Thomas H. Wilson
Some years ago, I spoke at the University of Virginia. In passing, I made reference to the fact that until 1967 blacks and whites could not marry in Virginia and 15 other states under penalty of criminal prosecution. That year, the United States Supreme Court, in Loving v. Virginia, struck down the miscegenation laws in all those states, citing the Fourteenth Amendment to the United States Constitution, holding that “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the [Equal Protection Clause].”
After my talk, a young black man from the audience told me that he was unaware of this history, and that he was married to a white woman. He was clearly moved to know that not so long ago it would have been illegal for him to wed his wife in Virginia. Decisions of the US Supreme Court impact individuals.
Jurisprudence, the study of the history and processes of law, is a humanities discipline. We all have a stake in jurisprudence. For example, few today would argue with the holding of the United States Supreme Court in Brown v. Board of Education (1954), which found segregation in public schools unconstitutional.
In 1965, Griswold v. Connecticut overturned laws that made it illegal to distribute contraceptives to married couples, and established the right to privacy. Building on Griswold, in 1974, the court in Roe v. Wade overturned laws that made abortion illegal. This holding has not achieved universal acceptance. The recent Citizens United case (2010), which found donations from corporations and unions for electioneering protected under the Free Speech Clause of the First Amendment, unleashed consequences that are currently unfolding. Jurisprudence matters.
It is unlikely that John Scopes, when he set out upon his teaching career in rural Tennessee, ever thought that his name would be associated forever with one of the fiercest and most enduring controversies in American education. Following a clash of legal titans, William Jennings Bryan for the prosecution and Clarence Darrow for the defense, Scopes was convicted of teaching evolution contrary to statute at a sensational trial in 1925. Legally, the Scopes “Monkey Trial” is insignificant, but its issues thunder across the decades and continue to engage persons at the deepest emotional levels.
A series of decisions in federal courts over several decades have upheld the right to teach evolution in the public schools unfettered by religious dogma. Broadly, the decisions have upheld the integrity of the teaching of science in public education. In 1928, Arkansas passed a statute similar to Tennessee’s, which was not challenged in court until the mid-1960s. The United States Supreme Court, in Epperson v. Arkansas, (1968), held that the statute violated the Establishment Clause of the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion….”). The court found that the proscription against state action that aids or opposes any religion is absolute, and “forbids alike the preference of a religious doctrine or the prohibition of a theory which is deemed antagonistic to a particular dogma.” The Arkansas statute “cannot be defended as an act of religious neutrality.” It was no longer illegal to teach evolution in the public schools of the United States.
Soon after the Epperson decision, creationists began to devise strategies to diffuse the effects of the holding and to contest the scientific basis of evolution. Fundamentalists advocated balanced treatment or equal emphasis acts that were designed to require the teaching of “scientific creationism” wherever evolution was taught. In 1981, Arkansas passed a law requiring balanced treatment for “creation-science” and “evolution-science.” A federal district judge in McLean v. Arkansas Board of Education (1982) ruled that the act failed the purpose, effect, and entanglement prongs of the test that he applied. The judge found that a religious, not neutral, purpose underlay the act, that the effect of creation science is the advancement of religion, and that to uphold the act would excessively entangle the state in religious matters.
Louisiana passed a similar law in 1981, the stated purpose of which was academic freedom. It too required equal treatment of “evolution-science” and “creation-science.” The United States Court of Appeals for the Fifth Circuit found that the stated purpose of academic freedom was insufficient to avoid conflict with the First Amendment: “Irrespective of whether it is fully supported by scientific evidence, the theory of creation is a religious belief.” The court stated that “the principle of academic freedom abjures state interference with curriculum or theory as antithetical to the search for truth. The Balanced Treatment Act is contrary to the very concept it avows.”
On appeal to the United States Supreme Court, in Edwards v. Aguillard (1987) the court held that the Balanced Treatment Act lacked a clear secular purpose and therefore violated the Establishment Clause of the First Amendment. The court compared the actual purpose of the act with its stated purpose, and concluded that “The purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint.” Justice Scalia, joined by Chief Justice Rehnquist, wrote a blistering dissent: “what is crucial is not [the legislators’] wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be.”
The holdings in these cases rely mostly upon the First Amendment’s prohibition “respecting the establishment of religion.” Another line of cases relies on the Free Exercise Clause of the First Amendment (“Congress shall make no law…prohibiting the free exercise thereof” [religion]). Generally, the cases turn on whether state action is unduly burdensome on the plaintiffs, and whether exemptions from the burden are available. When, in wartime 1943, the Supreme Court held unconstitutional a state statute requiring all students to say the pledge of allegiance, the Court wrote that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” As much as some might like, students cannot be forced to say the pledge of allegiance. Similar exemptions or alternatives are available where evolution is taught.
In Crowley v. Smithsonian Institution (1980) the court found that merely visiting exhibitions on evolution would not actionably impair plaintiffs simply because they might be “confronted with exhibits which are distasteful to their religion.” Another decision, Mozert v. Hawkins County Board of Education (1987), turned on whether requiring fundamentalist schoolchildren to read materials in science textbooks contrary to their sincerely held religious beliefs violated their free exercise rights. The U.S. Court of Appeals for the Sixth Circuit found no unconstitutional burden because the “critical element of compulsion to affirm or deny a religious belief or to engage in or refrain from engaging in a practice forbidden or required in the exercise of a plaintiff’s religion” was absent in the case.
The most recent decision in this line of jurisprudence again involves the Establishment Clause of the First Amendment. In 2004, the school board in the Dover Area School District in Pennsylvania initiated curriculum changes that offered Intelligent Design (ID) as an alternative to evolution in the science curriculum, and placed in classrooms a publication that supported ID as an alternative to the standard biology textbook. After a lengthy trial in federal district court, in Kitzmiller v. Dover School District (2005), the judge applied a test developed by Justice O’Connor. “The endorsement test recognizes that when government transgresses the limits of neutrality and acts in ways that show religious favoritism or sponsorship, it violates the Establishment Clause.” Based upon extensive testimony, the judge found that Intelligent Design is “a religious view, a mere re-labeling of creationism” and therefore violated the First Amendment. He further found that ID is not science, but is based upon theology, and that the actions of the school board also violated the purpose and effect prongs of another constitutional test: “The effect of Defendants’ actions in adopting the curriculum change was to impose a religious view of biological origins into the biology course, in violation of the Establishment Clause.”
Is creationism extinct in public education? It seems imprudent to declare so, even though every federal court, at district, appellate or supreme court level, has found unconstitutional efforts to ban the teaching of evolution in public schools or to compel schools to teach creationism, creation-science, or intelligent design in parallel with evolution. The courts are clear that the one is theology, the other science. The various governmental machinations variously struck down on Establishment Clause or Free Exercise Clause analysis under the First Amendment exhibits a sort of whack-a-mole aspect to the creationists’ reinventions. Even today there is a bill in the Arizona legislature to authorize a class in bible studies that might raise purpose, effect and endorsement test hurdles in a constitutional challenge. Whatever the future of this particular legislation, too often these days, it seems, governmental bodies are willing to risk enormous costs in time and treasure on ill-founded schemes that jurisprudence suggests have little chance of passing constitutional muster. We all have a stake in the jurisprudence of our courts.
Thomas H. Wilson is Chair of the Arizona Humanities Council and Director of the Arizona Museum of Natural History.