The evolution vs. creationism debate has engendered controversy for more than
a century, causing an uproar in science, religion and constitutional law.
More than 80 years ago legendary lawyers Clarence Darrow and William Jennings
Bryan matched wits in a Dayton, Tenn., courtroom over evolution and creationism.
Darrow represented young science teacher John Scopes and the evolution point of
view, while Bryan represented the creationist point of view for the
prosecution.
The controversy began when Charles Darwin postulated the scientific basis for
evolution in his 1859 book, The Origin of Species. The theory of
evolution posits that living species, including man, descended from lower orders
through processes of natural selection and mutation. The idea that man evolved
from animals such as apes offends many creationists, who believe the biblical
version of the origin of man in Genesis.
The debate continues today with a campaign supporting the idea of
“intelligent design,” which holds that the world is so complex that evolution
cannot explain the development of species, and that an intelligent designer must
have played a role in the creation of man and the world.
Aside from larger questions of science and religion, the
evolution-creationism debate also presents intriguing First Amendment issues in
public schools. The question looms whether it violates the establishment clause
when state laws or local school board policies mandate that intelligent design
be taught in science classes alongside evolution.
Even President George W. Bush entered the
fray, commenting in 2005: “Both sides ought to be properly taught so people
can understand what the debate is about … . I think that part of education is to
expose people to different schools of thought.”
Justice Oliver Wendell Holmes once wrote that “a page of history is worth a
volume of logic.” This comment applies in the evolution-creationism issue,
beginning with the legendary Scopes trial.
Scopes trial
The celebrated “Scopes monkey trial” took place in
Dayton, Tenn., in 1925. The case involved Rhea County science teacher John
Scopes, prosecuted for violating a state law forbidding the teaching of
evolution in public schools. A jury convicted Scopes of violating the law but
refused to fine him. The trial judge ordered Scopes to pay a $100 fine. In its
1927 decision Scopes
v. State, the Tennessee Supreme Court reversed the conviction, finding
that only the jury could fine the defendant. The court then noted that Scopes
had left the state and that no further prosecution should take place: “We see
nothing to be gained by prolonging the life of this bizarre case. On the
contrary, we think the peace and dignity of the State, which all criminal
prosecutions are brought to redress, will be better conserved by the entry of a
nolle prosequi herein.”
The Scopes trial ended without a court declaration that the Tennessee law
prohibiting the teaching of evolution was unconstitutional under the
establishment clause of the First Amendment or a similar provision in the
Tennessee Constitution.
Epperson v. Arkansas
The U.S. Supreme Court did not directly
address the constitutionality of a Scopes-like law until its 1968 decision Epperson
v. Arkansas. The case involved an Arkansas law that prohibited the
teaching of evolution in public schools.
The law provided: “It shall be unlawful for any teacher or other instructor
in any University, College, Normal, Public School, or other institution of the
State … to teach the theory or doctrine that mankind ascended or descended from
a lower order of animals.” A related law provided that any teacher who taught
evolution could be charged with a misdemeanor and subject to a $500 fine.
Susan Epperson, a young biology teacher, challenged the statute on First
Amendment grounds. The Court determined that the law violated the establishment
clause, finding that “fundamentalist sectarian conviction was and is the law’s
reason for existence.”
“The State’s undoubted right to prescribe the curriculum for its public
schools does not carry with it the right to prohibit, on pain of criminal
penalty, the teaching of a scientific theory or doctrine where that prohibition
is based upon reasons that violate the First Amendment,” Justice Abe Fortas
wrote for the Court.
“Arkansas’ law cannot be defended as an act of religious neutrality,” he
added. “Arkansas did not seek to excise from the curricula or its schools and
universities all discussion of the origin of man. The law’s effort was confined
to an attempt to blot out a particular theory because of its supposed conflict
with the Biblical account, literally read.”
(See “Science
teacher relates role in landmark evolution case” for an interview with
litigant Susan Epperson.)
Edwards v. Aguillard
The evolution controversy continued
after the Epperson decision. In the 1970s and 1980s, the controversy over
“scientific creationism” took center stage when Arkansas and Louisiana passed
laws mandating the teaching of creationism alongside evolution. A federal
district court invalidated the Arkansas law in the 1982 decision McLean v.
Arkansas Board of Education and the U.S. Supreme Court invalidated the
Louisiana law that required “balanced treatment” for the teaching of evolution
and “creation science” in Edwards
v. Aguillard (1987).
Aguillard dealt with a 1982 Louisiana law called the Balanced
Treatment for Creation-Science and Evolution-Science in Public School
Instruction Act. The law required that if teachers instruct students about the
theory of evolution, they must also instruct the students about creation
theory.
The state argued that the law served the valid, secular purpose of promoting
academic freedom. The law’s challengers countered that the purpose of the law
was to advance a particular religious viewpoint.
The Court ruled 7-2 against the law, finding that the “preeminent purpose of
the Louisiana Legislature was clearly to advance the religious viewpoint that a
supernatural being created humankind.” The majority added that “the purpose of
the Creationism Act was to restructure the science curriculum to conform with a
particular religious viewpoint.”
