scientific evidences that life was the product of a creator. While the statistical figures may be impressive evidence against the theory of chance chemical combinations as an explanation of origins, it requires a leap of faith to interpret those figures so as to support a complex doctrine which includes a sudden creation from nothing, a worldwide flood, separate ancestry of man and apes, and a young earth.

The defendants' argument would be more persuasive if, in fact, there were only two theories or idea about the origins of life and the world. That there are a number of theories was acknowledge by the State's witnesses, Dr. Wickramasinghe and Dr. Geisler. Dr. Wickramasinghe testified at length in support of a theory that life on earth was "seeded" by comets which delivered genetic material and perhaps organisms to the earth's surface from interstellar dust far outside the solar system. The "seeding" theory further hypothesizes that the earth remains under the continuing influence of genetic material from space which continues to affect life. While Wickramasinghe's theory about the origins of life on earth has not received general acceptance within the scientific community, he has, at least, used scientific methodology to produce a theory of origins which meets the essential characteristics of science.

The Court is at a loss to understand why Dr. Wickramasinghe was called in behalf of the defendants. Perhaps it was because he was generally critical of the theory of evolution and the scientific community, a tactic consistent with the strategy of the defense. Unfortunately for the defense, he demonstrated that the simplistic approach of the two model analysis of the origins of life is false.

The proof in support of creation science consisted almost entirely of efforts to discredit the theory of evolution through a rehash of data and theories which have been before the scientific community for decades. The arguments asserted by the creationists are not based upon new scientific evidence or laboratory data which has been ignored by the scientific community. (Overton Opinion, 1981)

"The two model approach of the creationists," Overton concluded, " is simply a contrived dualism which has not scientific factual basis or legitimate educational purpose. It assumes only two explanations for the origins of life and existence of man, plants and animals: it was either the work of a creator or it was not. Application of these two models, according to creationists, and the defendants, dictates that all scientific evidence which fails to support the theory of evolution is necessarily scientific evidence in support of creationism and is, therefore, creation science "evidence" in support of Section 4(a)." (Overton Opinion, 1981)

The creationists have always cited several reasons why they believe creationism should be taught in the public schools, and one of these, they flatly admit, is that it encourages belief in a personal Deity and thus encourages a "Christian lifestyle": "There is no greater stimulus to responsible behavior and earnest effort, as well as honesty and consideration for others, than the awareness that there may well be a personal Creator to whom one must give account." (Morris, Scientific Creationism, 1974, p. 14) And this, of course, is the real reason why fundamentalists wanted to force the Biblical account of origins into the classroom.

However, since the creationists knew that the US Constitution prohibits the teaching of religious doctrines in the public schools, they were unable to make these arguments in court, and instead had to resort to a two-pronged strategy-- arguing, in an inversion that would have made Orwell proud, that (1) creationism is science, not religion, and (2) evolution is religion, not science. As Morris summarizes, "Since creationism can be discussed effectively as a scientific model, and since evolution is fundamentally a religious philosophy rather than a science, it is clearly unsound educational practice and even unconstitutional for evolution to be taught and promoted in the public schools to the exclusion or detriment of special creation. . . . Creationist children and parents are thereby denied 'equal protection of its laws' and the state has, to all intents and purposes, made a law establishing the religion of evolutionary humanism in its schools." (Morris, 1975, p. 14)

Each of these arguments was dealt with by Judge Overton. Based on the testimony and the statements of the creationists themselves, Overton flatly concluded that "Creation science is not science." . . . The only inference which can be drawn is that the Act was passed with the specific purpose by the General Assembly of advancing religion. . . . It was simply and purely an effort to introduce the Biblical version of creation into the public school curricula." (Overton Opinion, McLean v Arkansas, 1981). The Arkansas law, Overton ruled, "lacks legitimate educational value because 'creation science' as defined in that section is simply not science". (Overton Opinion, McLean v Arkansas, 1981)

