H. Wayne House, "Darwinism and the Law: Can Non-Naturalistic Scientific Theories Survive Constitutional Challenge?" (2001)

Darwinism and the Law:

Can Non-Naturalistic Scientific Theories Survive Constitutional Challenge?

H. Wayne House*

The entrance of Charles Darwin’s[1] Origin of Species[2] changed the world. This is not because belief in evolution was a new and exciting theory unconsidered before this time, for indeed a variation of the view existed in many ancient cultures.[3] In addition, several scientists already accepted a theory of evolution before the publication of Darwin’s book,[4] though certainly not the majority in Darwin’s time, since many of his contemporaries within the scientific community had serious concerns about his theories.[5] The benefit of Origin of Species, many of its various postulates having long been discarded by contemporary scientists,[6] is that it provided an alternative mechanism by which to explain the beginning and development of the cosmos and life.[7] The orthodox religious view of special creation (creatio ex nihilo)[8] no longer would be required to explain how life began and the battle between a theistic (supernaturalistic) and a non-theistic (naturalistic) explanation for the cosmos began.[9]

I. Background to the Conflict between Creation

and Evolution in American Law

A. The Scopes Trial

1. Backdrop to the Trial

The Scopes trial[10] was probably the beginning of public awareness of evolution in the United States. Scientists of the early twentieth century had already largely accepted evolution,[11] as had many Christian church leaders[12] and theologians.[13] The Scopes trial came in the midst of the fundamentalist-modernist controversy[14] which threatened to engulf all of religious America and was seen as the heart and soul of the church.[15]

The Scopes trial was initiated[16] by the American Civil Liberties Union[17] [hereinafter ACLU] in a newspaper ad[18] to test a Tennessee law[19] which forbade the teaching of the idea that human beings evolved from lower forms of life, in the state’s public schools,[20] because the idea contradicted the Biblical account of creation. The ACLU hired the famous defense attorney Clarence Darrow[21] to defend teacher John Scopes.[22] Scopes, a substitute science teacher,[23] agreed to confess to having violated the Tennessee anti-evolution law, teaching evolution from the popular biology book A Civic Biology,[24] although post-trial evidence indicated that he had not done so.[25]

The expected dignity of a court trial gave way to a circus-like atmosphere,[26] probably unlike anything experienced in the United States until the famous O.J. Simpson criminal trial,[27] but considerably different from Jerome Lawrence and Robert E. Lee’s fictional Inherit the Wind,[28] which was based on the Scopes trial. Journalists throughout the United States, and from other countries, crowded into the small town of Dayton, Tennessee.[29] William Jennings Bryan,[30] an eloquent speaker and three-time nominee for presidency of the Democratic Party,[31] was no match for the manner and tactics of Clarence Darrow, who was able to get Bryan on the witness stand as an expert in the Bible.[32]

Extravagant, exaggerated, and excessive claims were made by both sides in the trial. One account described the extravagant conditions this way:

Members of the jury were caught up more in the drama of the event than in the proceedings themselves. Former colleagues and acquaintances were now adversaries; both Darrow and Malone had assisted the political ambitions of Bryan. Scopes had been in the graduating class at Salem High School when Bryan delivered the commencement address. Scientific experts came from all over to testify, but none of their statements was allowed as evidence. Darrow was cited for contempt and Bryan took the witness stand. Scopes was never called to testify. Moreover, Scopes was a math teacher who only periodically taught biology as a substitute. He later admitted, “To tell the truth, I wasn’t sure I had taught evolution.” No matter. If Scopes was found guilty . . . Bryan would pay his fine, contending that the law should not have had a penalty.[33]

2. The Testimony of William Jennings Bryan

The interrogation of Byran by Darrow was highly unusual,[34] with Darrow attempting to demonstrate that the arguments upheld by Byran in the case were foolish ideas “that no intelligent Christian on earth believes.”[35] Bryan testified that the reason he would take the stand was not for strictly legal purposes but his desire to have a Christian testimony before the world:

Mr. Bryan—The reason I am answering is not for the benefit of the superior court. It is to keep these gentlemen from saying I was afraid to meet them and let them question me, and I want the Christian world to know that any atheist, agnostic, unbeliever, can question me any time as to my belief in God, and I will answer him.[36]

The questioning took several tacks but the underlying approach was to call into question the reasonableness of the literal approach to Scripture that Bryan supported, by seeking to get Bryan to admit that the miracles that he accepts from the Bible are nonsensical:

Q—But when you read that Jonah swallowed the whale—or that the whale swallowed Jonah—excuse me please—how do you literally interpret that?

A—When I read that a big fish swallowed Jonah—it does not say whale.

Q—Doesn’t it? Are you sure?

A—That is my recollection of it. A big fish, and I believe it, and I believe in a God who can make a whale and can make a man and make both what He pleases.

. . . .

Q—Now, you say, the big fish swallowed Jonah, and he there remained how long—three days—and then he spewed him upon the land. You believe that the big fish was made to swallow Jonah?

A—I am not prepared to say that; the Bible merely says it was done.[37]

Some of that questioning was harsh and entertaining at the same time:

Mr. Darrow—You insult every man of science and learning in the world because he does not believe in your fool religion.

The Court—I will not stand for that.

Mr. Darrow—For what he is doing?

The Court—I am talking to both of you.

. . . .

Q—Wait until you get to me. Do you know anything about how many people there were in Egypt 3,500 years ago, or how many people there were in China 5,000 years ago?

A—No.

Q—Have you ever tried to find out?

A—No, sir. You are the first man I ever heard of who has been interested in it. (Laughter.)

Q—Mr. Bryan, am I the first man you ever heard of who has been interested in the age of human societies and primitive man?

A—You are the first man I ever heard speak of the number of people at those different periods.

Q—Where have you lived all your life?

A—Not near you. (Laughter and applause.)

Q—Nor near anybody of learning?

A—Oh, don’t assume you know it all.[38]

Other questions from Darrow to Byran reveals that Bryan was less a religious fundamentalist than has been popularly thought, since he testified that the days of creation may not have been solar days of twenty-four hours, and that the earth might be very old:

Q—Have you any idea how old the earth is?

A—No.

Q—The book you have introduced in evidence tells you, doesn’t it?

A—I don’t think it does, Mr. Darrow.

Q—Let’s see whether it does; is this the one?

A—That is the one, I think.

Q—It says B.C. 4004?

A—That is Bishop Usher’s calculation.

Q—That is printed in the Bible you introduced?

A—Yes, sir. . . .

Q—Would you say that the earth was only 4,000 years old?

A—Oh, no; I think it is much older than that.

Q—How much?

A—I couldn’t say. . . .

Q—Do you think the earth was made in six days?

A—Not six days of twenty-four hours.

Q—Doesn’t it say so?

A—No, sir. . . .

Q—. . . Does the statement, “The morning and the evening were the first day,” and “The morning and the evening were the second day,” mean anything to you?

A—I do not think it necessarily means a twenty-four-hour day.

Q—You do not?

A—No.

Q—What do you consider it to be?

A—I have not attempted to explain it. If you will take the second chapter—let me have the book. (Examining Bible.) The fourth verse of the second chapter says: “These are the generations of the heavens and of the earth, when they were created in the day that the Lord God made the earth and the heavens,” the word “day” there in the very next chapter is used to describe a period. I do not see that there is any necessity for construing the words, “the evening and the morning,” as meaning necessarily a twenty-four-hour day, “in the day when the Lord made the heaven and the earth.”

Q—Then, when the Bible said, for instance, “and God called the firmament heaven. And the evening and the morning were the second day,” that does not necessarily mean twenty-four hours?

A—I do not think it necessarily does.

Q—Do you think it does or does not?

A—I know a great many think so.

Q—What do you think?

A—I do not think it does.

Q—You think those were not literal days?

A—I do not think they were twenty-four-hour days.

Q—What do you think about it?

A—That is my opinion—I do not know that my opinion is better on that subject than those who think it does.

Q—You do not think that?

A—No. But I think it would be just as easy for the kind of God we believe in to make the earth in six days as in six years or in 6,000,000 years or in 600,000,000 years. I do not think it important whether we believe one or the other.

Q—Do you think those were literal days?

A—My impression is they were periods, but I would not attempt to argue as against anybody who wanted to believe in literal days.

. . . .

Q—The creation might have been going on for a very long time?

A—It might have continued for millions of years.[39]

What is especially interesting about Bryan’s testimony is that he does not fall into the category of recent age creationists as is so usually suspected of those who seek to advocate a creationist position.[40]

3. Darrow to the Defense

As entertaining, and at times very noncommittal, as Mr. Bryan’s testimony was, the testimony for the defense also was problematic. None of their scientific experts gave oral testimony at trial,[41] and some of the testimony provided was inaccurate scientific information.[42]

In reality, Darrow wanted to lose this case—admitting to the court that the charges against his client were all true[43] — so that he might appeal to higher courts.[44] He knew that the ultimate decision would have considerable impact on the future of science and religion in the United States.

B. Renewed Interest in Teaching Evolution

1. Race to Space

It was more than thirty years before the matter of evolution became of paramount national importance again. Generally, the battle regarding the teaching of evolution in public schools, except for occasional skirmishes,[45] was calm in the 1930s and 1940s and the scientific establishment was almost lethargic in pushing the evolutionary view. But things changed in the 1950s due to two major occurrences. One was the advancement of scientific interest in America caused by the Soviet Union’s launch of Sputnik in 1957,[46] suggesting a Russian scientific superiority over the American scientific community. This motivated Americans to support reforming the science curriculum in public schools.[47]

2. 100^th Anniversary of Darwin’s Origin of the Species

The second event that renewed interest in evolution was the 100^th anniversary, in 1959, of the publication of Darwin’s Origin of Species. This occasion awakened the scientific establishment,[48] engendering a greater push to present evolution in the classrooms of America. This was particularly so with the Biological Science Curriculum Study, which had as its basis the theory of evolution,[49] as well as the National Association of Biology Teachers,[50] which had been in the forefront of promoting evolution.

C. Creationist Responses to Darwinism

Evolutionists were not the only group galvanized by the events of the late 1950s. Along with the renewed push from evolutionists came the formation of the creation-science movement. A few examples of creationist attempts to move the debate in the favor of creationism bear mentioning.

1. Formation of Scientific Creationist Organizations

In 1963 the Creation Research Society was established in order to give an alternate point of view to the predominant evolutionary approach espoused by the scientific establishment.[51] Since 1963, creationists,[52] though a small scientific community, have made considerable impact in the public at large with their books,[53] newsletters and magazines,[54] and debates with evolutionists.[55] Moreover, there have been several controversies over the creation-evolution issue regarding public school textbooks and classrooms:

creationist bills demanding equal time for a ‘creation model’ of origins have been submitted to legislatures in more than thirty states. State boards of education, including those in Texas and California, have been pressured to accept textbooks that include creationist materials. Local boards of education have also been targeted by creationists for grassroots action as a means of achieving their goals regardless of legislatures and state boards.