The Supreme Court did state that “teaching a variety of scientific theories
about the origins of humankind might be validly done with the clear secular
intent of enhancing the effectiveness of science instruction.” However,
creationism is not considered a scientific theory. Some argue, however, that
intelligent design is closer to a scientific theory.
‘Intelligent design’
First Amendment Center senior scholar Charles
Haynes wrote in a 2004
column: “As soon as one challenge to the teaching of evolution is beaten in
the courts, another emerges to take its place. The current contender is
‘intelligent design.’”
Baylor University professor and legal commentator Francis Beckwith wrote in a
2003 article in the Harvard Journal of Law and Public Policy: “The
Intelligent Design (ID) movement has presented an array of sophisticated and
empirically grounded arguments supporting the notion that intelligent agency may
do a better job of accounting for certain aspects of the natural world, or the
natural world as a whole, than non-agent explanations, such as natural selection
or scientific laws working on the unguided interaction of matter.”
Beckwith argues that intelligent design does not suffer from the same
constitutional problems as creationism when it comes to teaching public school
science classes: “Unlike the creationism rejected … by the Supreme Court in
Edwards, ID cannot be repudiated as a political endeavor by Christian
fundamentalists to indoctrinate schoolchildren to accept biblical literalism
instead of science.”
Others disagree, viewing intelligent design as creationism in disguise. “ID
is intended as a replacement for traditional forms of creationism,” said Glenn
Branch, deputy director of the National Center for Science Education, in an
interview with First Amendment Center Online. “It was concocted in the hope that
it would survive constitutional scrutiny and that’s why, for example, proponents
of ID will not identify the designer as God although it is clear to everybody
that it is God.”
“Intelligent design should not be taught in science classes for at least two
reasons,” said Branch. “First, it is not science. Intelligent-design proponents
have not contributed any peer-reviewed scientific research literature, which is
the gold standard for science. They are making their case not to the scientific
community but to the public. The other reason ID should not be taught in science
classes is that it will violate the establishment clause of the First
Amendment.”
Jeremy Leaming, a spokesman for Americans United for Separation of Church and
State and former First Amendment Center staff writer, agreed in an interview,
calling intelligent design “a reincarnation of creation science.” He contends
forcing the inclusion of intelligent design in science classes would violate the
establishment clause because it amounts to “advancing a specific religion’s
belief over other religion’s beliefs and secular beliefs on the origins of
life.”
Important case in Pennsylvania
The leading case on intelligent
design arose in the small town of Dover, Pa. In October 2004, the Dover Area
School Board passed 6-3 the following resolution:
“Students will be made aware of gaps/problems in Darwin’s theory and of other
theories of evolution including, but not limited to, intelligent design. Note:
Origins of Life is not taught.” The Dover Area School District responded in
November 2004 by announcing that teachers would be required to read a statement
in biology classes in January 2005. The statement said in part:
“Because Darwin’s Theory is a theory, it is still being tested as
new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist
for which there is no evidence. A theory is defined as a well-tested explanation
that unifies a broad range of observations.
"Intelligent design is an explanation of the origin of life that differs from
Darwin’s view. The reference book, Of Pandas and People, is available for
students to see if they would like to explore this view in an effort to gain an
understanding of what intelligent design actually involves.
“With respect to any theory, students are encouraged to keep an open mind.
…”
A group of parents — with help from the American Civil Liberties Union and
Americans United for Separation of Church and State — filed a lawsuit in
December 2004. The complaint
in Kitzmiller v. Dover Area School District alleges that the school
district policy violates the establishment clause in several ways: “The policy
has no secular purpose. Singling out evolution from all other scientific topics
in the curriculum for special, negative treatment detracts from the science
education of students in the Dover Area School District, and misleads them about
the established position of the scientific theory of biological evolution in the
scientific community.”
However, the school district, represented by the Thomas More Law Center,
contended that it was acting constitutionally. “Not only is Dover following
congressional intent in adopting their policy, but their actions are
constitutionally permissible,” said Richard Thompson, president and chief
counsel of the Thomas More Law Center, in a news release.
The case proceeded to trial from September-November 2005. In December, U.S.
District Court Judge John E. Jones III issued a 139-page
opinion.
Jones ruled that the intelligent-design policy violated the establishment
clause. “The overwhelming evidence at trial established that ID is a religious
view, a mere re-labeling of creationism, and not a scientific theory,” he
wrote.
Jones went even further in his ruling, finding that ID was not science: “It
is our view that a reasonable, objective observer would, after reviewing both
the voluminous record in this case, and our narrative, reach the inescapable
conclusion that ID is an interesting theological argument, but that it is not
science.”
He concluded his opinion with sharp words: “The students, parents, and
teachers of the Dover Area School District deserved better than to be dragged
into this legal maelstrom, with its resulting utter waste of monetary and
personal resources.”
The decision was not appealed, as a new Dover School board unanimously
rescinded the intelligent-design policy in early January 2006.