The cynicism and intellectual dishonesty of the creationist movement was best illustrated by documents presented during the Arkansas trial, which showed that the creationists were advising potential witnesses to downplay the religious dogma behind creationism in an attempt to avoid having the law declared unconstitutional. Paul Ellwanger, the creationist who actually drafted the Arkansas law, wrote to one supporter: "It would be very wise, if not actually essential, that all of us who are engaged in this legislative effort be careful not to present our position and our work in a religious framework. For example, in written communications that might somehow be shared with those other persons whom we may be trying to convince, it would be well to exclude our own personal testimony and/or witness for Christ, but rather, if we are so moved, to give that testimony on a separate attached note." (Attachment to Ellwanger deposition, McLean v Arkansas, 1981, cited in Overton Opinion) In another letter, Ellwanger wrote: "We'd like to suggest that you and your co- workers be very cautious about mixing creation-science with creation-religion. . . Please urge your co-workers not to allow themselves to get sucked into the 'religion' trap of mixing the two together, for such mixing does incalculable harm to the legislative thrust." (Attachment to Miller deposition, McLean v Arkansas, 1981, cited in Overton Opinion). And in yet another letter, he says, "If you have a clear choice between having grassroots leaders of this statewide bill promotion effort to be ministerial or non- ministerial, be sure to opt for the non-ministerial. It does the bill effort no good to have ministers out there in the public forum, and the adversary will surely pick up at this point. . . . . " (Attachment to Ellwanger Deposition, McLean v Arkansas, 1981, cited in Overton Opinion).

Overton also considered the creationist argument that evolution is itself a religion and must be "balanced" by creationism, and rejected that argument. "It is clearly established in case law," Overton ruled, "and perhaps also in common sense, that evolution is not a religion, and that teaching evolution does not violate the Establishment Clause." (Overton Opinion, McLean v Arkansas, 1981) Overton concluded, "If creation science is, in fact, science and not religion, as the defendants claim, it is difficult to see how the teaching of such a science could 'neutralize' the religious nature of evolution. Assuming for the purposes of argument, however, that evolution is a religion or a religious tenet, the remedy is to stop the teaching of evolution; not establish another religion in opposition to it." (Overton Opinion, McLean v Arkansas, 1981)

As for the argument that the teaching of evolution, which is offensive to the religious beliefs of fundamentalist students, infringes upon students in their free exercise of religion, Overton simply and clearly concluded, "The argument has no legal merit." (Overton Opinion, McLean v Arkansas, 1981) Overton cited the Epperson case, in which the US Supreme Court had ruled that "There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles and prohibitions of any religious sect or dogma . . . It forbids alike the preference of a religious doctrine or the prohibition of a theory which is deemed antagonistic to a particular dogma." (US Supreme Court, Epperson v Arkansas , 1968)

The most common argument heard from creationists was the "fairness" approach--since there are two "models" of origins, evolution and creationism, and since neither can be "proved", why not simply present both arguments and let the students decide for themselves which is the better supported? As Morris puts it, "Both models should be taught, as objectively as possible, in public classrooms, giving arguments pro and con for each. Some students and parents believe in creation, some in evolution, and some are undecided . . . This is clearly the most equitable and constitutional approach." (Morris, ICR Impact, January/February 1973)

In support of their "fairness" argument, the creationists liked to cite a long string of opinion polls and surveys which demonstrated widespread support for the idea. In 1981, during the Arkansas trial, an NBC News poll showed that 76% of the public thought that both creation and evolution should be taught in the schools, with 10% believing that only the creation story should be taught, and only 7% believing that evolution alone should be taught. A 1986 study of American college students concluded that 50% believed in the Divine Creation of life (33% of college students, it was also pointed out, believed in flying saucers). And in 1987, a survey of college students in several states concluded that approximately half of American students believed that both creationism and evolution should be taught in schools. The percentages ranged from 46% in Connecticut to 47% in California to 57% in Texas. (On the other hand, the percentages were much lower when the question was changed to whether "there is a good deal of scientific evidence against evolution and in favor of the Bible's account of creation"--the percentage in agreement dropped to 25% in California, 30% in Connecticut and 47% in Texas.)