Publishers of science textbooks have also come under pressure. In order to have their books accepted as texts, a number of publishers have accommodated creationist demands in various ways. They have reduced the space given to discussion of evolution and referred to evolution as ‘only a theory.’ They have included creationist materials and placed references to evolution in a final chapter which the teacher can conveniently omit. In fact, some new biology texts have managed to avoid the word evolution altogether.[56]

Creationists’ influence in the formidable Christian community of the United States has been considerable, while they have caused no more than a ripple in the waters of academia. The majority of the American public has been in sympathy with the creationist perspective that desires a two-model approach to the issues of origins,[57] causing no small concern on the part of many of the nation’s scientists.[58]

2. The Tennessee Law of 1973

On April 30, 1973 the Tennessee legislature passed a bill which avoided the prohibition policy that it was reviewed in Scopes[59] and simply made illegal any textbook which presented the evolution of man and the world as scientific fact and did not state that evolution is a theory. Moreover, if evolution was presented in any textbook, alternate theories, including the Genesis account in the Bible, must be presented. A third requirement was that if the Bible is used a reference work in these classes, it would not be required to include the disclaimer as required in the science textbooks.[60]

Almost as soon as the bill passed the legislature law professor Frederic S. LeClercq began working with the assistance of the National Association of Biology Teachers[61] against what might be rightly considered the first balanced treatment law. After a series of legal maneuverings,[62] the case came before the Sixth Circuit, which declared the law “patently unconstitutional.”[63] For the first time in the creation-evolution controversy, a court used the three-prong test of Lemon v. Kurtzman[64] to determine whether the statute violated the Establishment Clause of the First Amendment.[65] In order to pass constitutional muster, “[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’”[66]

The court noted, that although the law does not forbid the teaching of evolution, it nonetheless preferred the Biblical version of creation over any scientific theory.[67] The court then concluded:

We believe that in several respects the statute under consideration is unconstitutional on its face, that no state court interpretation of it can save it, and that in this case, the District Court clearly erred in abstaining from rendering a determination of the unconstitutionality of the statute on its face.[68]

The court then provided its rationale. The state law required, if evolution be taught, that the Biblical account be also included and that all theories but the Biblical account must have a disclaimer. The result of the legislation would be a clear preference for the Biblical version of creation over views based on scientific reasoning and enforcement of the statute would establish religion, contrary to the first prong of the Lemon test.[69] Moreover, it would involve the State Textbook Commission in such a manner as to violate the third prong against excessive entanglement with religion.[70]

3. Introduction of the Balanced Treatment Acts

a. Model Act

In the early 1980s a number of states passed what has become known as the “Balanced Treatment Act.”[71] This came about due to a concerted effort on the part of persons within the creationist movement who desired to pass legislation that would insure that creationism would be taught alongside evolution in the public schools of those states. The uniformity of these various pieces of legislation is due to the work of Wendell R. Bird,[72] attorney for the Institute for Creation Research (hereinafter ICR), and based on the arguments he made in an article written in the Yale Law Journal.[73]

The different bills[74] presented throughout state legislatures took different forms, but include considerable verbal agreement and structure, indicating a common source. For example, the definition of scientific creationism found in these legislative bills incorporates most, if not all, of the elements contained in the Arkansas bill at issue in McLean v. Arkansas:[75]

(1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about the 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 of humans 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.[76]

The following chart demonstrates the similarities and differences among some of these legislative enactments.

b. Success of Balanced Treatment Movement

Though many states enacted balanced treatment legislation, none have survived the defeats in McLean[83] and Edwards v. Aguillard.[84] As a result, the strategy of the creationist movement has tended to move toward local school boards and an argument different from that attempted by Bird and those who supported him.[85]

II. Development of the Current Evolution and Creation Debate

A. Conflicting Views of Evolution

1. Reactions by Evolutionists to Traditional Darwinism

Often, what is called Darwinism and the general theory of evolution are mistakenly viewed as the same.[86] Since the time of Darwin, his theory has undergone many critiques from evolutionists,[87] though its naturalistic basis has remained.[88] Though most scientists adhere to many tenets of classic Darwinism, such as gradualism,[89] widespread disagreement among scientists exists:

[S]ome fundamental truths about evolution have so far eluded us all, and that uncritical acceptance of Darwinism may be counterproductive as well as expedient. Far from ignoring or ridiculing the groundswell of opposition to Darwinism that is growing, for example, in the United States, we should welcome it as an opportunity to re-examine our sacred cow more closely . . . .[90]

When the first trial regarding evolution and creation was argued, Darwinism was publicly presented as the only legitimate scientific position,[91] but classic Darwinism began to recede, due to its inadequacies of truly addressing “origins”[92] and the failure of Darwin’s prediction that current difficulties in the theory would be solved by future generations.[93] In fact, much of the scientific evidence—at times composed of fraudulent data[94] — presented by various scientists at the Scopes trial no longer would be considered accurate[95] by the current scientific community.[96]

This recession into the shadows would wait for a resurrection in the form of neo-Darwinist, anti-Darwinist, and Anti-Evolutionist schools within the scientific community who are not creationist.[97] Thus, those who advocate creation-science[98] or intelligent design[99] are not alone in their concerns over the general theory of evolution. However, one should understand, that Darwinism, in some form, is still held fervently by most scientists, even among those who also hold to theism, adding to the confusion.

2. Theistic Evolution

A considerable number of scientists[100] who espouse the Christian faith, but believe that acceptance of evolution is a sine qua non of science, advocate what is known as theistic evolution.[101] Under this perspective, the Creator created time, space, and matter, and at times intervened in the natural processes to assist the evolving of life on earth. This was especially the case in reference to humanity, but the Creator left the overwhelming majority of life changes up to the natural workings of evolution.[102]

Theologian Louis Berkhof describes the view:

This [view] postulates the existence of God back of the universe, who works in it, as a rule according to the unalterable laws of nature and by physical forces only, but in some cases by direct miraculous intervention, as, for instance, in the case of the absolute beginning, the beginning of life, and the beginning of rational and moral existence.[103]

Belief in evolution as the process which God used in creating the world is found in early editions of Darwin’s Origin of Species:

authors of the highest eminence seem to be fully satisfied with the view that each species has been independently created. To my mind it [the existence of nature] accords better with what we know of the laws impressed on matter by the Creator. . . . There is grandeur in this view of life, with its several powers, having been originally breathed by the Creator into a few forms or into one; and that, whilst this planet has gone circling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been and are being evolved.[104]

Probably the best known theologian who sought to blend his Christian faith with the general theory of evolution was French priest Pierre Tielhard de Chardin. His earlier training was in theology, becoming a member of the Society of Jesus (Jesuits) in 1899,[105] but subsequently pursued his burning interest in science, particularly geology and paleontology,[106] graduating with a doctorate in geology from the Sorbonne.[107] Famous evolutionist Theodosius Dobzhansky once said in an address to the National Association of Biology Teachers, “I believe with Teilhard de Chardin that evolution is God’s method of creation.”[108]

As satisfying as this view may be to scientists of faith, it is a paradigm not well received in the scientific community at large[109] nor to theologians of the Christian faith.[110]

The most recent Christian of note who has been portrayed as blending evolution and the Christian faith is Pope John Paul II. He has recently been brought in on the side of theistic evolution in a recent address to the Pontifical Academy of Sciences. Newspapers reported that the Pope has come down on the side of scientists against those advocating a literal reading of the Genesis account:

THE POPE AND DARWIN. Did God create mankind in his image, as the Bible says, or did humans evolve from animals, as Darwin theorized nearly 150 years ago? According to Pope John Paul II, evolution may be the better explanation. Weighing in on a debate that has divided Christians for decades, the pope declared that evolution is “more than just a theory” and is fully compatible with the Christian faith. But in a letter to the Pontifical Academy of Sciences, he also reaffirmed church teachings that while the human body may have evolved gradually, the soul “is immediately created by God” in each person.[111]

The actual examination of the Pontiff’s comments seem to provide less optimism for the Darwinist perspective than as reported by the media. The pertinent text of the address reads:

Taking into account the state of scientific research at the time as well as of the requirements of theology, the encyclical Humani Generis considered the doctrine of “evolutionism” a serious hypothesis, worthy of investigation and in-depth study equal to that of the opposing hypothesis. Pius XII added two methodological conditions: that this opinion should not be adopted as though it were a certain, proven doctrine and as though one could totally prescind from revelation with regard to the questions it raises. He also spelled out the condition on which this opinion would be compatible with the Christian faith, a point to which I will return. Today, almost half a century after the publication of the encyclical, new knowledge has led to the recognition of the theory of evolution as more than a hypothesis. [Aujourdhui, près dun demi-siècle après la parution de l’encyclique, de nouvelles connaissances conduisent à reconnaitre dans la théorie de l’évolution plus qu’une hypothèse.] It is indeed remarkable that this theory has been progressively accepted by researchers, following a series of discoveries in various fields of knowledge. The convergence, neither sought nor fabricated, of the results of work that was conducted independently is in itself a significant argument in favor of this theory.

What is the significance of such a theory? To address this question is to enter the field of epistemology. A theory is a meta-scientific elaboration, distinct from the results of observation but consistent with them. By means of it a series of independent data and facts can be related and interpreted in a unified explanation. A theory’s validity depends on whether or not it can be verified; it is constantly tested against the facts; wherever it can no longer explain the latter, it shows its limitations and unsuitability. It must then be rethought.

Furthermore, while the formulation of a theory like that of evolution complies with the need for consistency with the observed data, it borrows certain notions from natural philosophy.

And, to tell the truth, rather than the theory of evolution, we should speak of several theories of evolution. On the one hand, this plurality has to do with the different explanations advanced for the mechanism of evolution, and on the other, with the various philosophies on which it is based. Hence the existence of materialist, reductionist and spiritualist interpretations. What is to be decided here is the true role of philosophy and, beyond it, of theology.[112]

Whether Pope John Paul II truly is advocating the general theory of evolution, with a theistic addition is uncertain since his statements are not entirely clear. He speaks of theory in a philosophical way not generally accepted by the scientific community, who consider evolution a fact.[113] Second, there is doubt as to whether the press properly interpreted the French used by the Pope in which he may have been less charitable toward any general theory. Polish Roman Catholic scientist Maciej Giertych argues that une can mean “a” or “one.” The secular media translated the phrase “a hypothesis,” while the official Roman Catholic newspaper, L’Osservatore Romano, translated it “one hypothesis”: “Today, almost half a century after the publication of the Encyclical [Humani generis, 1950], new knowledge has led to the recognition of more than one hypothesis in the theory of evolution.”[114] Third, Pope John Paul II speaks of “theories of evolution” not referring necessarily to Darwinism nor neo-Darwinism. George Sim Johnson explains what he understands this statement to mean:

The Pope is aware of this controversy among evolutionists, writing that ‘rather than speaking about the theory of evolution, it is more accurate to speak of the theories of evolution. The use of the plural is required here . . . because of the diversity of explanations regarding the mechanism of evolution.’ And he goes on to reject the essence of Darwinism: “[T]heories of evolution which, because of the philosophies which inspire them, regard the spirit either as emerging from the forces of living matter, or as a simple epiphenomenon of that matter, are incompatible with the truth about man.”[115]

Fourth, the Pope addresses the importance of recognizing that the theory of evolution [or theories] is an interpretation of the scientific evidence which must be tenuous and also not allowed to override important Biblical considerations of the spiritual nature of man.