Even though the Pennsylvania case ended, another ID controversy surfaced in
California.
The Americans United for Separation of Church and State sued a high school
district in California for its January 2006 creation of a course called
“Philosophy of Intelligent Design” at Frazier Mountain High School. The lawsuit
in Hurst v.
Newman alleged that El Tejon Unified school district officials violated
the establishment clause by allowing the course.
Later in the month, school officials relented and agreed to drop the course
to settle the lawsuit.
Disclaimers
In March 2002, the Cobb County (Ga.) Board of Education
ordered that a sticker be placed in science textbooks that read:
This textbook contains material on evolution. Evolution is a theory,
not a fact, regarding the origin of living things. This material should be
approached with an open mind, studied carefully, and critically
considered.
Several parents challenged the sticker on establishment clause grounds in
federal court. In January 2005, a federal district court in Georgia ruled in
Selman v. Cobb County
School District that the sticker did violate the establishment clause.
The court wrote that the sticker advanced two secular purposes: fostering
critical thinking by students and reducing “offense to students and parents
whose beliefs may conflict with the teaching of evolution.” However, the court
found that the sticker violated the “effects” prong of the Lemon test
(established by the Supreme Court in 1971 in Lemon
v. Kurtzman) — which asks whether the regulation has a primary effect of
advancing or inhibiting religion. The district court wrote that the sticker “has
the effect of implicitly bolstering alternative religious theories of origin by
suggesting that evolution is a problematic theory even in the field of
science.”
“In the wake of Edwards v. Aguillard, proponents of creationism have
tried two tactics,” says Branch. “First, they have repackaged creationism to
something more secular-sounding. Secondly, they have abandoned the advancement
of alternatives to evolution and have concentrated on slinging mud at evolution.
These include disclaimers describing evolution as just a theory or invidiously
singling it out as problematic.”
Others believe that disclaimers — verbal pronouncements or stickers placed in
textbooks — can be permissible accommodations of religion. For example,
commentator F. Arthur Jones II wrote in a 2003 Loyola Law Review article
in favor of a similar evolution disclaimer in Louisiana invalidated by the 5th
U.S. Circuit Court of Appeals in Freiler
v. Tangipahoa Parish Board of Education.
“This disclaimer, in effect, accommodates creationists by reducing the
students’ possible impressions that the state desires them to accept every
theological implication that evolution might present. Because it endeavors to do
so from a secular perspective, it accommodates this real concern for many
religious Louisianans without endorsing any religious beliefs. Consequently, the
disclaimer may be viewed as a permissible accommodation of religion.”
The landscape with respect to disclaimers remains muddled but could become
clearer once the Cobb County case is resolved. It is currently before the 11th
Circuit.
Recent legislative activity
The evolution/intelligent design
controversy has become common fodder for many legislators, as bills have been
introduced in about 20 states. The bills vary in language and, arguably, in
intent but many would require the teaching of intelligent design alongside
evolution. For example, New York Assembly Bill No. 8036, introduced on May 3,
2005, would provide: “All pupils in grades kindergarten through twelve in all
public schools in the state shall receive instruction in both theories of
intelligent design and evolution.”
A measure (S. 909) introduced in the South Carolina Senate in June 2005
reads: “[T]he State Board of Education shall implement policies and a curriculum
that accomplish the General Assembly’s desire to provide a quality science
education that shall prepare students to distinguish the data and testable
theories of science from religious or philosophical claims that are made in the
name of science. Where such topics are taught that may generate controversy,
such as biological evolution, the curriculum should help students to understand
the full range of scientific views that exist, why such topics may generate
controversy, and how scientific discoveries can profoundly affect society.”
“The ID-type bills are generally introduced by legislators who want to
placate fundamentalist constitutiencies,” Branch says. “They tend to all die in
committee.”
These measures have indeed tended to die in committee so far, but the pace of
their introduction assures that the issue is far from resolved.
Some of these measures appear to take the rallying cry of “teach the
controversy.” The thinking, which is reflected in the recent comments on the
subject by President Bush, is that students should at least learn that there is
a conflict between evolutionists and those who favor intelligent design.
In a 2005
column, the First Amendment Center's Charles Haynes wrote, “Public schools
aren’t a proving ground for untested theories. And students shouldn’t become
guinea pigs (or monkeys, for that matter) in the culture-war debate over
evolution. That’s bad for science education — and for the nation.”
The debate rages on at the local school board level across the country. For
example, the Kansas Board of Education has been
embroiled in the evolution-intelligent design controversy for years. In
November 2005, the Kansas Board of Education adopted new science standards that
many say will pave the way for ID to be introduced in the schools.
Conclusion
The evolution-creationism debate has taken many forms
and has morphed over the years since Bryan and Darrow locked horns in that
Dayton, Tenn., courtroom. Statutes banning evolution have been replaced by
efforts to give “balanced treatment” to evolution and creationism. That has been
replaced by the intelligent-design movement.
What has not changed, however, is the divisiveness of the issue and the
differing opinions on whether many of these proposals violate the establishment
clause of the First Amendment.
Updated January 2006
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