The creationist "fairness" argument was also dealt with by Judge Overton. Under a Constitutional form of government, Overton pointed out, the rights of a minority are protected against the opinions of even an overwhelming majority. "The application and content of First Amendment principles," Overton concluded, "are not determined by public opinion or by a majority vote. Whether the proponents of Act 590 constitute the majority or minority is quite irrelevant under a constitutional system of government. No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others." (Overton Opinion, McLean v Arkansas, 1981) The First Amendment was clear, Overton ruled, that religious doctrines may not be introduced into public school curricula, whether such an idea was popular or not.

The "fairness" and "balanced treatment" argument of the creationists is, moreover, misleading, since it is not fairness or balanced treatment they wanted. What they really want is for their particular religious views to be adopted and no one else's. The definition of "creation science" given in the Arkansas bill, for instance, is:

" 'Creation-science' includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy and life from nothing, (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism, (3) Changes only within fixed limits of originally created kinds of plants and animals, (4) Separate ancestry for men and apes, (5) Explanation of the earth's geology by catastrophism, including the occurrence of a world- wide flood, and (6) A relatively recent inception of the earth and living kinds." (Arkansas Legislature Act 590, 1981)

This definition rules out all but the young-earth creationist view held by the ICR and CRS. The bill does not give "equal time" or "fairness" to such interpretations as theistic evolutionaries, or even old-earth creationists such as the day-age or gap theorists. The Jehovah's Witnesses, for instance, do not accept evolution, but also do not accept an "explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood", nor do they accept "a relatively recent inception of the earth and living kinds." Under the terms of the creationist "balanced treatment" bills, it would be illegal to teach their view.

By automatically ruling out any religious views but their own, as well as other versions of their own Christian view, the creationists made it obvious that the only "equal time" and "fairness" they are interested in is one that gives a hearing for their viewpoint -- literalist Christian fundamentalism -- and nobody else's.

The "balanced treatment" requirement also presented enforcement difficulties. The bill explicitly states that religious instruction and discussion of religious doctrines must be avoided: "Treatment of either evolution-science or creation-science shall be limited to scientific evidence for each model and inferences from those scientific evidences, and must not include any religious instruction or references to religious writings." (Arkansas Legislature Act 590, 1981) However, as Judge Overton points out, "The Act is self-contradictory and compliance is impossible . . . . There is no way teachers can teach the Genesis account of creation in a secular manner." (Overton Opinion, McLean v Arkansas, 1981) In order to see that the law is upheld, and that no illegal references to religious doctrines or religious writings are introduced into the classroom, the state would have no choice but to scrutinize every creationist textbook and to listen in on classroom discussions.

Overton describes where this process leads: "How is the teacher to respond to questions about a creation suddenly and out of nothing? How will the teacher explain the occurrence of a worldwide flood? How will the teacher explain the concept of a relatively recent inception of the earth? The answer is obvious because the only source of this information is ultimately contained in the Book of Genesis. . . . Involvement of the State in screening texts for impermissible religious references will require State officials to make delicate religious judgments. The need to monitor classroom discussion in order to uphold the Act's prohibition against religious instruction will necessarily involve administrators in questions concerning religion. These continuing involvements of State officials in questions and issues of religion create an excessive and prohibited entanglement with religion." (Overton Opinion, McLean v Arkansas, 1981)

In other words, the creationist "balanced treatment" bill would lead to direct state involvement in religious decisions. The creationists, of course, have no problem with this, since, as we have seen, they would in any case like to do away with the separation between church and state. For those of us who believe in the free expression of religion without interference from the state, however, the prospect of direct state involvement in such religious matters is chilling.

There are other problems with the "balanced treatment" approach. Does the legal requirement for "equal time" mean that biology teachers cannot point out all of the distortions and inaccuracies in the creation "model"? If biology teachers present the creation "model" to their students and then demonstrate that all of the creationist "evidence" is baloney, does that constitute "balanced treatment"? If not, are teachers then to be forced to teach creation "science" as being valid even though they can demonstrate that it is not? Will the state then have to monitor every biology classroom to make sure that no biology teacher illegally points out any errors in creation "science"--in affect mandating that teachers teach creationism as if it were true whether it is or not? In effect, the creationists were attempting to use the political power of the state to force their religious doctrines into the schools, and at the same time make those views legally immune from criticism. And such tactics are intolerable in any democratic form of government.

