From Scopes to Dover-19: The Lemon test for the establishment clause

(For previous posts in this series, see here.)

The 1968 Epperson ruling left open the question of what should be done about the teaching of some scientific theory that went clearly went against a religious belief. Wouldn’t allowing the teaching of just that theory without balancing it with the teaching of the religious belief violate the strict neutrality, as required by the 1947 Everson verdict?

The concerns raised by Supreme Court Justices Black and Stewart in Epperson were good ones and it was another case in 1971 Lemon v. Kurtzman, 403 U.S. 602 that, although not dealing directly with the teaching of evolution, led to further clarification of this tricky issue and lay the groundwork for future evolution cases.

The Lemon case arose from two separate laws bundled together. One was passed in Rhode Island that provided “for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion.” The second law was passed in Pennsylvania and authorized “the state Superintendent of Public Instruction to “purchase” certain “secular educational services” from nonpublic schools, directly reimbursing those schools solely for teachers’ salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” “

In overturning both these laws by votes of 8-0 and 8-1, the Court promulgated what is now called the ‘Lemon test’ that says that for any law to pass establishment clause constitutional muster, it must meet a three-pronged test:

First, the statute must have a secular legislative purpose (the ‘purpose’ prong)
Second, its principal or primary effect must be one that neither advances nor inhibits religion (the ‘effect’ prong);
Finally, the statute must not foster “an excessive government entanglement with religion.” (the ‘entanglement” prong)

This set of guidelines tried to address Black’s concerns expressed in the Epperson case by requiring that laws must have a secular purpose and that the primary effect of the law must be religiously neutral. In other words, the intent of the law must be secular and just because some law had the incidental effect of advancing or inhibiting religion did not automatically disqualify it. It also added a third criterion, requiring that the law must not result in the government getting too mixed up in the affairs of religion. The court ruled that the Rhode Island and Pennsylvania policies would result in the state having to have detailed and complicated financial and other dealings with parochial schools, thus violating the entanglement prong.

Thus applying the Lemon test, even if a scientific theory like evolution expressly goes against a religious belief, teaching just that theory and not the opposing religious belief does not violate the neutrality requirement of the establishment clause because teaching science has a clearly secular purpose, since the goal of teaching science is to advance scientific knowledge and not to undermine religion. If religion happens to be undermined because of teaching a particular scientific theory like evolution, that is an incidental, not primary, effect. By contrast, it would be unconstitutional to teach a theory whose primary intent or effect was to undermine religion.

Faced with these strong majorities by the Supreme Court on religion in schools, religious groups who opposed the teaching of evolution and/or wanted to introduce creationist alternatives into the science curriculum tried to find ways to do so that would (a) make creationism scientific (thus meeting the needs of the secular ‘purpose prong’ standard) and (b) be at least neutral in its primary effect (thus meeting the ‘effect prong’ standard).

Such groups felt that these conditions could be met by appealing to the principle of ‘fairness’, that students should be taught both sides of any controversial issue as part of good teaching practice.

As I wrote in Quest for Truth: Scientific Progress and Religious Beliefs (2000, p. 5):

Rather than seek the elimination of the teaching of evolution, a strategy that had not worked earlier, the emphasis now shifted to what was called a “balanced treatment” approach to the teaching of science. Creationists argued that the theory of evolution was just that, a “theory” and not a proven scientific fact. While conceding that this alone did not disqualify it from being taught in schools, they asserted that simple fairness demanded that other theories of life (such as creationism) that also had not been proven should be given equal time in the classroom. Students would then be able to evaluate for themselves which theory made the most sense. Creationists argued that, in addition to meeting the fairness criterion, such a balanced treatment would enhance critical thinking skills in students by encouraging them to think for themselves and make choices, rather than being told what to believe.

An early attempt to adopt this strategy occurred in 1974 in the never-say-die state of Tennessee, which passed yet another law requiring that states give an equal amount of emphasis in their biology textbooks for alternative theories of origins, including the Genesis account.

The law passed by the state said (Section 1) that:

Any biology textbook used for teaching in the public schools, which expresses an opinion of, or relates a theory about origins or creation of man and his world shall be prohibited from being used as a textbook in such system unless it specifically states that it is a theory as to the origin and creation of man and his world and is not represented to be scientific fact. Any textbook so used in the public education system which expresses an opinion or relates to a theory or theories shall give in the same text-book and under the same subject commensurate attention to, and an equal amount of emphasis on, the origins and creation of man and his world as the same is recorded in other theories, including, but not limited to, the Genesis account in the Bible.

Of course requiring the teaching of “other theories” of origins might open the door to all manner of ideas that were undesirable so the legislators added a sentence that said “The teaching of all occult or satanical beliefs of human origin is expressly excluded from this Act.”

The religious writers of this legislation also tried to address another problem in that the use of the Bible in schools might also be excluded under this law since that book obviously contained a ‘theory about origins or creation of man and his world’ and yet did not include other theories. But they thought they had a way out. Since the above restrictions applied only to textbooks, they added another section to the law (Section 2) that said:

[T]he Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work and shall not be required to carry the disclaimer above provided for textbooks.

The law was, of course, promptly challenged and the case Daniel v. Waters went to trial. The problem was that by asking for the specific inclusion of an explicitly religious belief based on the Genesis account of the Bible, they had stepped over the constitutional line. By that time, the Supreme Court had laid down so many fairly clear guidelines for adjudicating such cases that lower courts had little trouble determining that such an explicit appeal to include religious ideas in the public school curriculum violated the establishment clause of the First Amendment

In a 2-1 majority ruling in 1975 striking down the law, the US Sixth Court of Appeals said:

The result of this legislation is a clearly defined preferential position for the Biblical version of creation as opposed to any account of the development of man based on scientific research and reasoning. For a state to seek to enforce such a preference by law is to seek to accomplish the very establishment of religion which the First Amendment to the Constitution of the United States squarely forbids.

The court also argued that the law ruling out the teaching of all “occult or satanical beliefs” would violate the entanglement prong of the Lemon test because it would get the state involved in all kinds of messy theological disputes.

Throughout human history the God of some men has frequently been regarded as the Devil incarnate by men of other religious persuasions. It would be utterly impossible for the Tennessee Textbook Commission to determine which religious theories were “occult” or “satanical” without seeking to resolve the theological arguments which have embroiled and frustrated theologians through the ages.

But the advocates of religion were undeterred by this setback in Tennessee and tried to craft legislation in even more religiously neutral terms, while still seeking to undermine the theory of evolution and advance creationist alternatives. They realized that they had to avoid explicitly religious language or references to the Bible.

Thus was born what became known as ‘creation science’, which consisted of Biblical creationist ideas carefully wrapped in the language of science. That development will be described in the next posting.

POST SCRIPT: Redacted

Brian De Palma’s much praised and anticipated and controversial film Redacted dealing with the Iraq war opens in some cities today and later in others. (Cleveland release date is November 30th at the Cedar Lee)

The film is a fictionalized account of a real incident in which US soldiers in Iraq raped and murdered a 14-year old girl. De Palma takes “a raw, cinema-verite approach what’s essentially a faux documentary, telling the story with the aid of soldiers’ blogs, video diaries and online testimonials — all invented for the film, but based on materials De Palma found online.”

