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.
The short answer to your question is no, of course creationism is not extinct in public education. Louisiana's 2008 ironically named Science Education Act promotes the teaching of creationism in science class under the guise of encouraging critical thinking.
ReplyDeletehttp://www.legis.state.la.us/lss/lss.asp?doc=631000
A teenager, Zach Kopplin, drives the charge to repeal the act, and despite so far not achieving that goal, he has made headway in gathering support, including from Nobel laureates in science.
http://io9.com/5976112/how-19+year+old-activist-zack-kopplin-is-making-life-hell-for-louisianas-creationists