As theologian Langdon Gilkey writes, the precedent being set here is extraordinarily dangerous: "It is not uncommon for a legislature to mandate subjects that must be included within the curricula of its public schools: so much science, so much civics, so much American and local history, and so on. But it is a new precedent, and an ominous one, when a legislature requires what theories are to be taught within these mandated subjects, how much emphasis is to be given to each, and, by clear implication, what theories may not be taught . . . Whenever the government has determined the content of a curriculum (as for example in the Soviet Union), free inquiry and free debate in education have vanished." (Gilkey, 1985, p. 14) If the creationists succeeded in replacing evolutionary theory with their religious doctrines, it would be a crippling blow to the biological sciences and to science education in the United States, on a par with the devestation that Lysenko wrought in the Soviet Union. As Judge Overton noted in his opinion, "Implementation of Act 590 will have serious and untoward consequences for students, particularly those planning to attend college. Evolution is the cornerstone in modern biology . . Any student who is deprived of instruction as to the prevailing scientific thought on these topics will be denied a significant part of science education. Such a deprivation through the high school level would undoubtedly have an impact upon the quality of education in the state's colleges and universities, especially including the pre- professional and professional programs in the health sciences." (Overton Opinion, McLean v Arkansas, 1981)

And not merely biology would be affected. As writer Phillip Kitcher notes, "Evolutionary biology is intertwined with other sciences, ranging from nuclear physics and astronomy to molecular biology and geology. If evolutionary biology is to be dismissed, then the fundamental principles of other sciences will have to be excised." (Kitcher, 1982, p. 4) The text of Act 590 explicitly points out, "The subject of the origin of the universe, life and man is treated within many public school courses, such as biology, life science, anthropology, sociology, and often also in physics, chemistry, philosophy and social studies." (Arkasas Legislature Act 590, 1981) As a result, the bill goes on to state, the "equal time" provisions require equal treatment of creationism not only in biology classes, but also for all the others-- and not only in the classroom, but also "in library materials, taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials or educational programs deal in any way with the subject of the origin of man, life, the earth or the universe." (Arkansas Legislature Act 590, 1981)

"Creation science," Overton concluded, "has no scientific merit or educational value as science . . . Since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion." (Overton Opinion, McLean v Arkansas, 1981) The Arkansas monkey law was ruled unconstitutional and was thrown out.

The creationists, however, were unbowed. As the state representative who sponsored Act 590 told the newspapers, "If we lose, it won't matter that much. If the law is unconstitutional, it'll be because of something in the language that's wrong . . . . So we'll just change the wording and try again with another bill . . . We got a lot of time. Eventually we'll get one that is constitutional." (Washington Post, December 7, 1981) On the very day that Judge Overton ruled the Arkansas law unconstitutional, the Mississippi State Legislature passed a similar "Balanced Treatment" bill by a vote of 48-4. Within a short time, Ellwanger had produced another Model Bill, titled "Unbiased Presentation of Creation-Science and Evolution-Science Bill", and was peddling it to state legislatures..

Creationists tended to view the Arkansas ruling as a fluke, pointing out that the state Attorney General had refused to allow prominent creationist lawyers to assist in the case (prompting charges from fundamentalists that he "hadn't really been trying" to win the case). Duane Gish whined, "From his decision it is obvious that Judge Overton (as well as most of the news media) completely ignored the scientific evidence presented by the defense witnesses while accepting without question evidence offered by the plaintiffs' witnesses. Many remarks made by Judge Overton during the trial revealed his bias against the creationist side." (ICR Impact #105, March 1982) Wendell Bird sniffled, "The Arkansas district court gave a constitutionally erroneous and factually inaccurate opinion in McLean v. Arkansas Board of Education. It is regrettable that the Arkansas defense did not adequately present or adequately support the strong constitutional arguments that could have been made in favor of balanced treatment of creation-science and evolution-science." Bird lamely asserted, "The Arkansas court is incorrect in stating that creation-science is Genesis. Creation-science consists of scientific discussion rather than biblical discussion or concepts." (ICR Impact #105, March 1982) Bird then offered a ray of hope to ICR supporters:

The constitutionality of balanced treatment of creation-science and evolution-science is also being litigated in the U.S. District Court in Baton Rouge, Louisiana, in Keith v. Louisiana Department of Education. This lawsuit to declare the Louisiana Balanced Treatment Act constitutional was filed by Louisiana legislators, science professors, science teachers, and religious spokesmen (Catholic, Jewish, Muslim, and Agnostic) who are represented by attorneys Bird and Whitehead as special assistant attorneys general for Louisiana.

We are optimistic that the Louisiana lawsuit will result in a judicial opinion that public school instruction in creation-science is constitutional, directly contrary to the Arkansas decision, because it involves a different statute, new and different arguments and support, different expert witnesses, new and different scientific evidence, a different legislative purpose, and an adequate defense. (ICR Impact #105, March 1982)

In Louisiana, where the State Legislature had already passed a "Balanced Treatment" bill mandating equal classroom time for "creation science" and "evolution science", the creationists finally got their chance for an all-out attack, led by Wendell Bird, the creationist lawyer who had drafted the original "balanced treatment" arguments, and who had now won his request to be appointed as a special Louisiana state attorney to argue the case.

The legal history of the Louisiana creationism bill is somewhat convoluted. On December 2, 1981, a group of state legislators, religious representatives and parents (led by the state legislator who had introduced the bill), filed an action in Baton Rouge (Keith v Louisiana) asking the Federal Court to issue a declaratory judgment that the Louisiana law was not unconstitutional and did not violate the separation of church and state. A day later, the ACLU filed a lawsuit of its own in New Orleans, challenging the constitutionality of the law. In June 1982, the Baton Rouge case was dismissed, and the ACLU's case (Edwards v Aguillard) was scheduled for a 1983 trial. The ACLU, however, then filed a motion for summary judgment (an immediate ruling without a trial), on the grounds that the Louisiana Constitution granted the state's Board of Elementary and Secondary Education (BESE) sole authority to set curricula in public schools. The judge agreed and issued a summary finding that the state legislature did not have any authority to mandate what is or isn't taught in science classrooms. That finding was appealed to the Louisiana Supreme Court, which ruled in October 1983, in a 4-3 decision, that the state legislature did after all have the legal authority to pass laws concerning curricula content. So the case was once again scheduled for trial.

The ACLU, however, quickly filed another motion for summary judgment, citing the Mclean decision and arguing that no facts disputed the religious nature of creationism, and that therefore the law was manifestly unconstitutional and there were simply no legal issues to be decided. Federal Judge Adrian Duplantier agreed, and ruled summarily that creation "science" was nothing but religious doctrine, and the Louisiana law was unconstitutional "because it promotes the beliefs of some theistic sects to the detriment of others." (US District Court, Edwards v Aguillard, 1985, cited in Berra, 1990, p. 137) This ruling was upheld by a Judge on the Federal Court of Appeals six months later, who concluded that the only purpose of the law was "to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief." (US Circuit Court, Edwards v Aguillard, 1985). The creationists appealed to the US Supreme Court, petitioning the Justices to issue an order for the Federal Circuit Court to meet "en banc", that is, to have all the appellate judges meet together to hear the arguments.

In June 1987, the Supreme Court ruled against the creationists, concluding by a vote of 7-2 that there was no need for any en banc hearing, since "The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose." (Supreme Court, Edwards v Aguillard, 1987) The real purpose of creation "science", the Court concluded, was "to restructure the science curriculum to conform with a particular religious viewpoint. . . .The pre-eminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind." (US Supreme Court, Edwards v Aguillard, 1987)

"The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment."