You can listen to a Fresh Air interview with De Palma about the film.

From Scopes to Dover-18: The Epperson opinions

(For previous posts in this series, see here.)

The landmark 1968 Epperson case is interesting for a couple of reasons. The shadow of Scopes influenced the ruling and, although the verdict was unanimous, the differences in reasoning by the various justices influenced the strategies adopted in later attempts to combat the teaching of evolution.

In their opinions giving their different reasons for overturning the statute, Justices Abe Fortas and Hugo Black essentially repeat the debate that had occurred nearly a half-century earlier between Darrow and Bryan. In fact, Fortas resurrected the ghost of the Scopes trial in his opinion, referring to the “sensational publicity” surrounding that trial.

In Fortas’s majority opinion, he took roughly the Darrow position and said:

While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which “aid or oppose” any religion. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma. (my italics)
. . .
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.

Black, however, was uneasy about the reach of the ruling on establishment grounds, preferring to rule it unconstitutional on the grounds of its vagueness, saying: “Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin’s theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process.”

Black seemed sympathetic to Bryan’s point that the people’s right (expressed through the agencies of government) to determine what should be taught in schools should not be dismissed too easily.

It may be, instead, that the people’s motive was merely that it would be best to remove this controversial subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the “motives” behind its passage were improper; it is simply too difficult to determine what those motives were.
. . .
I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, political, or religious subjects that the school’s managers do not want discussed. This Court has said that the rights of free speech, “while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.” . . . I question whether it is absolutely certain, as the Court’s opinion indicates, that “academic freedom” permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him.”

Justice Potter Stewart concurred with Black in agreeing that the statute was unconstitutional on the grounds of vagueness, not because it violated the establishment clause. He also pointed that the rights of states to choose their curricula should not be infringed upon too readily. He also tried to draw a line between the kinds of teaching a state was entitled to determine and what it wasn’t.

The States are most assuredly free “to choose their own curriculums for their own schools.” A State is entirely free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know that other languages are also spoken in the world? I think not.

It is one thing for a State to determine that “the subject of higher mathematics, or astronomy, or biology” shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment and made applicable to the States by the Fourteenth.

The Arkansas Supreme Court has said that the statute before us may or may not be just such a law. The result, as MR. JUSTICE BLACK points out, is that “a teacher cannot know whether he is forbidden to mention Darwin’s theory at all.” Since I believe that no State could constitutionally forbid a teacher “to mention Darwin’s theory at all,” and since Arkansas may, or may not, have done just that, I conclude that the statute before us is so vague as to be invalid under the Fourteenth Amendment.

Hugo Black made some other interesting points about the idea that the theory of evolution was anti-religious. If it were so, then wouldn’t teaching it violate the idea that the state should be neutral in matters of religion?

A second question that arises for me is whether this Court’s decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court’s opinion. (my italics)

Black is making an interesting point here. There is no question that the theory of evolution has serious negative consequences for religious beliefs. In that sense, it is ‘anti-religion’. More generally, suppose a scientific theory contradicts some religious belief. Doesn’t teaching just that theory and not the opposing religious belief contradict the neutrality requirement of the establishment clause? Wouldn’t neutrality require teaching both or omitting both?

Religious apologists who support science try to avoid this dilemma by arguing that scientific truths cannot, almost by definition, be anti-religious. There is only one truth, they argue, and any seeming contradiction between an established scientific theory and religious beliefs must be due to an erroneous interpretation of religion. This is what those who argue that science and religion are compatible say, dismissing as ‘pure nonsense’, in Black’s words, ‘the views of those who consider evolution an anti-religious doctrine.’

But is it that straightforward? For example, I am convinced that science and religion are incompatible belief systems, and that the more one appreciates the wonder of the scientific viewpoint and the power of methodological naturalism to uncover the truths of the world, the less appeal the supernatural elements of religion have. So is support for the teaching of more and better science necessarily also advocating an anti-religious view and thus violating the neutrality requirement of the establishment clause?

The Epperson case did not need to resolve this particular question and Supreme Court was able to reach a unanimous verdict that the Arkansas law banning the teaching of evolution was unconstitutional while avoiding having to take a position on it. The problem raised by Black was resolved three years later in 1971 in the case of Lemon v. Kutzman that set down the rules by which to judge whether any law violated the establishment clause. That case will be reviewed in the next posting in this series.

POST SCRIPT: Chessboxing?

Is this really a sport?.

Do you ever get the impression that real life is imitating a Monty Python sketch?

From Scopes to Dover-17: Teaching of evolution is back in court

(Note this has been updated)

(For previous posts in this series, see here.)

1968 was a watershed year for attempts to ban the teaching of evolution in schools. The events of that year arose because of the rise of creationist thinking in the 1960s. Influential in the rise of the creationist movement was the publication in 1961 of the book The Genesis Flood by John Whitcomb and Henry M. Morris. This was a 500-page book that tried to make the case that scientific evidence supported a literal interpretation of the Bible, down to a 6,000 year old Earth and Noah’s flood. While Whitcomb was a theologian, Morris had a doctoral degree in hydraulic engineering with minors in geology and mathematics. He later founded in 1970 the Institute for Creation Research to advance these ideas.

These new creationist groups took the Bible very literally, more so than William Jennings Bryan, and in fact they thought that during the Scopes trial Bryan had betrayed Christianity by allowing that the creation days of Genesis may have lasted longer than 24 hours, thus allowing the possibility that universe may have been around for more than 6,000 years. The new creationists were having none of that wishy-washiness. Coupled with their strict literal interpretation of the Bible was the powerful feeling that the teaching of evolution had to be countered.

As I wrote in Quest for Truth: Scientific Progress and Religious Beliefs (2000, p. 4):

Initial challenges to the theory of evolution took the form of demands that schools and textbook publishers acknowledge that Darwinian evolution was “only a theory” and not a scientific “fact,” and hence it should be eliminated from the science curriculum since science was supposed to be only concerned with facts. . . But these initial challenges had only minor success. Schools and teachers could hardly be expected not to say anything at all to students about how life and the universe came to be. Since Darwinian evolution had become accepted by professional scientists as the main organizing principle in understanding the appearance of different life forms, it was inevitable that science textbooks and the training of science teachers would reflect that thinking, albeit in a fairly ad-hoc manner.

The paradox was that despite the near universal teaching (in one form or another) of Darwinian evolution in schools, surveys showed a surprising resistance among the general public to key tenets of the theory, especially the one that said that humans and apes had common ancestors. As recently as 1988, 38% of college students believed that human life originated in the Garden of Eden. Feeling that perhaps the reason for this state of affairs was that evolution was not being taught properly, the scientific community planned and implemented a thoroughgoing reform of biology science texts, culminating in the 1960s with the BSCS (Biological Sciences Curriculum Study) textbook series that had evolutionary ideas as a major theme permeating the texts. In these books, there was no escaping the fact that evolution was seen as the organizing principle in biology with no viable alternative.

The BSCS series was widely adopted by schools; but was perceived by creationists as a direct assault by the scientific community on their religious beliefs and galvanized them into responding.

Part of the thrust towards better science education was due to the shock that the launch of the Sputnik satellite in 1957 created. The sense of panic that accompanied the idea that the US was falling behind the Soviet Union in science and technology no doubt helped policymakers override religious believers. These developments led to the next round of court cases.