One cannot say, then, with any certainty that the Pope would embrace evolution in the wholehearted manner done by James H. Jauncey:

However, there is evidence on every hand that the conflict seems to be disappearing. There are a great number of biologists who at least tentatively believe in evolution, but who nevertheless are active members of Christian churches and find no problem at all. The general attitude is that even if evolution were to prove true, instead of making God unnecessary, it would merely show that this was the method God used.[116]

This union of evolution and theism may seem to work for many religious scientists but it does not sit well with many scientists who believe that the methodological naturalism of macroevolution is inconsistent with belief in an intelligent designer.[117] For example, Douglas Futuyma, a widely recognized author of an evolutionary biology college textbook, speaks of the inconsistency of holding to the belief of purposeful creation and also evolution: “Some shrink from the conclusion that the human species was not designed, has no purpose, and is the product of mere mechanical mechanism—but this seems to be the message of evolution.”[118]

Law professor Phillip Johnson believes this struggle to maintain Christian faith in a God who has created the universe and life and yet accept evolutionary naturalism, with its purposeless mechanism,[119] has caused many evolutionary theists to be defensive, seeking to justify themselves within academia rather than to influence the academic community. Johnson poses the dilemma for such a believer: “If the evolutionary scientists are right, then believers in God are deluded. People who think God is real either do not understand the meaning of evolution or for personal reasons are unwilling to follow the path of scientific understanding to its logical conclusion in naturalism.”[120]

Berkhof speaks for many Christian theologians when he argues that evolution and theism are not compatible:[121]

This [theistic evolution] has often been called derisively a ‘stop-gap’ theory. It is really a child of embarrassment, which calls God in at periodic intervals to help nature over the chasms that yawn at her feet. It is neither the Biblical doctrine of creation, nor a consistent theory of evolution, for evolution is defined as ‘a series of gradual progressive changes effected by means of resident forces’ (Le Conte). In fact, theistic evolution is a contradiction in terms. It is just as destructive of faith in the Biblical doctrine of creation as naturalistic evolution is; and by calling in the creative activity of God time and again it also nullifies the evolutionary hypothesis.[122]

B. The Rise of Creation-Science

1. Similarity to Earlier Creationism

Creation-science contains divergent elements, but is most closely aligned with what is known as scientific creationism,[123] or “young earth” creationism.[124] As evidenced in the “balanced treatment” legislation,[125] creation-science adheres to a literal interpretation of the Bible, advocating creation out of nothing,[126] a recent creation[127] (i.e., the days of Genesis 1 as 24 hour days), no evolutionary development from earlier ancestral forms (i.e., man and woman created after animals as fully grown),[128] fixed limits to changes,[129] a separate ancestry for humans and apes,[130] and a worldwide flood.[131]

Many scientists believe that it is quite likely that creation-science has great similarity to Biblical creationism advanced by Christianity. In seeking to demonstrate the use of causal reasoning, scientist Henry Morris notes that the theistic creationist may deduce a First Cause with certain attributes, but this First Cause looks very much like the God of the Bible:

The First Cause of limitless Space            must be infinite

The First Cause of endless Time            must be eternal

The First Cause of boundless Energy                must be omnipotent

The First Cause of universal Interrelationships                must be omnipresent

The First Cause of infinite Complexity            must be omniscient

The First Cause of Moral Values            must be moral

The First Cause of Spiritual Values            must be spiritual

The First Cause of Human Responsibility            must be volitional

The First Cause of Human Integrity            must be truthful

The First Cause of Human Love            must be loving

The First Cause of Life            must be living.[132]

2. Differences with Former Creationism

There are some differences, however, between creation-science and creationism, the most stark being the failure to identify the Creator with the God revealed in the Bible and the absence of Biblical references. There is also the allusion to a worldwide catastrophe which may be other than the Noahic flood.[133] Some of the legislative enactments on balanced treatment specifically disavow association with religious or sacred texts.[134] In setting forth the difference between scientific creationism and religious creationism, Whitehead and Conlan say,

A distinction has been made between ‘religious creationism’ and ‘scientific creationism’ . . . . Religious creationism relies on a literal reading of Genesis from the Old Testament of the Bible regarding, for example, the creation of Adam and Eve and the worldwide flood sent by God that destroyed all mankind except Noah and his family . . . . Scientific creationism, on the other hand, is ‘a theory of the origin of the earth and life that employs scientific argument and not a sacred text in its challenge of the general theory.’[135]

3. Underlying Assumptions of Creation-Science

a. Only Two Options Available

The arguments of creation scientists are based on the underlying postulate that only two options are available to explain the existence of the universe and life. Evolutionists have argued that the teaching of evolution is necessary for proper education in practically all fields of the natural and social sciences.[136] One of the responses of the courts and evolutionists has been that if one starts teaching creation, then one would be required to teach any number of other alternatives to evolution, making the teaching of science unworkable in the schools.[137] Though certainly there are a variety of ways in which evolution and creation may be explained,[138] in reality, only two general theories may be proposed with a number of sub-theories. As physicist Robert Jastrow, an evolutionist, has stated:

Either life was created on the earth by the will of a being outside the group of scientific understanding; or it evolved on our planet spontaneously, through chemical reactions occurring in nonliving matter lying on the surface of the planet. The first theory is a statement of faith in the power of a Supreme Being not subject to the laws of science. The second theory is also an act of faith. The act of faith consists in assuming that the scientific view is correct, without having concrete evidence to support that belief.[139]

In addition, George Wald, Harvard biologist, has properly stated: “[T]here are only two possibilities: either life arose by spontaneous generation . . . or it arose by supernatural creation . . . there is no third position.”[140]

b. Characteristics of the Options

Within broad strokes, these two competing philosophies of origins are direct opposites.[141] This mutual exclusivity may be graphed as follows:

Evolution                           Creation

Humanism                        Theism

Naturalism                Supernaturalism

Nature                            God

Impersonal Force                  Personal being

Chance                             Design

Mediterranean cosmologies                Hebrew Scriptures

Man as animal                         Man as image of God

Relative truth                          Absolute Truth

Amoral or non-moral                      Moral law of Creator[142]

4. Reasons for a Two-Model Approach

Those who champion the balanced treatment of creation and evolution within the public schools set forth a number of reasons why they believe such balance is needed. First, they argue the religion of secular humanism[143] is being promoted in public schools through the teaching of evolution.[144] If evolution is a tenet of secular humanism, it is clearly arguable that teaching it would be an establishment[145] of religion[146] in violation of the First Amendment.[147]

Second, it is averred that when the state becomes hostile to religion[148] by means of promoting an alternate and antagonistic system to the religious views of others,[149] i.e., parents and children in the public schools, there is a violation of free exercise of religion.[150] It is necessary for the state to remain neutral between competing systems of religious ideology;[151] this may be accomplished by teaching no particular view, or by non-preferential treatment of all views. [152]

Third, advocates of balanced treatment maintain that teaching creation as science is just as valid as the teaching of evolution.[153] This is so, it is stated, because the general theory of evolution and the theory of creation are equally religious and equally scientific.[154] Both, it is argued, rely on empirical data and philosophical postulates[155]

Fourth, when teaching origins, both models must be taught for there to be neutrality.[156] There are only two possible models: either the universe and subsequent life come into existence from a Creator or everything came into existence in and of itself.[157]

Fifth, the teaching of creation aides scientific diversity and provides a methodology that increases student educational development.[158] Since many scientists have become creationists and teach at various universities throughout the United States,[159] presentation of the theory avoids discrimination of a theory held by a minority within the scientific community.[160]

E. The Intelligent Design Movement

1. Introduction to Intelligent Design

A new movement has now arisen to challenge naturalistic evolution. Intelligent design, like creationism, opposes a mere chance universe, as reflected in the philosophy of Bertrand Russell:

That man is the product of causes which had no prevision of the end they were achieving, that his origins, his growth, his hopes and fears, his loves and beliefs are but the outcome of accidental collocations of atoms . . . and that the whole temple of man’s achievement must inevitably be buried beneath the debris of a universe in ruins—all these things . . . are yet so nearly certain that no philosophy which rejects them can hope to stand.[161]

On the other hand, intelligent design distinguishes itself from the older “scientific creationism” or creation science (e.g. Henry Morris, Duane Gish). Unlike creation science, intelligent design does not require that the great majority of scientists be in error about a number of postulates, which are rejected by creationism. For example, an old universe and earth is not opposed. The primary “givens” of the physical sciences are left untouched, such as relativity and radioactive dating, leaving the perspectives of physicists, chemists, and astronomers largely undisturbed. In the life sciences, common ancestry is not challenged out of hand, except with a few modifications. Even the power of natural selection to bring about diversity is accepted in general, so that conclusions drawn by biologists, biochemists, microbiologists, and other scientists are considered correct. Intelligent design, then, leaves most of the theory of evolution intact.[162]

The writings of the proponents of intelligent design are growing[163] so that the movement has gained the notice, and sometimes the animosity,[164] of the larger scientific community.

But intelligent design does challenge some conclusions drawn by a few scientists, like Richard Dawkins, who explain the origin and complexity of life as a result of blind chance: “Biology is the study of complicated things that gives the appearance of having been designed for a purpose.”[165] Intelligent design contradicts this perspective and builds on the perspective advocated by such pre-Darwinian theorists as William Paley, who believed that the universe and life gave proper inference of a designer.[166] Dawkins’s view runs counter to these intuitions and scientific inferences.

2. How are Intelligent Design and Darwinism Different?

The primary postulates of Darwinism remain unmoved in intelligent design theory. Certainly, Darwin was not the first to advocate that life evolved, but he was the first to offer a viable scientific explanation for how and why evolution might occur. He used the concept of the survival of the fittest, natural selection, to explain evolution. His five tenets of evolution are still accepted by most scientists:

1.      Variation exists within members of the same species. A species is a group of interbreeding animals or plants.

2.      Variation can be inherited. That is parents pass on their traits to their offspring.

3.      Resources like food, water and shelter are limited. Animals and plants compete for these limited resources.

4.      Natural selection is a direct consequence of the first three tenets. Darwin proposed that since natural resources are limited, individuals with favorable traits are more likely to survive and reproduce. Because these individual[s] pass on favorable traits to their descendants, nature selects life with favorable characteristics and preserves it. Darwin called this process natural selection or survival of the fittest.

5.      Under the guidance of natural selection simple life evolved into complex life. Since large evolutionary changes are too slow to be observed directly in scientific experiments, Darwin could not test this tenet. So, instead he extrapolated. He documented the small changes that can occur from one generation to the next, and proposed that through numerous, successive, slight modifications, guided by natural selection, the descendants of simple animals evolved into complex animals.[167]

Darwin’s first four tenets are verified by scientific experiments, but the fifth is only speculation and extrapolation. Evolution creates diversity, but not complexity.