"Because the primary purpose of the Creationism Act is to endorse a particular religious belief, the Act furthers religion in violation of the Establishment Clause. . . . The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose." (US Supreme Court, Edwards v Aguillard, 1987)

One of the arguments made by the creationists was that the real purpose of the law was to promote "academic freedom" and not "religion". The Supreme Court rejected this argument:

"The Act's stated purpose is to protect academic freedom. This phrase might, in common parlance, be understood as referring to enhancing the freedom of teachers to teach what they will. The Court of Appeals, however, correctly concluded that the Act was not designed to further that goal. We find no merit in the State's argument that the "legislature may not [have] used the terms 'academic freedom' in the correct legal sense. They might have [had] in mind, instead, a basic concept of fairness; teaching all of the evidence." Even if "academic freedom" is read to mean "teaching all of the evidence" with respect to the origin of human beings, the Act does not further this purpose. The goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science."

"While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham. . . .It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: "My preference would be that neither [creationism nor evolution] be taught." Such a ban on teaching does not promote -- indeed, it undermines -- the provision of a comprehensive scientific education. It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Indeed, the Court of Appeals found that no law prohibited Louisiana public school teachers from teaching any scientific theory. As the president of the Louisiana Science Teachers Association testified, "any scientific concept that's based on established fact can be included in our curriculum already, and no legislation allowing this is necessary." The Act provides Louisiana schoolteachers with no new authority. Thus the stated purpose is not furthered by it."

"Thus we agree with the Court of Appeals' conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting "evolution by counterbalancing its teaching at every turn with the teaching of creationism . . . ."

"In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects."

"We need not be blind in this case to the legislature's preeminent religious purpose in enacting this statute. There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution. It was this link that concerned the Court in Epperson v. Arkansas, which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominate religious purpose, the Court could not ignore that "the statute was a product of the upsurge of 'fundamentalist' religious fervor" that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. After reviewing the history of antievolution statutes, the Court determined that "there can be no doubt that the motivation for the [Arkansas] law was the same [as other anti-evolution statutes]: to suppress the teaching of a theory which, it was thought, 'denied' the divine creation of man." The Court found that there can be no legitimate state interest in protecting particular religions from scientific views "distasteful to them," and concluded "that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. . . . The legislative history therefore reveals that the term "creation science," as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind." (US Supreme Court, Edwards v Aguillard, 1987)

"We do not imply," the Court concluded, "that a legislature could never require that scientific critiques of prevailing scientific theories be taught. Indeed, the Court acknowledged in Stone that its decision forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization. In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause." (US Supreme Court, Edwards v Aguillard, 1987)

As a result of this decision, all existing "Balanced Treatment" laws were thrown out.

The next act in the fundamentalist war against evolution was spelled out in a press release that Wendell Bird sent out after the Supreme Court's Aguillard ruling:

The U.S. Supreme Court held on June 19 that Louisiana's "Act for Balanced Treatment of Creation-Science and Evolution" is unconstitutional because it had an unconstitutional legislative purpose.

However, the Court Ruling was narrow and did not say that teaching creation-science is necessarily unconstitutional if adopted for a secular purpose. In fact, the Court said the exact opposite:

"Teaching a variety of scientific theories about the origins of human-kind to school children might be validly done with the clear secular intent of enhancing the effectiveness of science instruction" (p. 14).

The Supreme Court recognized that teachers "already possess" a flexibility . . . to supplement the present science curriculum with the presentation of theories, besides evolution, about the origin of life (p. 8), and are "free to teach any and all facets of this subject" of "all scientific theories about the origins of humankind" (p. 9).

A powerful dissent by Justice Scalia and Chief Justice Rehnquist argues that "there is ample evidence that the majority is wrong in holding that the Balanced Treatment Act is without secular purpose" (p. 10). They carefully analyzed the legislative history (pp. 10-17), and then the sufficiency of the secular purpose for the Act (pp. 17-27). That dissent acknowledged that creation-science can be scientific (p. 20):*

The Act's reference to "creation" is not convincing evidence of religious purpose. The Act defines creation science as "scientific evidence," and Senator Keith and his witnesses repeatedly stressed that the subject can and should be presented without religious content.

". . . We have no basis on the record to conclude that creation science need be anything other than a collection of scientific data supporting the theory that life abruptly appeared on earth. See n. 4, supra. Creation Science, its proponents insist, no more must explain whence life came than evolution must explain whence came the inanimate materials from which it says life evolved.