Recall that even as late as the 1960s, the 1925 Butler Act prohibiting the teaching of evolution was still technically on the books in Tennessee as being constitutional although in the wake of the Scopes trial nobody had enforced it. Texas and Louisiana had also passed laws prohibiting any mention of evolution in textbooks that were approved by the state. ((Summer for the Gods, Edward J. Larson, 1997, p. 221)

In 1928, Arkansas (like Tennessee in 1925) had passed a law by popular referendum that made it unlawful for a teacher in any state supported school or university to teach or to use a textbook that teaches “that mankind ascended or descended from a lower order of animals.” This law, like the Butler Act after Scopes, was also never enforced until 1965 when the state adopted the BSCS textbooks that emphasized evolution. But since the law banning the teaching of evolution was still on the books and since the new textbooks explicitly required the teaching of evolution, the state teacher’s organization saw the opportunity to put the law to the test and challenged it using, as in Scopes, another young biology teacher (Susan Epperson) as the key player, this time as the lead plaintiff challenging the validity of the law, rather than as someone accused of breaking the law.

The trial judge ruled in favor of Epperson and overturned the law on the grounds that it unconstitutionally limited the teacher’s freedom to teach about theories of origins. The state appealed and the Arkansas Supreme Court overruled the trial judge saying that the Arkansas law was a valid exercise of the State’s power to specify the curriculum in public schools.

(As a footnote, as the Arkansas case worked its way up to the Supreme Court, in Tennessee another teacher Gary Scott was threatening to take similar legal action against the Butler Act. This case was initiated in 1967 and coming along at the same time as the release of the memoirs of Scopes, had the potential to make Tennessee the laughing stock of the nation again. This put pressure on the state legislature and in 1967 they finally decided to repeal the Butler Act, bringing that particular chapter of the religion-evolution wars to a close, although other battles would continue.)

So after the passage of more than four decades, the Epperson case achieved what the Scopes case had aspired to do but had failed: be a test case on basic First Amendment issues to be adjudicated by the US Supreme Court. When the Epperson v. Arkansas case finally reached the US Supreme Court in 1968, the court unanimously ruled that the statute effectively banning the teaching of evolution was unconstitutional. But the court but did not agree on the reasons for doing so. Most initially wanted to overturn it on the grounds that the statute was too vague rather than that it violated the establishment clause, but in the end Justice Abe Fortas wrote the majority opinion saying that it was indeed a First Amendment establishment clause violation.

In the summary of the ruling on Epperson v. Arkansas 393 US 97, it states among other things:

“(b) The sole reason for the Arkansas law is that a particular religious group considers the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis. . .

(c) The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. . .

(d) A State’s right to prescribe the public school curriculum does not include the right to prohibit teaching a scientific theory or doctrine for reasons that run counter to the principles of the First Amendment.. . .(my italics)

(e) The Arkansas law is not a manifestation of religious neutrality.”

Note that in the italicized section, the court rejects simple majoritarian thinking, saying that constitutional restrictions limit the power of school boards to completely prescribe the curriculum.

But while the 1968 Epperson ruling was a clear victory for the teaching of evolution and provided the definitive answer that the 1925 Scopes case had sought and failed to deliver, the opinions of the various judges provides some interesting perspectives and arguments that are worth reviewing, and will be the subject of the next post.

POST SCRIPT: Teasing telemarketers

Telemarketers are annoying but I also feel sorry for them because it must be a really awful job. I do not give them a hard time, instead politely terminating the conversation quickly. But someone named Tom Mabe decided to have some fun at the expense of a telemarketer.

From Scopes to Dover-16: The rise of creationist thinking

(For previous posts in this series, see here.)

In the 1962 Engel case, the Supreme Court had ruled that having students say a state-drafted ‘official’ prayer, however generic, was an unconstitutional violation of the establishment clause. But this left open the constitutionality of ‘spontaneous’ prayers not written by the state. Soon after in 1963, a new case addressed this very issue in School District of Abington Township, Pennsylvania v. Schempp 374 U.S. 203.

These were really two cases taken together. In one (Abington v. Schempp), the state of Pennsylvania had passed a law that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.”

It was the other companion case (Murray v. Curlett) that received the greatest amount of publicity because it was brought by the prominent atheist Madalyn Murray (later Madalyn Murray O’Hair). This involved a challenge to a 1905 Maryland law that required starting the school day with a reading, without comment, of a passage from the Bible and/or saying the Lord’s Prayer. Parents who objected to the practice could, however, request that their children be excused from this exercise.

The US Supreme Court overturned both policies, ruling that “no state law or school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in the public schools of a State at the beginning of each school day.”

In its majority opinion (which included Justice Black), Justice Clark disputed the claim that keeping religion out of schools was equivalent to fostering another religion, that of “secularism”. This was something that William Jennings Bryan had argued at the time of the Scopes trial and which one still hears today.

It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools. We agree, of course, that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion. (my italics)

None of the Supreme Court decisions discussed so far in this series of posts dealt directly with the teaching of evolution as such, and there still was no precedent dealing specifically with that particular topic. But all these cases set the stage on which the re-emergence of controversies over the teaching of evolution would be adjudicated, starting in the mid-1960s.

In the forty years that had passed since the Scopes trial, opposition to the teaching of evolution had remained strong and anti-evolution laws such as Tennessee’s Butler Act still remained on the books, as was a similar law passed in 1928 in neighboring Arkansas. Neither law had been enforced, presumably because of the negative publicity generated by the Scopes trial. But that period of dormancy was soon to end. As we will see, three states Tennessee, Arkansas, and Louisiana (the ‘Axis of Weevils’?) played central roles in the renewed legislative efforts to combat the teaching of evolution in public schools.

As I wrote in Quest for Truth: Scientific Progress and Religion Beliefs (Chapter 1, 2000), popular support for teaching a Bible-based creation model was by no means eliminated by the adverse publicity generated by the Scopes case, and the 1960s saw a dramatic resurgence in creationist views, as well as a shift in their emphasis. Ironically, . . .the newer version, now bearing the name of ‘creation science’, was even less accommodating of mainstream scientific views than the creationist views advocated by William Jennings Bryan during the Scopes trial. As creation science gained popularity, it was accompanied by attempts to displace evolutionary theory from its dominant position within the educational system as the explanation for the origin of life. The main arenas for these battles were local school districts, and primarily involved the selection of textbooks. Textbook publishers, wary of losing lucrative markets, were under increasing pressure to either eliminate Darwinian evolution theory entirely from textbooks or to tone down its claims to success and offer alternative, implicitly creationist, versions as well. It was inevitable that the conflict would sooner or later spill over in the legal arena again.

In 1968, the issue of whether schools could ban the teaching of evolution, the issue that had riveted the nation when Darrow and Bryan argued it in Dayton Tennessee in 1925, finally reached the US Supreme Court. It arose out of a law similar to the Butler Act, but passed in neighboring Arkansas in 1928. This time, the case involved the use of textbooks that included the theory of evolution.

POST SCRIPT: It’s Magic Man!

In order to get ready for the two-hour special documentary on the Dover trial called Judgment Day: Intelligent Design on trial scheduled for tonight (Tuesday, November 13, 2007) at 8:00pm EST (check your local PBS station for exact dates and times), watch comedian Robin Ince perfectly summarize the difference between intelligent design creationism and science.