The tenets of intelligent design theory are as follows:

1. The information needed for life is contained in a molecule known as DNA. This information can be analyzed with a field of science called information theory.

2. The complexity of life is a measure of the information in its DNA. Information and complexity are synonyms.

3. Natural selection does not create information. It only modifies existing information. Thus, new information must be created by genetic drift—random changes to DNA.

4. The odds associated with [the occurrence of] events in the past (like the origin and evolution of life) can be accurately determined using information and probability theory.

5. If the odds associated with [the occurrence of] the origin and evolution of life are too small, then design is implicated, and it may be inferred.[168]

3. Explanation of Intelligent Design

A good entrance into some of the issues surrounding intelligent design, evolution, and scientific creationism is provided by the following classic statement of the Paley-style[169] design argument by David Hume:

Look round the world: Contemplate the whole and every part of it: You will find it to be nothing but one great machine, subdivided into an infinite number of lesser machines, which again admit of subdivisions to a degree beyond what human senses and faculties can trace and explain. All these various machines, and even their most minute parts, are adjusted to each other with an accuracy which ravishes into admiration all men who have ever contemplated them. The curious adapting of means to ends, throughout all nature, resembles exactly, though it much exceeds, the productions of human contrivance; of human design, thought, wisdom, and intelligence. Since therefore the effects resemble each other, we are led to infer, by all the rules of analogy, that the causes also resemble, and that the Author of Nature is somewhat similar to the mind of man, though possessed of much larger faculties, proportioned to the grandeur of the work which he has executed.[170]

Hume’s Dialogues, a masterpiece in the philosophy of religion, go on to subject the design argument to rigorous, sustained criticism. The force of Hume’s philosophical criticism of the Paley-style design argument is admitted by theists as well as non-theists. For example, Alvin Plantinga, a leading contemporary theistic philosopher, says “Hume’s criticism seems correct. The conclusion to be drawn, I think, is that the teleological argument . . . is unsuccessful.”[171]

The design argument received a major blow from Darwinian evolution. Given Darwin’s theory of natural selection and descent with modification, a Designer—or any other means of supernatural intervention—no longer seemed to be necessary to explain the intricacies of biological systems such as the human eye. Paley’s Divine Watchmaker gave way to the “blind watchmaker” of naturalistic evolution. As Richard Dawkins put it: “All appearances to the contrary, the only watchmaker in nature is the blind forces of physics, albeit deployed in a very special way . . . . Natural selection . . . [if] it can be said to play the role of watchmaker in nature, it is the blind watchmaker.”[172]

However, “intelligent design” is breathing new life into the design argument. What is intelligent design? According to William Dembski, a leading advocate of the movement, intelligent design is “a new program for scientific research.”[173] More specifically, intelligent design is a scientific theory for “detecting and measuring information, explaining its origin and tracing its flow.”[174] To do this, intelligent design draws upon a reliable method for making a “design inference,” i.e. inferring the presence of design.[175] Dembski defines design as a “set-theoretic complement of the disjunction law-or-chance.”[176] That is, design can safely be inferred, once law and chance have both been eliminated, in that order. Dembski argues that the distinguishing earmark of design is that it is an event which is characterized by both specification and small probability.[177] Dembski’s “standard operating procedure”—in essence, is a decision-guiding flowchart—which summarizes the logic of the design inference. It has been dubbed “the explanatory filter.”[178] Dembski comments about the explanatory filter that it “faithfully represents the ordinary practice of humans in sorting through events whose mode of explanation is alternately law or chance or design.”[179]

A key virtue of Dembski’s explanatory filter is that it is not an ad hoc criterion invented merely for supporting the case for intelligent design in the creation-evolution debate. The explanatory filter summarizes the logic of detecting intelligent causes that are operative in such diverse, “nonreligious” fields as intellectual property protection,[180] forensic science and detection,[181] data falsification in science,[182] cryptography,[183] as well as in specialized programs like SETI (Search for Extraterrestrial Intelligence).[184] All of the above fields crucially rely upon the explanatory filter (and the logic of the design inference which it summarizes) to do their job. As Dembski says, “Entire human industries would be dead in the water without the explanatory filter.”[185] Dembski and other intelligent design theorists simply argue that when various features of biological systems (e.g. Behe’s examples of irreducible complexity in various cellular structures;[186] the information content latent in DNA[187]) are examined in light of the explanatory filter, a justified “design inference” will result. The explanatory filter makes precise the vague intuitions which were behind Paley’s argument from analogy. Thus, the disagreement between intelligent design theorists and their naturalistic critics is mostly over the application of the design-detecting method summarized in the explanatory filter, and not over the legitimacy of the method itself.

How does intelligent design differ from the older, scientific creationism? Briefly, we can list several points on which intelligent design differs from scientific creationism. First, accepting intelligent design only entails an acceptance of “creationism” which is conceived broadly enough to include either a belief in an “old” earth (i.e., which accepts the current scientific estimate of around 4.6 billion years) or even theistic evolution (i.e. an intelligent agent guiding the process of evolution). It does not commit one to an acceptance of a “young” earth.[188]

Second, and following upon the first difference, scientific creationism (whether young or old earth) usually consists of Fundamentalist and/or Evangelical Christians, whereas, intelligent design is more theologically diverse. For example, various contributors to the seminal volume, Mere Creation, represent diverse theological beliefs, e.g., John Mark Reynolds (Eastern Orthodox), Jonathan Wells (The Unification Church), David Berlinski (Judaism), and Michael Behe (Roman Catholic).

Third, intelligent design offers a bona fide research program in science;[189] scientific creationism focuses mainly on critiquing evolution, not on offering a positive research program of its own. Hence, intelligent design should be recognized as a distinct movement in contemporary science,[190] and it should not be casually lumped together with the older scientific creationism under the general rubric of “creationism.”[191]

III. The Evolution-Creation Controversy in the Courts

The issue of whether alternate paradigms of origins may be offered within the public schools has continued to be a cultural and educational controversy since the initial Scopes trial of 1925.[192] In the first half of the twentieth century, repeated efforts were made by citizens to introduce legislation blocking the introduction of the teaching of evolution in public classroom.[193] During much of the latter half of the twentieth century, equally strong efforts were made to prohibit the teaching of scientific evidence for a creationist paradigm of origins.[194] The latter group has contested creationism primarily through the court system. In this article I have chosen to limit discussion to only a few of the court cases which have challenged the creation model of origins.[195]

A. Scopes v. State[196] (1927)

On March 13, 1925 the sixty-fourth general assembly of the state of Tennessee passed the Butler Act,[197] also known as the anti-evolution statute, which forbade the teaching of evolution in tax-supported schools that human beings evolved from lower forms of life.[198] This is the law under which John T. Scopes was indicted and convicted.

Though there was considerable fanfare at the Scopes trial, defense attorney Clarence Darrow actually asked the jury to find John Scopes guilty in order that the issue might be won at a higher court on appeal.[199]

Scopes was found guilty and fined one-hundred dollars by the judge.[200] At the state supreme court, the trial court was overturned,[201] not on the merit of the Butler law but on the grounds that the jury, not the judge should have ascertained the appropriate fine.[202] The court considered the Butler Act not to be in violation of either the state or Federal constitutions.[203] The court took a narrow reading of the Fourteenth Amendment of the U.S. Constitution and the parallel section of the Tennessee constitution:

The statute before us is not an exercise of the police power of the state undertaking to regulate the conduct and contracts of individuals in their dealings with each other. On the other hand, it is an act of the state as a corporation, a proprietor, an employer. It is a declaration of a master as to the character of work the master’s servant shall, or rather shall not, perform. In dealing with its own employees engaged upon its own work, the state is not hampered by the limitations of section 8 of article 1 of the Tennessee Constitution, nor of the Fourteenth Amendment to the Constitution of the United States.[204]

The Tennessee Supreme Court chose not to concern itself with a violation of the Federal Constitution’s First Amendment because the United States Supreme Court at that time had not incorporated the Establishment Clause of the First Amendment against the states. Consequently, there was no basis in Tennessee law to consider the legislative prohibition of evolution, on religious grounds, to be violation of the law. After the decision, little more was said about the Scopes decision, though it was not the last attempt by citizens to forbid evolution in the schools of Tennessee.[205]

B. Epperson v. Arkansas[206] (1967)

The next major attempt to prevent the teaching of evolution was in the state of Arkansas. The state legislature passed a statute making it unlawful for a teacher in any state-supported school or university “to teach the theory or doctrine that mankind ascended or descended from a lower order of animals” or “to adopt or use in any such institution a textbook that teaches” this theory. The Arkansas statute contained some similarities, but also deliberate differences in language compared to the Butler Act.[207] The statute provided for a minimal fine for the violation of the law, but required that the one who violated the law would be removed from the position that he occupied with the state.

In 1965, the Little Rock, Arkansas school system hired a young woman by the name of Susan Epperson, who had graduated from the University of Illinois with a master’s degree in zoology, to teach tenth grade biology. At the beginning of the academic year, she was expected to use a textbook which was in violation of the statutory guidelines of the statue in question. Using the text would subject her to a fine and dismissal, so she instituted an action in the Chancery Court of the state, asking for a declaration that the Arkansas statute is void and to enjoin the state from dismissing her for violation of the statute.[208]

The Chancery Court invalidated the statute on the grounds that it infringed upon the First Amendment right of Free Speech.[209] On appeal, the state supreme court reversed.[210] Using reasoning similar to the Tennessee Supreme Court in Scopes,[211] the court held that “statutes pertaining to teaching of theory of evolution is constitutional exercise of state’s powers to specify curriculum in public schools.”[212]

The United States Supreme Court reversed the Arkansas Supreme Court upon First and Fourteenth Amendment grounds.[213] Moreover, it chose not to deal with the matter of Free Exercise of Religion.[214] Setting aside an acknowledged vagueness in the statute,[215] the Court’s decision rested on concerns for establishment of religion, rehearsing its Establishment Clause jurisprudence up to that time:[216]

the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group.[217]

In making this determination of the religious nature of the statute, the Court offered no proof other than indicating that the law was similar to the Tennessee law.[218] This is hardly a reassuring analysis from the Court. It never defined what it meant by “religion”[219] and never said what would make the law “secular.”[220] Moreover, in evaluating the Establishment Clause violation,[221] the Court seemed to question the sincerity of the Arkansas legislature’s purpose in passing the law, suggesting that the legislators sought to slip in the Biblical account, as did Tennessee, but learning from that situation, disguised their intentions:

Its antecedent, Tennessee’s “monkey law,” candidly stated its purpose: to make it unlawful “to teach any theory that denies the story of Divine creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee’s reference to the “story of the Divine Creation of man” as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, “denied” the divine creation of man.[222]