The dissent also stressed that evolution is not unquestionable fact (p. 25):

Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie.

Finally, the dissenting opinion of Justice Scalia and the Chief Justice excoriated the majority of its "Scopes-in-reverse" "repressive" position (p. 25):

In this case, however, it seems to me the Court's position is the repressive one. The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. . . . Yet that illiberal judgment, the Scopes-in-reverse is ultimately the basis on which the Court's facile rejection of the Louisiana Legislature's purpose must rest.

The majority opinion leaves open at least two alternatives to indoctrination in evolution and censorship of scientific alternatives: (1) the right of teachers to teach "a variety of scientific theories" and to bring Scopes-type lawsuits if punished or prohibited, and (2) the right of schools, school districts, and perhaps legislatures to encourage or require teaching of "all scientific theories . . . about origins."

The Creation Science Legal Defense Fund has announced its determination to continue defending creationist victims and unbiased science instruction. (ICR Impact #170, August 1987)

ICR was quick to echo:

The ICR staff concurs with Attorney Bird that the Majority Opinion of the Court does not preclude teaching the scientific evidences for creation, as long as this is done with the "secular purpose" of good science and good education, rather than the "religious purpose" of supporting belief in a supernatural God. Teachers have always had this right, and did not need the Louisiana law to give it to them. We can be thankful that the Court did not go so far as to ban this, as well. We can also hope that some future test case will ameliorate the present opinion and not make it still worse, but the history of previous attempts to promote creation by legislation is not encouraging.

This development was not altogether unexpected. Most judges (as well as other lawyers) have long been taught in their law schools that evolution is a fact--including the idea that even the law and the constitution must evolve along with life and society--so all but the most conservative judges will tend to decide cases involving broad issues largely on the basis of sociological goals and political expediency. For this reason, ICR has consistently maintained that creationism can best be promoted through education and persuasion rather than through legislation or litigation.

In the meantime, school boards and teachers should be strongly encouraged at least to stress the scientific evidences and arguments against evolution in their classes (not just arguments against some proposed evolutionary mechanism, but against evolution per se), even if they don't wish to recognize these as evidences and arguments for creation (not necessarily as arguments for a particular date of creation, but for creation per se). (ICR Impact #170, August 1987)

The dissenting opinion in the Aguillard case, written by Antonin Scalia, gave particular hope to the anti-evolutionists -- and painted the path they would follow in the future. Legal writer Doung Linder writes, of the Aguillard hearing:

"During oral argument, Justice Scalia peppered attorneys with questions about whether this or that form of creation would necessarily be religious. He asked the state’s attorney, Wendell Bird, whether creation-science might allow for creation by “a giant slug” as well as a more personal God. Bird agreed that creation-science made no assumptions about the nature of the creator—only that there was one. When it came time for argument by Topkis, Scalia returned to the issue of whether creation by a creator was an inherently religious concept. The justice asked Topkis whether he “considered Aristotelianism a religion?” Topkis replied, “Of course not.” “Well, then,” Scalia asserted, “you could believe in a first cause, an unmoved mover, that may be impersonal, and has no obligation of obedience or veneration from men and, in fact, doesn’t care about what’s happening to mankind—and believe in creation.” “Not when creation means by a divine creator,” Topkis objected. “That’s the test.” He added that there could be no doubt, given the history of the statute, that Louisiana meant “divine” creation, not creation by an unmoved mover.

Justice Scalia has a reputation for throwing attorneys off-balance with elaborate hypothetical questions. True to form, he posed for Topkis a long hypothetical question—for the purpose, presumably, of demonstrating that a law could have a religious motivation and yet be constitutional. “Let’s assume,” he began, “that there is an ancient history professor…who has been teaching that the Roman Empire did not extend to the southern shore of the Mediterranean in the first century A.D. And let’s assume a group of Protestants who are concerned about that fact, inasmuch as it makes it seem that the Biblical story of the crucifixion has thing a bit wrong.” Concluding his story, Scalia tells Topkis that the upset students march “to the principal of the school, and say, ‘This history teacher is teaching what is just falsehood.’ And the principal says, ‘Gee, you’re right.’ And he goes and directs the teacher to teach that Rome was on the southern shore of the Mediterranean in the first century A.D.” The principal’s order was “clearly” religiously motivated, Scalia asserted, but wouldn’t it also, he asked, be constitutional? Topkis replied that he thought the hypothetical was distinguishable from his case. In the history class example, he said, the principal’s motivation would not be religious, rather “he would be acting out of the scholar’s interest in truth”—a worthy and a constitutional motivation. Louisiana’s motivation, however, “by every index we can possibly have” is nothing but religious, Topkis argued.