From Scopes to Dover-15: Religion gets edged out of schools even more

(For previous posts in this series, see here.)

In the previous posts, we saw that by the first half of the twentieth century, the idea of the separation of church and state had taken such hold in the country that most religion-based practices had been taken out of the schools, although a few practices still remained. As religious groups tried to get more religion back into the schools, these various efforts led to more court cases.

The next major religion in schools case came in 1948, the year following the landmark Everson ruling, as a result of the growing practice of public schools granting ‘release time’ for the teaching of religion. This practice arose because some parents felt that relegating religious instruction to just the weekends to be done by private individuals or priests diminished the importance of religion in the eyes of children when compared to the secular curriculum taught as part of the regular school day. So they requested and received permission from schools to use part of the school day to teach religion, although the details of implementation varied from place to place.

In the case McCollum v. Board of Education (333 U.S. 203), a parent challenged the release time policy of the local public schools, whereby thirty to forty five minutes were set aside each week for teachers of religion, paid by a private consortium of religious organizations, to come to the schools to provide religious instruction to students whose parents had consented to have them attend. Children whose parents did not want such instruction for their children had to leave their classrooms and go to other parts of the building for secular studies. One such parent challenged the practice and the case went all the way to the US Supreme Court.

The Supreme Court in an 8-1 decision ruled that this practice was unconstitutional and effectively barred all religious instruction within public schools. Citing the Everson guidelines, Justice Black in his majority ruling struck down this policy saying that this use of the public school building and time to further religious education:

is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.
. . .
For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.

Here not only are the State’s tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State’s compulsory public school machinery. This is not separation of Church and State.

1952 saw a variant of the McCollum case Zorach v. Clauson, 343 U.S. 306, in which schools would authorize students during school hours, on written requests of their parents, to leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises. In this case, the US Supreme Court ruled in a split decision that this practice did not violate the establishment clause.

The next major case that resulted in further separation of religion and schools was in 1962 in Engel v. Vitale 370 U.S. 421. The New York state Board of Regents had adopted a policy whereby each class had to begin each day by saying aloud in the presence of the teacher the following prayer: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

Ten parents filed an objection to this so-called Regent’s Prayer. The US Supreme Court struck down the policy saying that having such governmental composed prayers, even if every student were not compelled to say it aloud, was unconstitutional. The ruling said that “state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day — even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited.”

Justice Hugo Black was again the author of this majority 6-1 opinion, and in it he said that: “The respondents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is “nondenominational” and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer, but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s constitutional defects. . . When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”

He drew upon history arguing that this kind of state-sponsored religion was precisely what the early colonialists had tried to escape in Europe and he deplored the tendency of people who oppose acts when they are in the minority singing a different tune when they become the majority. “It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.. . .It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies.”

Black rejected the argument that prohibiting practices such as this was demonstrating hostility to religion. He said that the founding fathers were instead trying to avoid the pitfalls that inevitably ensue when religion and the state get entangled, saying that they had “well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to.”

Next: All prayer and Bible reading in schools is ruled unconstitutional

POST SCRIPT: Dover trial on Nova

The PBS show Nova is having a two-hour special documentary on the Dover trial called Judgment Day: Intelligent Design on trial, which is what my current series of posts is leading up to. If I was better organized, or not as long-winded, my series would have started earlier and my final posts, which deal with this trial would have coincided with the broadcast. Oh, well,…

The show is scheduled to be broadcast tomorrow (Tuesday, November 13, 2007) at 8:00pm EST but check your local PBS station for exact dates and times.

Here is a preview of the program

There is also a companion website.

From Scopes to Dover-14: Religion gets edged out of the schools

(For previous posts in this series, see here.)

Following their failure to have the separation of church and state incorporated as an amendment into the US constitution, proponents of separation in the late 19th century then shifted strategy, urging changes in state constitutions and arguing that the federal constitution had implicitly advocated separation all along and that what was necessary was a reinterpretation of its key clauses. A broad coalition of forces – including Baptists, Jews, atheists, Masons, the Ku Klux Klan – supported this idea, some to prevent the encroachment into government by particular religious sects (especially Catholics), others because they really did want all religion out of government institutions. (Separation of Church and State (2002), Philip Hamburger, p. 481) Thus the idea of the separation of church and state, although not explicitly stated in the federal constitution, became widely accepted as a basic underlying principle of the country.

Because the idea of separation had gained considerable popularity by the time of World War I, state supreme courts in several states had started questioning the practice of Bible reading in public schools (Hamburger, p. 369). Use of the Bible in public schools started decreasing to such an extent that parents started becoming concerned that the public schools were providing too little or no religious instruction at all. A Baptist minister in 1919 put it this way, that the tendency “toward the complete secularization of education . . .had grown out of an overemphasis of our doctrine of separation of religious freedom.” He felt that Baptists “have been so insistent on the separation of church and state that we have almost completely separated education and religion to the serious detriment of both.” (Hamburger, p. 383)

Another Baptist summarized how this situation had come to pass:

Two forces, from opposite sides, have cooperated towards this general secularizing of our education. . .First, the Christian forces insisted on the absolute separation of Church and State, and thought of all religion in terms of church creeds and forms. Hence they set themselves against the teaching of Christianity in schools supported by public funds and controlled by boards of education. At the same time non-Christian influences were exerted by men who, like the churchmen, identified religion with the creeds of organized churches and felt that the churches would produce friction and confusion in the schools, would lay a hindering hand on freedom of thought and investigation. Thus the two operated together to eliminate religion from our education.” (Hamburger, p. 383)

This was the climate in which the Scopes trial took place in 1925 and explains the line of argument pursued by William Jennings Bryan. It was a time when teaching of the Bible had largely disappeared from schools. Rather that trying to directly challenge the by-then accepted idea of separation of church and state and reverse the secularization of education that had led to the Bible not being used in public schools, Bryan tried to use the separation idea to his advantage, arguing that evolution was not a scientific fact but an idea based on an atheist doctrine, and thus violated the idea of separation. This line of argument, that the theory of evolution is less a scientific theory than an atheist inspired belief structure akin to a religion, is still widely heard today.

To understand the legal developments after Scopes, recall that prior to 1925, the First Amendment was seen to apply restrictions only on the powers of the federal government. It was the 1925 Gitlow case that expanded the ‘free speech’ and ‘free press’ clauses to state and local governments by incorporating them under the Fourteenth Amendment.

Then in 1940, in the case Cantwell v. Connecticut, 310 U.S. 296, the right of Jehovah’s Witnesses to spread their message on a public street without seeking prior government approval was upheld unanimously by the US Supreme Court with the court agreeing with the Jehovah’s Witnesses that such restrictions violated the ‘free exercise’ of religion clause in the First Amendment, and that this clause was also explicitly applicable to the states under the Fourteenth Amendment. In Cantwell, the court even stated more expansively that “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.. . .The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.”

As the debate over evolution and religion continued after the Scopes trial ended, subsequent court cases can best be understood as being caused by attempts to put at least some religion back into schools by those who felt that separation of church and state had been interpreted too broadly to mean the separation of religion and state.