The invalidation of the statute based on a lack of secular purpose is puzzling in the instant case. First, the idea of legislative intent, purpose, or motive are terms difficult to define by the Court,[223] and in fact the Court has failed to do so.[224] Revealingly, John Hart Ely has observed, “The Court should stop pretending it does not remember principles for deciding on what occasions and in what ways the motivation of legislators or other government officials is relevant to constitutional issues.”[225]

In contrast to this unfounded action on the part of the Court is the case of Treen v. Karen B.[226] This case concerned a Louisiana statute which provided for daily prayer in the public schools. The court, in striking down the statute, indicated that the personal testimony of the individual proponents of a statute, which is given in court after enactment of a statute, is “far less persuasive than the intent embodied in the statute, since [the personal testimony] reflects only the partial perspective of those legislators, and not the collective intention of the entire body.”[227]

Secondly, the courts have inconsistently applied a purpose standard, probably due to the inadequacy of defining purpose. For example:

A recent Eighth Circuit case suggests a more hybrid test. The court of appeals held that a public school rule that prohibited school sponsored dances and dancing on school premises did not violate the establishment clause. The evidence of religious purpose was abundant. Several local churches had doctrinal stances against dancing, and these groups organized to vigorously support the rule when students challenged it. Nevertheless, the court upheld the rule.[228]

Thirdly, if the courts truly employed such a standard consistently, religious citizens would be disenfranchised from the body politic, as Hal Culbertson illustrates:

Motivation analysis could be used to invalidate a wide variety of laws under the establishment clause. Although religion is largely ignored by political scientists, studies indicate that religion frequently plays a major role in the political process. Religious persons frequently vote as a block on referenda. Epperson suggests that these referenda therefore might violate the establishment clause. Furthermore, religious groups have played a key role in conservative and liberal legislation, such as prohibition, civil rights, and welfare legislation. The Court’s analysis in McGowan and Edwards suggests that the activity of these religious groups may have invalidated the resulting legislation.[229]

This failure to accept legislative intent is uncharacteristic of the Court.[230] The Supreme Court has more regularly inquired into legislative motivation or intent in order to determine the matter of validity under the Establishment Clause. Only a few cases have relied exclusively on the purpose test to invalidate a law, nonetheless one may discern the Court’s attitude toward religious participation in the political process through its increasingly frequent use of this test.[231] However, the secular purpose test is severely flawed.

The Court was concerned that the legislation in question caused the state of Arkansas to fail to maintain religious neutrality in its administration of the law and thus contravened the Constitution: “[Government] may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another . . . . The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”[232] The Court felt that requiring teaching and learning “which is tailored to the principles or prohibitions of any religious sect or dogma” would violate this neutrality.[233]

Interestingly, the Court apparently would have considered the state’s act neutral if it had excised all discussion of the origin of man:

Arkansas’ law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of 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.[234]

C. McLean v. Arkansas Board of Education[235] (1982)

In 1982, a federal district court judge[236] ruled that a statute[237] mandating “balanced treatment” of evolution and creation violated the Establishment Clause of the United States Constitution, made applicable to the states by the Fourteenth Amendment.[238] The plaintiffs challenged this law on three grounds. First, they argued that Act 590 constituted an establishment of religion under the First Amendment to the U.S. Constitution. Second, the plaintiffs contended that the Act violated academic freedom guaranteed by the Free Speech Clause of the First Amendment. Last, they said that the Act was impermissibly vague and consequently violated of the Due Process Clause of the Fourteenth Amendment.[239]

The court proclaimed that the attempt to have creation taught in the schools has been the effort of religious fundamentalists, due to their belief in the inerrancy of Scripture and literal interpretation.[240] Judge William Overton evaluated the case solely by the legal standard set forth in Lemon. He said, “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion. . . ; finally, the statute must not foster ‘an excessive government entanglement with religion.’”[241] The judge held that the statute violated the First Amendment prohibition against establishment of religion because where the statute was simply and purely an effort to introduce the Biblical version of creation into the public school curriculum and thus its specific purpose was to advance religion, the fact that creation science was inspired by the Book of Genesis and that statutory definition of creation science was consistent with a literal interpretation of Genesis, left no doubt that primary effect of the statute was the advancement of particular religious beliefs. Thus, continuing involvement of state officials in questions and issues revolving around creation science created an excessive and prohibited entanglement with religion.[242]

The judge in McLean, unlike Scopes, was very proactive in the case, demonstrating bias at trial for the plaintiff. In the opinion, and in the trial,[243] the judge went to considerable effort to demonstrate that “creation-science” was not, in fact, science. In so doing he made several prejudicial comments.[244] One of the plaintiffs was the Arkansas Bishops of the United Methodist Church[245] and the judge’s own bishop testified for the plaintiffs,[246] a fact that would cause many judges to disqualify themselves.

The media treated the McLean case similar to what was seen at Scopes.[247] The trial was highly publicized but mischaracterized.[248] The state of Arkansas was at a considerable disadvantage since the ACLU had twenty-two lawyers working full-time on the case, while the state had only six.[249]

Though McLean is only a federal district decision, it has had considerable impact because it was the first time that a federal court had ruled that any mention of creation was ipso facto “religious teaching” in violation of the First Amendment, with the decision essentially resting on a legal definition for science that enshrined naturalism as a necessary component of science.[250] Judge Overton concluded that a sudden creation of the universe[251] out of nothing[252] was “inescapable religiosity”[253] and such a creation required a supernatural deity as found in Western religions.[254] He was unconvinced by Norman Geisler’s argument that acknowledgement of the existence of God is not religious unless the teaching seeks a commitment.[255] The judge then provided what he considered to be the essential characteristics of science: “1) It is guided by natural law; 2) It has to be explanatory by reference to natural law; 3) It is testable against the empirical world; 4) Its conclusions are tentative, i.e., are not necessarily the final word; and 5) It is falsifiable. (Ruse and other science witnesses).[256]

Judge Overton’s perspective that belief in a creator and sudden creation out of nothing necessarily entails religion falls far short of reasonable evidence. First, the legal definition of religion requires ultimate commitment,[257] rather than merely intellectual acceptance of a deity.[258] Second, if a religious source for scientific theories were rendered untenable, then many of the great scientific discoveries would be as much in violation of the First Amendment as creation science.[259] Third, the definition given by the judge fails to agree with the understanding of science in contemporary philosophy of science literature:

The McLean definition does not resemble, or come close to resembling, any definition of science existing in the philosophy of science literature, and has not been endorsed subsequently by any philosopher of science, except by certain courtroom witnesses from the McLean trial. The witness on whose testimony the judge’s opinion was based, [Michael] Ruse, later revised his points and offered a six-point list of “major characteristics.”[260]

Philosopher of science, Larry Laudan says regarding the definition of science in McLean:

Once the dust has settled, however, the trial in general and Judge William R. Overton’s ruling in particular may come back to haunt us; for, although the verdict itself is probably to be commended, it was reached for all the wrong reasons and by a chain of argument which is hopelessly suspect. Indeed, the ruling rests on a host of misrepresentations of what science is and how it works.

The heart of Judge Overton’s Opinion is a formulation of “the essential characteristics of science.” These characteristics serve as touchstones for contrasting evolutionary theory with Creationism; they lead Judge Overton ultimately to the claim, specious in its own right, that since Creationism is not “science,” it must be religion.

. . . .

The victory in the Arkansas case was hollow, for it was achieved only at the expense of perpetuating and canonizing a false stereotype of what science is and how it works. If it goes unchallenged by the scientific community, it will raise grave doubts about that community’s intellectual integrity. No one familiar with the issues can really believe that anything important was settled through anachronistic efforts to revive a variety of discredited criteria for distinguishing between the scientific and the nonscientific.[261]

Laudan believes the five criteria proffered by Judge Overton are specious.[262] Philip Quinn agrees with Laudan regarding the criteria of science advanced by Judge Overton:

Unfortunately, it is all too clear that it is unsound. The problem is that [the McLean definition] is demonstrably false. None of the characteristics it alleges to be necessary conditions for an individual statement to have scientific status is, in fact, a necessary condition of scientific status of an individual statement.[263]

It appears that the seemingly final conclusion of the court in McLean has established a view of science and religion which is built on the sand and will necessarily need to be reviewed again.

D. Edwards v. Aguillard[264] (1987)

Edwards v. Aguillard is the primary case in which the United States Supreme Court has spoken directly to the issue of the teaching of a view of creation alongside evolution.[265] The case originated in the legislature of Louisiana. The legislature passed a creation statute[266] similar to the one in Arkansas and a number of other states.[267] However, since the case has been dealt with thoroughly elsewhere,[268] for our purposes it suffices to point out that even though the Louisiana statute was found to have an unconstitutional religious purpose, in actuality, the ruling of the Court in Edwards is a less restrictive one than the McLean decision. Substantial optimism exists among those in the creation science movement that Edwards will be overturned,[269] due to the aging of the justices, the dissent of the Fifth Circuit, and the strong support for a balanced approach among lawyers.[270]

Is the optimism justified by the reasoning of the majority opinion of the Supreme Court? This author believes it is. Though I do not believe the Court was required to find a constitutional violation on the facts presented in the case, it is my opinion that under different facts, the Supreme Court should hold differently.

The majority in Edwards found the statute in violation of the Establishment Clause, but under Lemon’s first prong of a primary secular purpose,[271] it did not hold that creation is inherently religious. It expressly stated that teachers may present other scientific theories besides evolution: “[T]eaching 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.”[272] Even the ACLU’s Nadine Strossen acknowledges that creation could be presented as a valid scientific alternative to evolution: “Absent the statute, nothing would have prevented any school teacher who so chose from discussing any scientific shortcomings in evolutionary theory or any scientific evidence supporting a different theory of origins, including a creation theory.”[273]

E. Some Federal Circuit Court Cases

Since Edwards[274] there have been several cases that have arisen in the federal appellate system. An examination of these cases reveals that the state of the law in this matter is deeply entrenched against allowance of any form of creationism within the school system and it disallows the notion that evolution promotes religious ideology.