Topkis contended that his opponent was trying to “play Tweedledum” by giving “creation-science” a non-religious meaning that it clearly didn’t have. “He wants words to mean what he says they mean,” Topkis complained. “And that didn’t fool Alice, and I doubt very much it will fool this court.” Chief Justice Rehnquist interrupted. “Don’t overestimate us,” he warned. Spectators in the great chamber broke into laughter. "(http://www.law.umkc.edu/faculty/projects/ftrials/scopes/brennanscalia.html)

In his dissent, Scalia, who had long been a critic of the "purpose" prong of the Lemon test, argued that the State Legislature had declared that the purpose of its law was secular and not religious, and that should have been good enough for the Court to accept, and thus allow a trial:

"The Louisiana legislators who passed the "Balanced Treatment for Creation-Science and Evolution-Science Act" (Balanced Treatment Act), each of whom had sworn to support the Constitution were well aware of the potential Establishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, essentially on the basis of "its visceral knowledge regarding what must have motivated the legislators," that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent."

"Had requirements of the Balanced Treatment Act that are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the manner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gallop, by impugning the motives of its supporters."

"The Louisiana Supreme Court has never been given an opportunity to interpret the Balanced Treatment Act, State officials have never attempted to implement it, and it has never been the subject of a full evidentiary hearing. We can only guess at its meaning. We know that it forbids instruction in either "creation-science" or "evolution-science" without instruction in the other, but the parties are sharply divided over what creation science consists of. Appellants insist that it is a collection of educationally valuable scientific data that has been censored from classrooms by an embarrassed scientific establishment. Appellees insist it is not science at all but thinly veiled religious doctrine. Both interpretations of the intended meaning of that phrase find considerable support in the legislative history."

Like the Court of Appeals, the Court finds it necessary to consider only the motives of the legislators who supported the Balanced Treatment Act. After examining the statute, its legislative history, and its historical and social context, the Court holds that the Louisiana Legislature acted without "a secular legislative purpose" and that the Act therefore fails the "purpose" prong of the three-part test set forth in Lemon v. Kurtzman, . As I explain below, I doubt whether that "purpose" requirement of Lemon is a proper interpretation of the Constitution; but even if it were, I could not agree with the Court's assessment that the requirement was not satisfied here. (Dissenting Opinion, US Supreme Court, Edwards v Aguillard, 1987)

"The Act's reference to 'creation'," Scalia writes, "is not convincing evidence of religious purpose. The Act defines creation science as "scientific evidence", and Senator Keith and his witnesses repeatedly stressed that the subject can and should be presented without religious content. We have no basis on the record to conclude that creation science need be anything other than a collection of scientific data supporting the theory that life abruptly appeared on earth. Creation science, its proponents insist, no more must explain whence life came than evolution must explain whence came the inanimate materials from which it says life evolved. But even if that were not so, to posit a past creator is not to posit the eternal and personal God who is the object of religious veneration. Indeed, it is not even to posit the "unmoved mover" hypothesized by Aristotle and other notably nonfundamentalist philosophers. Senator Keith suggested this when he referred to "a creator however you define a creator. . . . The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that "creation science" is a body of scientific knowledge rather than revealed belief." (Scalia, Dissenting Opinion, Edwards v Aguillard, 1987)

Within a year, the movement would begin which would directly attempt to get around the Aguillard ruling, using Scalia's own argument concerning "scientific data supporting the theory that life abruptly appeared on earth . . . whatever scientific evidence there may be against evolution . . . however you define a creator". It was called "Intelligent Design".

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