One key development centered on whether the ‘establishment clause’ was also binding on the states. Although the Supreme Court had stated that it was in the 1940 Cantwell case, only the ‘free exercise clause’ that had really been at issue in that case. The case that definitively settled the ‘establishment clause’ issue was in 1947 in Everson v. Board Of Education (330 U.S. 1).

Everson involved a challenge to the policy of a local school district in New Jersey to reimburse parents for the cost of bus transportation for their children to attend parochial schools. In a close 5-4 decision, the court ruled that doing this did not violate the idea of separation of church and state. The majority ruled that such actions fell into the category of maintaining the general welfare of its citizens and that carrying the idea of separation to such extremes so that no interaction at all could exist between the state and parochial schools might prevent the state from providing even police or fire or other minimal protections and services to those schools.

Writing for the majority, Justice Hugo Black said:

Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. . . Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare. . . Of course, cutting off church schools from these services so separate and so indisputably marked off from the religious function would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.

At first, this ruling was seen as a major constitutional defeat for the principle of separation of church and state and Black, the author of the majority verdict, came in for severe criticism. Black has played an important role in the development of judicial doctrine on church-state relations and his history is interesting.

Black had been a member of the Ku Klux Klan in his native Alabama and had strongly supported its church-state separation policy. Before his elevation to the Supreme Court by Franklin Delano Roosevelt in 1937, Black had been elected to the US Senate from Alabama in 1926 with strong support from the KKK and other groups that saw him as someone who would strengthen that separation. Conversely, his nomination to the Supreme Court had been especially criticized by Catholics who saw him as someone opposed to them. His ruling was thus seen as a let down by those supporters who had rallied to his defense against the Catholics. They viewed his decision as a sop to Catholics, an attempt to deflect charges of being anti-Catholic.

But although his Everson ruling was criticized by advocates of church-state separatism, his ruling actually laid the foundations for subsequent rulings that ever more firmly established the idea that religion and the state should stay separate because it was in the Everson case that the court explicitly ruled that the ‘establishment clause’ protections of the First Amendment were also binding on state and local governments by virtue of the Fourteenth Amendment. (Today virtually every protection in the entire Bill of Rights is assumed to apply also to state and local governments by virtue of the Fourteenth Amendment.)

Even more importantly, Everson case also set general guidelines on what the establishment clause should be taken to mean, and explicitly inserted Jefferson’s ‘wall of separation between church and state’ into its ruling, thus making that famous phrase part of constitutional law for the first time. Writing for the court, Justice Hugo Black wrote what has since become a major part of the framework for interpreting the establishment clause:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause … was intended to erect “a wall of separation between church and State.”

As Larson points out (Summer for the Gods, Edward J. Larson, 1997, p. 249), after Everson, “the Court quickly began purging well-entrenched religious practices and influences from state-supported schools.” The precedent set in this case rapidly led to a whole series of Supreme Court decisions, several of them authored by Black, creating greater distance between religion and state, and especially removing religion from schools.

Hamburger suggests (p. 462) that Black was well aware that this would happen and that his Everson ruling that seemingly favored the interests of parochial Catholic schools was a shrewd move on his part, giving a small victory to parochial schools and thus mollifying those critics who had suspected that he was anti-Catholic because of his Ku Klux Klan past, while at the same time laying the foundation for advancing the idea of separation of church and state which he strongly supported but which Catholics felt was aimed at restricting them.

Next: Religious dominos fall in rapid succession

POST SCRIPT: V for Vendetta

One of my favorite films is <a href=http://www.imdb.com/title/tt0434409/V for Vendetta, in which the key character is based on Guy Fawkes, whose plot to blow up the British parliament is remembered in England every November 5th. Of course, as usual I forgot the anniversary but Norm Nason of Machines Like Us kindly reminded me of the day and sent me a link to a clip from the film where V gives a talk to the British public warning them of how they have been lulled into accepting an authoritarian system. Replace the British Chancellor with George Bush and you will see an almost exact parallel with what is happening in the US now, where a deliberately frightened public trades away its freedoms for a fraudulent sense of safety.

As the film says: People should not be afraid of their governments. Governments should be afraid of their people.

From Scopes to Dover-13: Rising calls for the separation of church and state

(For previous posts in this series, see here.)

At the dawn of the 19th century, while explicit support for specific religious instruction to advance a particular sectarian view was frowned upon, the fact that almost all the colonialists were Protestants meant that much of what we would now view as religious education was seen by them as simply ordinary education. Their view of the purpose of schooling was closely tied with teaching morals and values and these were believed to be religion-based. So while people were cool to the idea of the state supporting specific churches, they did not view a generic Protestant Christian ideology as representing a ‘church’. It was seen as merely the personal beliefs of individuals which just happened to be shared by most people, and thus were ‘natural’.

Since the schools were under local control and thus represented relatively homogeneous groups of Protestants, no challenges emerged to such tacit support for religion in those communities. As Philip Hamburger writes in Separation of Church and State (2002, p. 220), even in New York City, which was more diverse than the rest of the nation, the idea of a generic Protestantism as not being explicitly religious but merely neutral held sway.

Since the early 1820s, when it first acquired authority to distribute public school funds, New York’s City Council had denied such funds to all sectarian institutions, including Baptist, Methodist, and Catholic schools. Instead, it gave most of its funds to the schools run by the Public School Society – a privately operated nondenominational organization. Yet the ostensibly nonsectarian schools of the Public School Society had some broadly Protestant, if not narrowly sectarian, characteristics. One goal of the society was “to inculcate the sublime truths of religion and morality contained in the Holy Scriptures,” and its schools required children to read the King James Bible and to use textbooks in which Catholics were condemned as deceitful, bigoted, and intolerant.

Needless to say, Catholics did not share the view that this was a religiously neutral education, and as the number of Catholics in the city rose due to immigration from Ireland, they started pressing for public funds to create their own schools free of anti-Catholic bias and to teach their own brand of Christianity. But Catholics were widely seen at that time as being too much of a monolithic body, too subservient in their thinking to their priests and the Pope, and thus their allegiance to the new republic was seen as suspect. Some non-Catholics even went to the extent of suggesting that since the Catholic Church seemed to demand great obedience from its parishioners, such people had ceased to be independent thinkers and were thus not even worthy of being allowed to vote in a democracy. (Hamburger, p. 234-246)

Of course, when it was pointed out that the Public School Society still required students to read the Bible and other religious materials and thus could hardly claim to be religiously neutral, it “defended its position that its publicly supported schools were nonsectarian by offering to black out the most bigoted anti-Catholic references in the textbooks. It refused, however, to withdraw the King James Bible, which, although Protestant, no longer seemed to belong to any church.” (Hamburger, p. 223)

The request by Catholics for funding of their own schools was opposed as leading to an alliance of church and state. In fact it was to deny the demands by Catholics for the funding of their own schools that led to the idea of separation of church and state gaining popularity. Up to that point, people had largely viewed the founding principle of the country, as enshrined in its constitution and associated documents, as prohibiting a union of the state with an organized church. The idea of the separation of church and state was an idea contained in a letter that Thomas Jefferson wrote in 1802 to a committee of the Danbury Baptist Association in which he said: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” (Hamburger, p. 1)

The latter view (creating a separation of church and state) was a much stronger statement than the former (preventing a union of church and state) and it started gaining ground in the mid-19th century onwards mainly as an argument to prevent Catholics from gaining funding for their own denominational schools.