1. Mozert v. Hawkins County Board of Education[275] (1987)

In Mozert, approximately ten years after Daniel v. Waters,[276] students and their parents brought an action seeking injunctive relief and money damages for an alleged violation of their First Amendment right to free exercise of religion.[277] The claim was based on the exposure of the children to objectionable ideas found in the course textbooks, among them[278] the theory of evolution. At first the children had been allowed to read their assignments from older textbooks not containing objectionable material,[279] but then, in November 1983, the Hawkins County School Board voted to require all students to use the newer textbooks. The plaintiffs promptly filed suit alleging that the school board was “forcing the student-plaintiffs to read school books which teach or inculcate values in violation of their religious beliefs and convictions” which was “a clear violation of their rights to the free exercise of religion protected by the First and Fourteenth Amendments to the United States Constitution.”[280] Even though the textbooks did contain a disclaimer that evolution was a theory, not a proven scientific fact,[281] the plaintiffs believed that the widespread use of evolution belied that statement.[282]

The district court held that the plaintiffs’ First Amendment rights had been violated because the school board “has effectively required that the student plaintiffs either read the offensive texts or give up their free public education.”[283] Upon appeal by the school board, the Sixth Circuit held that requiring the students to read the texts did not burden their rights of Free Exercise and noted that the only way to avoid the conflict would be to eliminate all references to the objectionable topics.[284] The court, citing Epperson, observed that “the Supreme Court has clearly held that it violates the Establishment Clause to tailor a public school’s curriculum to satisfy the principles or prohibitions of any religion.”[285] Though the plaintiffs may be offended by certain readings in the textbooks, no evidence was presented that the students were “ever required to affirm his or her belief or disbelief in any idea or practice mentioned in the various stories and passages contained in the Holt series.”[286]

Through rehearsal of case law,[287] the court distinguished “exposure” to other ideas, even objectionable ones, from being coerced to accept ideas.[288] The court explained the burden required by the plaintiffs:

The lesson is clear: governmental actions that merely offend or cast doubt on religious beliefs do not on that account violate free exercise. An actual burden on the profession or exercise of religion is required. In short, distinctions must be drawn between those governmental actions that require or result in exposure to attitudes and outlooks at odds with perspectives prompted by religion.[289]

Consequently, “[t]o establish a violation of that clause [Free Exercise], a litigant must show that challenged state action has a coercive effect that operates against a litigant’s practice of his or her religion.”[290]

The court made a distinction between “civil tolerance” and “religious tolerance.” Concerning this distinction, Lively noted:

The “tolerance of divergent . . . religious views” referred to by the Supreme Court is a civil tolerance, not a religious one. It does not require a person to accept any other religion as the equal of the one to which that person adheres. It merely requires a recognition that in a pluralistic society we must “live and let live.”[291]

Civil tolerance requires citizens to respect the legal and civil rights of others to believe and practice as they may desire. The teaching of civil tolerance serves a compelling interest of the state in preparing students for good citizenship, teaching that other persons with different opinions and religious views should be treated with respect. Religious tolerance is the idea that citizens should respect the equal value of all other religions.[292] The plaintiff’s rejection of “a religious tolerance that all religions are merely different roads to God” was viewed by the court as “what is lacking in the plaintiff’s case.”[293] The school district is not trying to require the students to accept all religious views, but merely to acquaint them with different views.[294] The court continued, “What is absent from this case is the critical element of compulsion to affirm or deny a religious belief or to engage or refrain from engaging in a practice forbidden or required in the exercise of a plaintiff’s religion.” One well-reasoned response to the court stated:

Schools have no business, much less a compelling interest in, teaching religious tolerance. To teach religious tolerance in its blatant form—to teach as truth that all faiths are equally valid—would violate the Establishment Clause because the belief that all roads to God is as much a religious belief as the belief that only one road leads to God.[295]

This commitment to, and confusion between, civil and religious toleration has led educators to believe that they have a duty to inculcate, as one National Education Association publication stated, “a respect for the . . . validity of divergent religious beliefs.”[296] This fails to achieve constitutional tolerance and may actually be counterproductive to its alleged purpose.

Schools often teach a “softened” religious tolerance—one that never actually states that all religions and beliefs are equally valid, but nevertheless implies it by exposing school children to a wide variety of religious and cultural beliefs and practices presented in a positive light. . . . The implied message of these programs is a mushy, feel-good diversity that there is good in all religions and that children should therefore respect and appreciate those who belong to faiths other than their own. Teaching children religious tolerance—whether “blatant” or “softened”—not only fails to serve a compelling interest in teaching children to be citizens, it is also arguably antithetical to true citizenship.[297]

Proper instruction of students regarding religion should not result in trivializing the differences between religions.

Thus, teaching religious tolerance—softened or blatant—contravenes rather than serves the purpose of preparing students to be citizens in a pluralistic society. In seeking to teach children to respect diversity and pluralism by focusing on the “good” aspects of various religions, schools end up trivializing differences that to many religious believers are extremely weighty. Trivializing religious differences in the name of respecting them is antithetical to a basic premise of the Religion Clauses of the Constitution—that religious differences (rather than uniformity) will characterize our society because of the paramount importance the Constitution places on religious conscience to be free from governmental coercion.[298]

2. Webster v. New Lenox School District[299] (1990)

Ray Webster was a public school teacher who was prohibited by his school district from teaching non-evolutionary theories of creation in his classroom.[300] The case arose when one of Webster’s junior high social studies students complained that Webster violated the separation of church and state by teaching creation science.[301] His superiors asked him not to teach the subject since to do so advocated a particular religion.[302] Webster sued for injunctive and declaratory relief from the district court, alleging that this prohibition violated his First[303] and Fourteenth[304] Amendment rights.[305] The school district contended that to allow Webster to teach as he desired would be an establishment of religion in contravention of the First Amendment.[306] Webster claimed that he had a First Amendment right to determine the curriculum content of his class and that he should be allowed to teach a non-evolutionary theory of creation in his classroom.[307]

Mr. Webster contended that the school’s restrictions interfered with his First Amendment rights of speech and academic freedom.[308] He claimed the right to teach three religiously oriented subjects: the influence of religion in the founding of the United States, the religious ideas of Jefferson and Franklin, and creation science.[309] The school superintendent agreed that Webster could teach the first two subjects, but not creation science, since doing so would be religious advocacy.[310]

On appeal, the Seventh Circuit held that a school may prohibit a teacher from teaching creation science in order to fulfill its duty to guarantee that the Establishment Clause of the First Amendment is not violated. The court agreed with the district court that the school district had not violated Webster’s free speech rights when it prohibited him from teaching creation science,[311] since creation science, in the view of the court, is a form of religious advocacy.[312]

In rejecting Webster’s claim, the court said that the First Amendment is not “a teacher license for uncontrolled expression at variance with established curricular content.”[313] Since students were required by law to attend school and because junior high school students were at an immature stage of intellectual development, the school board had a greater responsibility for controlling the curriculum.[314] Consequently, an individual teacher had no right to set aside the directives of school authorities. The actions of the school board toward Webster’s teaching of creation science, then, were prudent[315] and appropriate.[316]

Educators are not in violation of the First Amendment, according to the Seventh Circuit, as long as their actions are “reasonably related to legitimate pedagogical concerns.”[317] In this case, the pedagogical concern was that Webster’s subject matter created Establishment Clause violations.[318] What is troubling about the court’s analysis is that it nowhere explains how Webster’s actions established religion in contravention of the First Amendment prohibition. Mr. Webster’s stated purpose was to “explore alternate viewpoints,” and the record does not indicate that indoctrination of any kind was occurring. The court does not proffer any criteria for distinguishing a religious viewpoint from a secular one.[319] The court fails to explain how evidence indicating that the Earth is not four billion years old establishes a religious creed, while evidence regarding the evolution of man is considered secular.[320]

3. Bishop v. Aronov[321] (1991)

The Eleventh Circuit presented a different view on the issues of freedom of speech and religion in Bishop v. Aronov. In this case, a university professor brought action against a university board of trustees, challenging a memorandum which instructed him to refrain from interjecting religious beliefs or preferences during his class time and from conducting optional classes to discuss religious perspectives on academic topics.[322] To enable student’s to recognize his Christian bias, Phillip Bishop, a professor of exercise physiology at the University of Alabama, commented in class that he was a Christian, and that his religious beliefs colored every aspect of his life.[323] The professor responded occasionally to students’ questions about stress with his religious beliefs, and at times used the term “God” in his lectures on the “creative force behind human physiology.”[324] Professor Bishop held optional classes open to all students, entitled “Evidences of God in Human Physiology.”[325] He used blind grading for all of his courses and did not require any of his students to attend the optional class.[326]

Unlike previous cases discussed above concerning the public junior and senior high classrooms, where the courts have been concerned with the presentation of religious ideas within the educational setting because of the impressionability of the students[327] or the mandatory nature of the setting,[328] in the instant case, neither is present.

The United States District Court for the Northern District of Alabama granted the professor’s motion for summary judgment.[329] Relying on Widmar v. Vincent[330] and content discrimination in a public forum, the district court had determined that the “University [had] created a forum for students and their professors to engage in a free interchange of ideas.”[331] Regarding the memorandum, the court decided that it was overbroad and vague because “[i]t reaches statements not violative of the Establishment Clause and fails to provide adequate notice of the proscribed speech.”[332] Moreover, the district court held that professor Bishop had a primarily secular purpose that did not violate the Establishment Clause.[333]

On appeal, the Eleventh Circuit Court of Appeals reversed the lower court, holding that the memorandum did not infringe on the professor’s free speech or free exercise of religion rights, and that the memorandum did not establish religion.[334] In response to the district court, the circuit court rejected the argument that the university provided an open forum of ideas.[335] The court stated,

While the University may make its classrooms available for other purposes, we have no doubt that during instructional periods, the University’s classrooms are “reserved for other intended purposes,” viz., the teaching of a particular university course for credit. Thus, we hold that Dr. Bishop’s classroom is not an open forum[336]

The court then turned to whether Bishop’s free speech or free exercise rights were infringed. The court decided to accept a narrow construction of the memo[337] because it “responded to particular conduct by Dr. Bishop” and “can be said to be ‘readily susceptible’ to a narrowing construction.”[338] Bishop was clearly put on notice concerning what he could and could not do.[339] Though the University encouraged and allowed academic freedom for its faculty,[340] “plainly some topics understandably produce more apprehension than comfort in students.”[341]

The reasoning of the appellate court is faulty on several counts.[342] It fails to develop a meaningful understanding of academic freedom, especially within the context of the university.[343] Second, it speaks of not desiring to determine the matter based on a public-forum approach and then relied heavily on Kuhlmeier, [344] which used a public-forum analysis.[345] In so doing, the court failed to distinguish between the different criteria for primary and secondary schools versus that of mature students within a university.[346] The Eleventh Circuit in Bishop employed a rational basis standard of review[347] in deciding whether the Establishment Clause would be violated, as the university claimed,[348] if it did not control its curriculum in spite of the professor’s speech rights. With such viewpoint discrimination the court should have used a strict scrutiny standard.[349]

4. Peloza v. Capistrano School District[350] (1994)

John Peloza filed an action against the school district in which he taught claiming that the school district had violated his freedom of speech by requiring him to teach evolution and by prohibiting him from explaining creationism.[351] He argued, similar to the students in Wright v. Houston Independent School District,[352] that evolution is a religion, and so teaching it would be violation of the Establishment Clause of the First Amendment.[353] This is so because evolution is a tenet of secular humanism,[354] a religion,[355] making evolution also a religion.[356] Additionally Peloza argued that even if he were not allowed to teach creationism in the classroom, he should be allowed to discuss religion and creationism with students during private, non-instructional times, such as lunch, class breaks, and before and after school.[357]

The school replied that evolution was in the biology curriculum because it was the explanation accepted by the nation’s school districts for science curricula.[358] The school district argued that they had a compelling state interest in adhering to a standard curriculum,[359] citing Webster’s[360] rule that an individual teacher does not have the right to ignore the curriculum established by school officials.[361]

The district court affirmed the school district’s arguments, writing that “[f]amilies entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.”[362] The district court also mentioned that due to the impressionable age of the children, the school officials must exercise more control over the curriculum than is required in a university,[363] commenting that “university students are more mature and are therefore better able to separate opinion from fact and infuse their own personal beliefs into a given framework.”[364]

The Ninth Circuit Court of Appeals upheld the district court, finding that a teacher’s First Amendment right to free exercise of religion is not infringed by a school district’s requirement that evolution be taught in biology classes.[365] The court rejected the plaintiff’s definition of a religion of “evolutionism,”[366] finding that the school district had simply and appropriately required a science teacher to teach a scientific theory in biology class.[367]

Peloza’s contention that evolution was a religion was countered by the court’s reference to McLean[368] that “it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause.”[369] Consequently, Peloza’s complaint was dismissed.[370]

5. Freiler v. Tangipahoa Parish Board of Education[371] (1999, 2000)

A noteworthy recent addition to this line of jurisprudence is Freiler v. Tangipahoa Parish Board of Education. The case has been discussed effectively elsewhere,[372] so for our purposes it suffices to point out that an intriguing aspect of Freiler is its mention of the teaching of intelligent design.[373] Evolutionist Molleen Matsumura says, “The decision is also noteworthy for recognizing that curriculum proposals for ‘intelligent design’ are equivalent to proposals for teaching ‘creation science.’”[374]

IV. May the Teaching of Intelligent Design in the Public Schools Be Constitutionally Permissible?

A. Is Intelligent Design Science?

1. What is Science?

Much of the difficulty in the creation-evolution controversy relates to the definition of what is science and what is religion. The Oxford Dictionary defines science as “[a] branch of study which is concerned either with a connected body of demonstrated truths or with observed facts systematically classified and more or less colligated by being brought under general laws, and which includes trustworthy methods for the discovery of new truth within its own domain.”[375] The emphasis in this definition is on demonstration and observation for the purpose of further study.

2. Science as Philosophy

The above definition, however, may be inadequate since some view science as also referring to a system or world-view based upon what are considered to be facts. Under this definition science would be a philosophy. Related to this perspective of science as philosophy is the nature of common sense assumptions by science. Science, for example, assumes the existence of an external world, which might be debated philosophically since this is understood through sense organs and it is not certain how accurate they are; it assumes that the external world is orderly; it assumes that the external world is knowable; it assumes the existence of truth; it assumes the laws of logic; it assumes the reliability of our cognitive and sensory faculties to serve as truth-gathers and as a source of justified beliefs in our intellectual environment; it assumes the adequacy of language to describe the world; it assumes the existence of values used in science (e.g. test theories fairly and report test results honestly); it assumes the uniformity of nature and induction; and it assumes the existence of numbers.[376]

3. When is Science not really Scientific?

Science, then, is not devoid of presuppositions and its current definition contains circular reasoning. If a “Watchmaker” is carefully excluded at the beginning, we need not be surprised if no “Watchmaker” appears at the end. The stark reality is that

[t]he scientist enters into a study with certain preconceived notions and interprets the results of the study with the same preconceived notions. True objectivity simply does not exist in the scientific world. A creationist and an evolutionist can agree on the data, the physically observable phenomena (whether it be the distribution of radioisotopes in a given geological structure or the bone formations of a living animal or fossil). They will then proceed to interpret that data according to their own presuppositions (‘God created this’ or ‘It all happened by accident’). Both employ the same data, but reach strikingly different conclusions.[377]

Science as a method of seeking to discover truth should be distinguished from scientism, a commitment to a supposed scientific method at the expense of truth.

Scientism is the view that science is the very paradigm of truth and rationality. If something does not square with currently well-established scientific beliefs, if it is not within the domain of entities appropriate for scientific investigation, or if it is not amenable to scientific methodology, then it is not true or rational. Everything outside of science is a matter of mere belief and subjective opinion, of which rational assessment is impossible. Science, exclusively and ideally, is our model of intellectual excellence.[378]

A distinction exists between strong and weak scientism:

Note first that strong scientism [there are no truths apart from scientific truths; all truths must be tested according to scientific methodology] is self-refuting. A proposition (or sentence) is self-refuting if it refers to and falsifies itself. For example, ‘There are no English sentences’ and ‘There are no truths’ are self-refuting. Strong scientism is not itself a proposition of science, but a second-order proposition of philosophy about science to the effect that only scientific propositions are true or rational to believe. And strong scientism is itself offered as a true, rationally justified position to believe.”

There are two more problems that count equally against strong and weak scientism. First, scientism (in both forms) does not adequately allow for the task of stating and defending the necessary presuppositions for science itself to be practiced (assuming scientific realism). Thus scientism shows itself to be a foe and not a friend of science.

Science cannot be practiced in thin air. In fact, science itself presupposes a number of substantive philosophical theses that must be assumed if science is even going to get off the runway. Each of these assumptions has been challenged, and the task of stating and defending these assumptions is one of the tasks of philosophy. The conclusions of science cannot be more certain than the presuppositions its rests on and uses to reach those conclusions.

. . . .

There is a second problem that counts equally against strong and weak scientism: the existence of true and rationally justified beliefs outside of science. The simple fact is that true, rationally justified beliefs exist in a host of fields outside of science. Strong scientism does not allow for this fact, and it is therefore to be rejected as an inadequate account of our intellectual enterprise.[379]

4. Has the McLean Decision Disqualified Intelligent Design as Science?

Judge Overton set forth standards of what is science, which we have already seen, do not square with the current notion of the definition of science.[380] His definition excludes whatever cannot be explained by natural laws.[381] Since intelligent design assumes a designer of creation exists outside of the natural order, then presumptively, intelligent design could not be science under this view.[382]

This simplistic notion of science excludes much of what is understood by most scientists as true science. Take for example the distinction between existence and explanation:

For centuries scientists have recognized a difference between establishing the existence of a phenomenon and explaining that phenomenon in a lawlike way. Our ultimate goal, no doubt, is to do both. But to suggest, as the McLean Opinion does repeatedly, that an existence claim . . . is unscientific until we have found the laws on which the alleged phenomenon depends is simply outrageous. Galileo and Newton took themselves to have established the existence of gravitational phenomena, long before anyone was able to give a causal or explanatory account of gravitation. Darwin took himself to have established the existence of natural selection almost a half-century before geneticists were able to lay out the laws of heredity on which natural selection depended. If we took the McLean Opinion criterion seriously, we should have to say that Newton and Darwin were unscientific; and, to take an example from our own time, it would follow that plate tectonics is unscientific because we have not yet identified the laws of physics and chemistry which account for the dynamics of crustal motion.[383]

The universe gives strong indications of an intelligent designer[384] and denial of such makes a detractor appear less than straightforward.[385] The denial of creatio ex nihilo,[386] or a creator, as non-scientific solves no problems for modern science, since the big bang assumes essentially the same thing,[387] and scientists regularly speak of creation,[388] implying creator, in contrast to the eternality of matter, with no creator.[389]

B. Is Intelligent Design Religious?

Intelligent Design and creatio ex nihilo

The McLean opinion argued that creation, by definition, must be viewed as religious,[390] but the Supreme Court has ruled that a religious view consistent with a secular view does not violate the Establishment Clause.[391] Judge Overton wrote regarding creatio ex nihilo:

“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. . . .

. . . .

The idea of sudden creation from nothing, or creation 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. . . .[392]

Judge Overton’s simplistic understanding of science and religion are clearly revealed here. First, creatio ex nihilo did not originate in western thinking, but was Hebraic in origin with the Christian west borrowing this idea from the Near Eastern view of the Hebrews. Second, as we have seen above,[393] the big bang theory of the origin of the universe generally presupposes a creation out of nothing, but is not religious. Third, the settled law, wrongly stated by Judge Overton, is that religion requires commitment and devotion, not dispassionate analysis of the existence of higher being.[394] Justice Scalia understood this well when he affirmed that the idea of a prime mover or designer in ancient Greek thought was not religious in nature.[395] Fourth, McLean seems to imply that if something is not scientific, it must be religious, but such thinking has puzzling results for explaining philosophical views which are not scientific but are also not religious.[396]

C. May Intelligent Design Survive Constitutional Challenge?

1. The Problems the Creationists Face

Given the history of the debate regarding the teaching of creation and evolution in the classroom, and the gradual enthronement of evolution, the question arises whether it is possible for a form of creation to be taught, constitutionally, in the public schools of America?

History reflects a very hectic past with attempts by creationists to forbid the teaching of evolution,[397] to forbid the inclusion of evolution in textbooks,[398] to prohibit the denial of Biblical creation,[399] to write disclaimers against denial of Biblical creation,[400] to argue against evolution based on its religious nature,[401] to enjoin the requirement to teach or be taught evolution or to be able to teach or be taught creation,[402] and to require that a balanced presentation of evolution and creation be given in public schools if either is taught.[403] All of these attempts by creationists have had limited success, if not outright failure.

With such a history, is the well too poisoned for a creation theory to receive a fair hearing the courts or society? Evolution is consistent with ancient religions[404] and contemporary secular humanistic religion,[405] and does not carry with it religious associations in the minds of the courts,[406] media, and society at large;[407] whereas, the teaching of creation immediately is identified with the Bible[408] and even with religious fundamentalism.[409] As one commentator observed, “As long as the relationship between creation science and Genesis is sufficiently well known by society generally, the teaching of creation science will continue to have a religious tinge regardless of how secular (or scientific) its presentation may be.”[410]

The difficulty of the task for proponents of creation is demonstrated by the fact that one commentator has argued that even if creation could be demonstrated to be scientific, its religious nature would preclude it from being taught.[411] Wexler concedes that intelligent design could be considered science, but nonetheless would violate the Establishment Clause as being a religious doctrine.

Wexler’s argument fails because “design theory does not fit the dictionary definition of religion, or the specific test for religion adopted by the Ninth Circuit in its recent cases concerning the establishment of religion.”[412] The circuit court adopted the recommendation of constitutional scholar Laurence Tribe that “anything ‘arguably non-religious’ should not be considered religious in applying the Establishment Clause.”[413] In another case, the Ninth Circuit relies on a three-part test to define religion that is nearer to the original sense of the “establishment” of the of a religion intended by the framers of the First Amendment:[414]

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.[415]

Under these two rulings, as articulated by the Ninth Circuit, design theory could survive a constitutional challenge. Intelligent design does not violate the three-part test. Rather than being an attempt to penetrate “ultimate questions,” design theory seeks only to answer a question posed by Darwinian theory and contemporary biologists, namely, “[h]ow did biological organisms acquire their appearance of design?”[416] The answer relates only to a designer without identifying the designer. Certainly, intelligent design is consistent with theism, but such does not cause the theory to be unconstitutional. As Justice Powell writes in his concurring opinion in Edwards v. Aguillard, “A decision respecting the subject matter to be taught in public schools does not violate the Establishment Clause simply because the material to be taught ‘happens to coincide or harmonize with the tenets of some or all religions.’”[417]

Second, intelligent design does not qualify under the legal definition of religion articulated by the Ninth Circuit concerning a comprehensive belief system “as opposed to an isolated teaching:”

Design theory does not offer a theory of morality or metaphysics, or an opinion on the prospects of an afterlife. It requires neither a belief in divine revelation nor a code of conduct; nor does it purport to uncover the underlying meaning of the universe or to confer inviolable knowledge on its adherents. It is simply a theory about the source of the appearance of design in living organisms. It is a clear example of an “isolated teaching,” one that has no necessary connections to any spiritual dogma or church institution. Design theory has no religious pretensions. It simply tries to apply a well-established scientific method to the analysis of biological phenomena.[418]

Last of all, design theory does not trigger the third part of the suggested test by the Ninth Circuit regarding “formal and external signs.” There are no sacraments, no sacred texts, observance of holidays, and no ordinations.