This idea of separation (as opposed to preventing union) gained further ground when Pope Gregory XVI, in an encyclical published in 1832, condemned the doctrine of separation of church and state. This move backfired because it increased the fears of Protestants in America that the Catholics were seeking to eventually dominate the US, and thus increased support for the doctrine of separation of church and state as a way of limiting the ambition of Catholics. As I said before, the various Protestant sects could embrace this separation doctrine because they did not see themselves as acting as a single “church” but as individuals who happened to share a broad Protestant ethic. They thus excluded themselves from the ‘sectarian’ label and saw the separation of church and state as a way of maintaining the status quo.

Like so many other Protestants, Baptists desired to exclude any particular church from public institutions but welcomed Bible reading and other elements of Protestant religion, which seemed to be the faith of free individuals. In the 1870s, for example, although some Baptists protested the introduction of the Bible into public schools and argued that “the state had no right to teach religion,” most Baptists saw no reason to go so far. As one Baptist, George C. Lorimer, explained in 1877: “The position of the Bible in the schools is not the result of any union between Protestants and the State; nor was it secured by the political action of one denomination, or of all combined. The Church, as such, did not put it there, and the Church, as such, cannot take it away. Instead, the “people” put the Bible in the schools.” (Hamburger, p. 283-284)

So even as the idea of the separation of church and state was gaining popularity, it was not initially seen as a call for the separation of Christianity and the state. As is usually the case when a belief structure is ubiquitous, its adherents tend to see it as ‘normal’ and ‘natural’ and ‘obviously’ true, and not merely one of a spectrum of possible views.

But as the idea of separation of church and state became more widely accepted, it was inevitable that people, especially those who did not share these common beliefs, would see the benefits of extending that concept to mean that there should be a complete separation of religion (including Protestant Christianity) and the state. As Hamburger points out, initial calls for this stronger separation took the form of arguing that this was what the Founding Fathers had desired but not explicitly provided for in the constitution, and thus there were calls for a constitutional amendment to firmly entrench this principle into law.

These calls for a constitutional amendment mandating the separation of church and state gained ground. As part of this drive, there were calls for the abolition of chaplains in publicly supported institutions, prohibiting the use of the Bible (either as a textbook or as a source of religious worship) in public schools, replacing religious judicial oaths with secular affirmations, abolishing tax exemptions for religious institutions, and so on. (Hamburger, p. 302-304) Even President Ulysses S. Grant urged stronger separation when he ran for reelection in 1875, advocating an amendment that would “[d]eclare Church and State forever separate and distinct, but each within its proper sphere.”

In a speech made in 1875 to the Convention of the Army of the Tennessee, Grant said that the country should “Encourage free schools and resolve that not one dollar appropriated for their support shall be appropriated for the support of any sectarian schools. Resolve that neither the state nor the nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the church and state forever separated.”

The separation movement gained ground as members of the various Christian denominations saw it as a means of preventing any particular denomination, particularly Catholics, from gaining supremacy in teaching their particular doctrine to the exclusion of the others. The idea of an amendment to the US constitution implementing stronger separation reached its peak around 1875 but failed to come to fruition, and that plan was eventually abandoned. But it did achieve some results, with Congress passing laws requiring any new state seeking admittance to the union to have clauses in their state constitution mandating the separation of church and state.

Next: A shift in strategy.

POST SCRIPT: Levitation

I sometimes hear from people who have witnessed seemingly paranormal phenomena (such as ‘mind reading’) with their own eyes and are convinced that people with such powers exist. They assert that they would have detected any trickery. I am reminded of what magician James Randi said, that it is really easy to fool people, and the more well educated they are and the more confident such people are of their own smartness, the easier it becomes.

I like magicians. Apart from the fun of watching them do their tricks, such people are a useful reminder of how we must be cautious of taking at face value even the things we “see” with our own eyes unless it is under tightly controlled conditions supervised by people who know the world of trickery and illusions.

Here is Dutch magician Ramana doing a levitation trick.

You can read and see more about Ramana here and here.

Apparently Ramana also does ‘mind reading’.

From Scopes to Dover-12: The history of religion in US public schools

(For previous posts in this series, see here.)

It is interesting to note that in 1925, the attempt that was being made by religious believers was to keep evolution from being taught in the schools because Biblical creation theories had already been eliminated. William Jennings Bryan was essentially arguing for two things: (1) If religion was not to be taught in schools, then neither should evolution; and (2) the community of taxpayers had the right to decide what children should be taught in schools. Bryan was arguing for the state to be allowed to ban the teaching of evolution since public school teachers were already prohibited from presenting the biblical view.

Readers might be puzzled by Bryan’s line of argument since the popular view now is that the banning of the teaching of religion from public schools is a late 20th century phenomenon coinciding with the rise of secularism, and that in earlier times public education was riddled with religious teaching, which was why the teaching of evolution was opposed. But the history of religious instruction in US public schools is more complicated.

In order to understand the real status of religious education in schools that led up to the Scopes trial, we need to go back to the early days of the founding of the republic. US Supreme Court Justice Felix Frankfurter in his concurring opinion in the 1948 case McCollum v. Board of Education, 333 U.S. 203 gives a nice history of the role of religion in schools. (By a curious coincidence, Frankfurter, then at Harvard Law School, was one of the people who worked with the ACLU on strategy for the Scopes case.) It was in the McCollum case that religious instruction in public schools was first explicitly ruled to be unconstitutional under the US constitution.

As Frankfurter pointed out, the original purpose of education was religious education.

Traditionally, organized education in the Western world was Church education. It could hardly be otherwise when the education of children was primarily study of the Word and the ways of God. Even in the Protestant countries, where there was a less close identification of Church and State, the basis of education was largely the Bible, and its chief purpose inculcation of piety. To the extent that the State intervened, it used its authority to further aims of the Church.

The emigrants who came to these shores brought this view of education with them. Colonial schools certainly. . .started with a religious orientation. When the common problems of the early settlers of the Massachusetts Bay Colony revealed the need for common schools, the object was the defeat of “one chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures.”

But while this broadly religious sentiment was commonly accepted, the early colonialists and drafters of the constitution were also aware, from the history of the countries that they had left behind in Europe, that the close identification of government with any particular religious sect could drive huge wedges between people, and they were uneasy about repeating that history in the US.

In his opinion in the 1947 landmark case Everson v. Board of Education, Justice Hugo Black summarized the abuses that occurred in the early days of the American settlers and which led to the inclusion of the establishment and free exercise clauses in the First Amendment.

These practices of the old world were transplanted to, and began to thrive in, the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old-world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters.

These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights’ provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.

What people were concerned about was not the teaching of religious ideas per se or even teaching the Bible, but the influence of any specific religious institution (a ‘church’) in schools. So they tended to oppose any formal links of government with religion.

To give a flavor for the kinds of debate going on at the time, consider James Madison’s famous 1785 document called the Memorial and Remonstrance Against Religious Assessments which he wrote in opposition to a bill, introduced into the General Assembly of Virginia, that was designed to levy a tax to support the hiring of teachers of religion in the schools.