2. Future Directions for the Creationist Movement

For creationism to have any hope of success it will need to minimize its goals and focus its efforts. Unlike previous attempts in the first half of the twentieth century to dislodge evolution by legal fiat, or in the latter half of the last century to remove it legally by identifying it with its religious presuppositions, creationists must allow the theory to die from lack of intellectual oxygen, or collapse in confrontation with the intellectual battles of the intelligent design movement in the public square.[419] Scientists increasingly have difficulty in sustaining the many inconsistencies and lack of evidence for the general theory of evolution.[420] Creationists should concentrate efforts on the more fundamental question of origins, particularly the matter of intelligent design versus random chance for the beginning of the universe.[421] Any reference to a young earth, flood geology, fixation of species, or the like, immediately sends signals of Biblical creationism, while discussion of such mathematical and scientific views of probability or information theory[422] removes the discussion from the traditional mode. Perception is nine-tenths of the problem.

Intelligent design theory, then, does not bring the same concerns as traditional creationism,[423] and because of this may not receive some of the emotional, and grassroots, support that carried along previous attempts, but it is likely, due to its method of argument, its lack of obvious allusion to fundamentalism and Christian theology, and its seemingly less grandiose proposals, that it may fare better in the courts and in the classrooms. Such a scenario, balancing design and chance rationales for the origins of the universe and life, should be proposed to school boards,[424] taught in public school classrooms,[425] and presented in legislation.[426]

The United States Supreme Court in Edwards did not hold that the teaching of creation is religious in contravention to the Establishment Clause.[427] The Court only ruled that a law, such as the Louisiana Act, must have a demonstrably, though not exclusively, secular purpose,[428] and consequently a primary effect which neither advances nor inhibits religion.[429] For legislators or teachers who are truly not seeking to get the “Bible back into school,” but simply want fair representation of all competing scientific theories to be presented to students, intelligent design offers a real possibility to achieve that goal.

Appendix 1

The dissent of seven in Aguillard v. Edwards[430] wrote a severe reprimand of the majority for failure to listen to the case en banc. The dissent is important enough to this matter to be viewed in total:

GEE, Circuit Judge, with whom CLARK, Chief Judge, and REAVLEY, GARWOOD, PATRICK E. HIGGINBOTHAM, ROBERT MADDEN HILL and EDITH HOLLAN JONES, Circuit Judges, join dissenting.

Today our full court approves, by declining review en banc, a panel opinion striking down a Louisiana statute as one “respecting an establishment of religion.” The panel reasons that by requiring public school teachers to present a balanced view of the current evidence regarding the origins of life and matter (if any view is taught) rather than that favoring one view only and by forbidding them to misrepresent as established fact views on the subject which today remain theories only, the statute promotes religious belief and violates the academic freedom of instructors to teach whatever they like.

The Scopes court upheld William Jennings Bryan’s view that states could constitutionally forbid teaching the scientific evidence for the theory of evolution, rejecting that of Clarence Darrow that truth was truth and could always be taught--whether it favored religion or not. By requiring that the whole truth be taught, Louisiana aligned itself with Darrow; striking down that requirement, the panel holding aligns us with Bryan.

I disagree with this holding; and because we endorse it today, I respectfully dissent.

BACKGROUND

In 1981 the Louisiana legislature passed the legislation which is the subject of today’s controversy. Sections 17:286.1 through 286.7, Louisiana Revised Statutes. Its full text appears as an appendix to the panel opinion, at 765 F.2d 1251, 1258. The general purport of this law is to provide three things:

1. That the “subject of origins” of the universe, of life, and of species need not be taught at all in the public schools of Louisiana; but,

2. That if either “creation-science” (defined as “the scientific evidences for creation and inferences from” them) or “evolution-science” (parallel definition) be taught, balanced treatment be given the other; and,

3. That, if taught, each be taught as a theory, “rather than as proven scientific fact.”

I am as capable as the panel of making an extra-record guess that much, if not most, of the steam which drove this enactment was generated by religious people who were hostile to having the theory of evolution misrepresented to school children as established scientific fact and who wished the door left open to acceptance by these children of the Judeo-Christian religious doctrine of Divine Creation. If so, however, they did not seek to further their aim by requiring that religious doctrine be taught in public school. Instead, they chose a more modest tactic—one that I am persuaded does not infringe the Constitution.

That was to provide, as my summary of the statute indicates, that neither evolution nor creation be presented as finally established scientific fact and that, when evolution is taught as a theory, the scientific evidence for such competing theories as a “big bang” production of the universe or for the sudden appearance of highly developed forms of life be given equal time (and vice versa). As I noted at the outset, the record contains affidavits—some of them by highly-qualified scientists who there proclaim themselves agnostics and believers in evolution as a theory—which affirm that the above propositions are correct: that evolution is not established fact and that there is strong evidence that life and the universe came about in a different manner, one perhaps less inconsistent with religious doctrine. At the least, these affidavits make a fact issue that those propositions are true. For purposes of reviewing the summary judgment which our panel’s opinion affirms, then, the propositions stated must be taken as established: there are two bona fide views.

It follows that the Louisiana statute requires no more than that neither theory about the origins of life and matter be misrepresented as fact, and that if scientific evidence supporting either view of how these things came about be presented in public schools, that supporting the other must be—so that within the reasonable limits of the curriculum, the subject of origins will be discussed in a balanced manner if it is discussed at all. I see nothing illiberal about such a requirement, nor can I imagine that Galileo or Einstein would have found fault with it. Indeed, so far as I am aware even Ms. O’Hair has never asked for more than equal time.

Let it be conceded, for purposes of argument, that many of those who worked to get this legislation passed did so with a religious motive. It well may be that many who advocated Louisiana’s Sunday closing Law, recently upheld by us, did so from such a motive. There being evident a credible secular purpose for that law, however, we upheld it. Home Depot, Inc. v. Guste, 773 F.2d 616 (1985). There can be no doubt that the Louisiana Legislature was empowered under the state constitution to enact the law in question, one mandating a particular course of public school instruction; the Louisiana Supreme Court has squarely so held, on certification from us earlier in the course of this appeal. Aguillard v. Treen, 440 So.2d 704 (La.1983).

Despite this, our panel struck the statute down.

THE PANEL OPINION

The panel’s reasoning is simple. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1972), sets three hurdles before any statute attacked as establishing religion. The panel holds that the Louisiana statute trips over the first, which requires that “the statute must have a secular legislative purpose; . . . .” Lemon, supra, at 612, 91 S. Ct. at 2111. I cannot agree.

The panel opinion chiefly rests upon such Supreme Court authorities as Lemon (state aid to church schools), Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 L.Ed.2d 199 (1980) (posting Ten Commandments in every classroom), and Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L.Ed.2d 29 (1985) (moment of silence for “meditation or voluntary prayer”), as well as on such holdings from our own court as Lubbock Civil Liberties Union v. Lubbock I.S.D., 669 F.2d 1038 (5th Cir. 1982) (religious meetings on school property) and Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981) (classroom prayer). Such authorities treat [] statutes having a direct and clear religious connection, either by way of granting public assistance to religious schools or by requiring or permitting religious activities in public ones. The statute which concerns us today is quite different: it has no direct religious reference whatever and merely requires that the whole scientific truth be taught on the subject if any is.

In order to invalidate it as “establishing religion,” it was therefore necessary for the panel to look beyond the statute’s words and beyond legislative statements of secular purpose. To strike the statute down, the panel draws upon its visceral knowledge regarding what must have motivated the legislators. It sifts their hearts and minds, divines their motive for requiring that truth be taught, and strikes down the law that requires it. This approach effectually makes a farce of the judicial exercise of discerning legislative intent. The task is admittedly a most difficult and often impossible one, since legislatures are not known for providing clear guidance to those interpreting their works; but it is a task constitutionally required. To disregard so completely the existing manifestations of intent and impose instead one’s personal, subjective ideas as to what must have been the true sentiment of the Louisiana legislature ignores this constitutional restraint on judicial power.

Moreover, even assuming the panel’s guess about legislative sentiment is right, the infirmity of its reasoning becomes immediately evident when it is extended from prescribing what is to be taught to the teaching itself. If it is unconstitutional to require secular matter to be taught from a motive to advance religion it must necessarily also be unconstitutional to teach it from such a motive. If so, a public school teacher so indiscreet as to admit to teaching the evidence for creation science from a motive to advance religion is subject to being silenced, while one teaching exactly the same matter without such a motive cannot be interfered with. Like a clock that strikes 13, a rule that produces such a result as this cannot be sound.

I await with interest the application of this new mode of constitutional analysis to other statutes. The bigamy laws, for example, carry tell-tale indicia of having been passed with a motive to favor the Judeo-Christian religious preference for monogamy, singling it out for adoption over the equally workable Moslem view. Perhaps our court, consulting its intuitive knowledge about what motivates legislators, will presently determine that there can be no secular purpose in such a preferment of one model of the marital relationship over another, especially when the effect of doing so is to espouse the religious doctrine of the two larger religious sects in our country over that of the minority of Moslems. But such intriguing possibilities must await another day, and I return to the case in hand.

I should have thought that requiring the truth to be taught on any subject displayed its own secular warrant, one at the heart of the scientific method itself. Put another way, I am surprised to learn that a state cannot forbid the teaching of half-truths in its public schools, whatever its motive for doing so. Today we strike down a statute balanced and fair on its face because of our perception of the reason why it got the votes to pass: one to prevent the closing of children’s minds to religious doctrine by misrepresenting it as in conflict with established scientific laws. After today, it does not suffice to teach the truth; one must also teach it with the approved motive. It may be that the Constitution forbids a state to require the teaching of lies in the classrooms of its public schools; perhaps among its emanations or penumbras there can be found means to invalidate such a law, say, as one mandating that students be taught that the earth is flat or that chattel slavery never existed in this country. It comes as news to me, however, that the Constitution forbids a state to require the teaching of truth—any truth, for any purpose, and whatever the effect of teaching it may be. Because this is the holding that we endorse today, I decline to join in that endorsement and respectfully dissent.[431]