In his remonstrance, Madison presciently pointed out that although at any time all the people might believe in the same religion and thus feel that there is no problem with the state supporting it, once state support of religion was allowed it would not take much for narrower and narrower sectarian interests to jockey for control to give their particular beliefs pride of place at the expense of others. He said:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?. . . Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.. . . [E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.

Partly because of the powerful arguments made by Madison against state support of religion, the bill did not pass and instead the Virginia legislature in 1786 enacted Thomas Jefferson’s Bill for Religious Freedom.

So we see that at the close of the 18th century, Americans, even though they were broadly religious, saw the dangers that a close identification of religion with the state could produce and were thus wary of any formal entanglement of the government with any specific sect or church.

Next: Rising calls for the separation of church and state

POST SCRIPT: Another scene from Soap

Here is an extended scene from Soap which features all the main characters. It takes place in the home of Jessica Tate (Mary Campbell’s sister) just after the funeral of Bert Campbell’s son Peter, who had been murdered.

The “rabbi” in this scene is actually Danny, Mary Campbell’s son, who is in disguise because the mob wants to kill him.

From Scopes to Dover-11: The Scopes verdict appealed

(For previous posts in this series, see here.)

The Scopes ‘monkey trial’ came to an abrupt end on the eighth day, Tuesday, July 21, 1925.

The judge began the day by stopping the questioning of Bryan from continuing and ordered his previous day’s testimony stricken from the record. But the damage had been done since the point of the case, after all, was not to persuade the jury in the room but to score points to a wider nationwide audience. Darrow had exploited his line of questioning of Bryan to gain a major propaganda victory for science, in the full glare of the national media, by showing that religious beliefs like Bryan’s led to an intellectual cul-de-sac.

Following the judge’s ruling on ending Bryan’s testimony, the defense promptly rested its case and Darrow made a brief statement asking the jury to bring in a verdict of guilty. He told them:

As far as this case stands before the jury, the court has told you very plainly that if you think my client taught that man descended from a lower order of animals, you will find him guilty, and you heard the testimony of the boys on that questions and heard read the books, and there is no dispute about the facts. Scopes did not go on the stand, because he could not deny the statements made by the boys. I do not know how you may feel, I am not especially interested in it, but this case and this law will never be decided until it gets to a higher court, and it cannot get to a higher court probably, very well, unless you bring in a verdict.

The defense’s strategy all along had been to argue against the Butler Act on constitutional grounds in the appellate courts, hopefully all the way to the US Supreme Court. In order to have grounds for such an appeal they needed to have Scopes found guilty in the lower court. Since pleading guilty at the outset would not have allowed Scopes to appeal, he had to plead innocent and yet be convicted, which explains the seemingly strange request of a defense counsel asking the jury for a guilty verdict.

But there was an additional benefit by resting the case without presenting a closing statement for the defense and simply asking for a directed verdict of guilty. According to trial rules, the defense not making a closing statement meant that the prosecution could not make one either. The defense was executing a deliberate strategy to prevent the prosecution, especially Bryan, from having the last word and making its own closing statement. So rather than Bryan ending the case with the kind of grand, eloquent, and sweeping speech that The Boy Orator was famous for, the last impression that he left was his dismal performance on the witness stand. Darrow had outmaneuvered Bryan again.

The jury duly complied with Darrow’s request and after just a few minutes deliberation returned with the verdict, finding Scopes guilty. There then occurred a seemingly trivial bit of court business that would result later in the case not having the legal impact that had been sought. The jury said they had not decided on the size of the penalty and judge said he would impose the minimum sentence required by law, which was $100. The chief prosecutor said that he thought that Tennessee law required the jury, not the judge, to set the fine, but the judge said it was his understanding that as long as it was just the minimum fine, he could set it. All sides agreed to go along with this.

The case ended with both sides claiming victory, the prosecution getting a guilty verdict, the defense claiming that they showed the superiority of science over religion.

As epilogues to this part of the story, William Jennings Bryan died in his sleep just five days later, his death so soon after the grilling by Darrow giving him the air of a martyr and recapturing some of the momentum that the antievolution movement had lost because of the trial. Scopes accepted a scholarship offer to the University of Chicago and became a petroleum engineer. For most of the rest of his life he avoided the limelight and passed up speaking offers. Dayton, Tennessee returned to being a sleepy little town.

The case now went to appeal to the Tennessee Supreme Court. Many people on the defense side, including the ACLU, tried to have Darrow removed from the defense team for the appeal since they wanted the appeal to focus on the issue of free speech and feared that Darrow’s strong antipathy to religion would result in the religion issue dominating once again. But Darrow and his allies outmaneuvered them and he stayed on.

The Tennessee Supreme Court heard oral arguments in May 1926. There were many briefs filed on both sides, the state again arguing the majoritarian view that what the elected representatives decided was binding whatever its merits, basing its argument on a recent US Supreme Court judgment that had upheld compulsory school vaccinations because of the public good. The case for the state said, “What the public believes is for the common welfare must be accepted as tending to promote the common welfare whether it does in fact or not.” (Summer for the Gods, Edward J. Larson, 1997, p. 214) The state also argued that the Butler Act was not meant to promote any sectarian religious belief but instead was designed to level the playing field in education, that since the Bible could not be taught in public schools, anti-Biblical theories should also not be taught. They asserted that those challenging the statute were doing so to advance atheistic views and referred to Darrow’s well-known opposition to religion to support their case.

The defense countered that “this theory would absolutely nullify constitutional government and inaugurate the dictatorship of the majority.” In oral arguments, defense counsel Arthur Garfield Hays said that the Fourteenth Amendment to the US Constitution prevented the state from enforcing unreasonable laws and “Tennessee’s “absurd” antievolution statute violated this standard as much as a law against teaching Copernican astronomy would.” (Larson, p. 215)

Darrow argued a point that has continued to be debated to this day, that the anti-evolution statute in question was not designed to foster neutrality in education but that opposition to the theory of evolution essentially sprang from a religious foundation that was hostile to science, and thus any attempt to suppress its teaching was an attempt to advance religious views at the expense of science, and that this went counter to the purposes of public schools.

Even while the appeal was being made, the defense expected that the Tennessee Supreme Court would uphold the lower court conviction, and set about planning the appeal to the US Supreme Court, which is where they hoped to win the case on free speech grounds and thus advance individual liberties.

But in a surprise maneuver, the Tennessee Supreme Court did something that prevented the defense team from achieving its goal of having the Scopes trial serve as the first major victory for the ACLU in defense of free speech. In its ruling, the court first upheld the constitutionality of the state law saying that the Butler Act did not give any preference to any religion since it did not require teachers to teach anything specific. But it then overturned Scopes’ conviction on a technicality that neither side had raised in the appeal or objected to in the original trial, and that was that according to Tennessee law, the fine of $100 levied on Scopes should have been set by the jury and not the judge.

Since Scopes was now unexpectedly a man with no conviction against him, no further appeal was possible and this particular constitutional challenge ended with a whimper and not a bang, with no constitutional principle established. The issue of whether it was constitutional to ban the teaching of evolution in public schools was not resolved for another four decades, when the US Supreme Court ruled in the 1968 case of Epperson v. Arkansas, to be discussed later.

In fact, the Butler Act stayed officially on the Tennessee books, but not enforced, until 1967, when the threat of legal action was raised by another biology teacher. The state legislature then decided that having Tennessee associated with one Scopes-like spectacle was enough and the Act was finally repealed.

But while the Scopes trial did not set a legal precedent, the publicity surrounding it and the play and film depicting it ensured that ever since then it is never far from the minds of people who have had to grapple with the teaching of evolution in schools.

Next: The historical role of religion in US public schools

POST SCRIPT: Bob’s amazing mind reading ability

In a previous post, I described the funny TV sitcom from the 70’s called Soap. Bert’s son Chuck treated his even-present ventriloquist dummy Bob like he was real and eventually so did some of the others. Here is a clip from the show. Look at Bert’s wife Mary. She does not say much but Cathryn Damon was superb in the way she used facial expressions for comedic effect.

From Scopes to Dover-10: And on the seventh day, no one rested

(For previous posts in this series, see here.)

In the Genesis account of creation, after six days spent in creating the universe, god rested on the seventh day. But in the Scopes trial, day seven (Monday, July 20) was when the fireworks occurred.

The written testimony prepared by experts over the weekend was accepted into the record, along with a two-hour reading of excerpts by defense counsel Arthur Garfield Hays. All of this was kept from the jury. It was then that the surprise event occurred that forever after defined the Scopes trial. Darrow said that he would call the prosecutor William Jennings Bryan as a (hostile) witness for the defense in the afternoon. Although the rest of the prosecution team saw no good coming from this and objected, Bryan relished the opportunity to have a verbal duel with Darrow, to fight for Christianity against the militant agnostic, and he said he would testify, provided he could put the defense team on the stand as well.

Finally, the clash of titans the entire nation following the trial had been waiting for occurred. When word got around of what was going to happen that day after lunch, huge crowds gathered to see the spectacle and the judge had to order that the trial be moved outdoors to accommodate the crowd, partly because of the sweltering heat indoors and partly because he feared the floor would collapse under their weight. Bryan took the stand for the defense on Monday afternoon and the rest, as they say, is history.

Bryan’s testimony did not go well. While Bryan could hold his own in grand debates over the big ideas of evolution and religion, the constraints of being a witness in a court case worked against him because the scope of his responses was limited by the questions that Darrow chose to ask. In his questioning, Darrow did not allow Bryan to make sweeping statements on the nature of science, humans, god, the soul, and evolution. Instead Darrow pressed him on very narrowly focused questions based on specific assertions made in the Bible: Did Jonah actually live in the whale for three days? How could Joshua lengthen the day by ‘stopping the Sun’ when it is the Earth that rotates about its axis? When did the great flood occur? How old is the Earth? Do you believe the first woman was Eve? Do you believe she was made from Adam’s rib? If the serpent in the Garden of Eden was compelled to crawl on its belly as punishment for tempting Adam and Eve, how did it move about before that? Did it walk on its tail? Where did Cain get his wife? (For a fascinating transcript of the questions and answers, see here.)

None of these questions had anything to do with human evolution but challenged Bryan on Biblical literalism and put him in a quandary. If Bryan stuck to the literal truth of the Bible in every detail, Darrow could make him look ridiculous by showing him to be completely out of touch with modern ideas, a prisoner of medieval thinking, thus discrediting the entire fundamentalist movement. If Bryan denied the literal truth and allowed for interpretation of at least some parts of the Bible as metaphors, then he weakened the prosecution’s case since the defense was arguing that the law only forbade teaching “any theory that denies the story of the Divine Creation of man as taught in the Bible”. Since other modernist theologians had said that the Bible could be interpreted so that it was compatible with evolution, the defense could argue that Scopes had not violated the law since there was no way of saying for certain what the Bible was saying about creation.

Modernist theologians and religious scientists who opposed Bryan’s crusade against evolution have criticized Darrow’s line of questioning because it was based on old-fashioned views of Christianity and merely designed to make Bryan look foolish, and that if Darrow wanted to explore the important philosophical issues in the evolution-religion debate, he should have based his questions on a more sophisticated understanding of the Bible. But I think that Darrow, canny and experienced trial lawyer that he was, knew exactly what he was doing. He had zeroed in on the weakest point of his opponent. He must have known that religion is at its strongest when it is making grand sweeping statements on the nature of life and the universe, because those are vague and hard to pin down. It is at its weakest when trying to explain concrete details. (See here and here for previous postings on this where I elaborate on the difficulties that religion has in explaining details.)

Under Darrow’s questioning, Bryan faced the same problem that religious people have to this day. It is easy to proclaim faith in grand beliefs but when applied to things like Noah’s Flood or Jonah or a woman being created from Adam’s rib, it becomes harder to explain how such things could possibly be literally true and if not, why you believe some things in the Bible and not others. As Darrow said later, his strategy was meant to force Bryan to “choose between crude beliefs and the common intelligence of modern times. . . or to admit ignorance.” (Summer for the Gods, Edward J. Larson, 1997, p. 188)

If the trial took place with today’s knowledge, Darrow might have asked additional questions like: If Jesus was a man born of a virgin, from where did he get his Y-chromosome? Whose genetic information was contained in it? How did Mary’s egg get fertilized? If life begins at conception as some claim, does the human soul enter that very first fertilized cell? When that first cell divides into two, what happens to the soul in it? Does it stay within the first cell, does it split in two also, does it double, or does it somehow straddle the two cells? Since the majority of human embryos spontaneously abort, why does god cause that to happen? What happens to their souls and why did god bother to give them souls in the first place if he knew he was going to abort them later? And so on.

Confronted with Darrow’s relentless questioning that focused on such very narrow questions of fact, Bryan chose the option of ignorance, saying that he was not interested in finding answers to the questions posed by Darrow, and thus could not answer them, although he believed that for god all things were possible, and that answers would be forthcoming some day. In other words, he resorted to that faithful old religious standby, the ‘mysterious ways clause.’ But since he had agreed at the beginning of his testimony that he had studied the Bible extensively for fifty years, having to repeatedly claim a lack of curiosity about such obvious questions, and pleading ignorance of scientific facts that were common knowledge, meant that he came across as an incurious know-nothing. This enabled Darrow to suggest that adopting Bryan’s position on teaching would be to condemn students to ignorance, in contrast to science that advocated active curiosity and the search for answers. When Darrow said during his questioning of Bryan that “You insult every man of science and learning in the world because he does [not] believe in your fool religion …I am [examining] you on your fool ideas that no intelligent Christian on earth believes”, he was not making his case to the jury but to the larger world.

The other members of the prosecuting team saw the damage being done by this line of questioning and repeatedly objected but Bryan bravely, and perhaps foolishly, insisted on continuing until the trial adjourned for the day, saying that he did not want to be accused of being afraid to answer questions. He also probably felt that he could repair any damage during his closing statement in the case, where he would have full rein to make the kind of grand arguments in favor of god and the Bible and against evolution that had proven so successful when he gave public speeches.

But as we will see in the next posting in this series, Darrow thwarted him there too.

POST SCRIPT: Courtroom climax in Inherit the Wind

Here is a clip of the climactic scene in the film on the Scopes (who was called Cates in the film) trial in which Darrow (Drummond) questions Bryan (Brady) on the witness stand. In order to maintain the intensity, the entire scene was apparently shot in one take. It is a terrific piece of filmmaking.