From Scopes to Dover-30: Looking at the big picture

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

In this final post in this series (Yes, there really is an end!), I want to look at the big picture, to see both how the struggle to oppose the teaching of evolution evolved as a result of legal decisions centered around the establishment clause, and why religious believers have pursued with such vigor this dead-end policy to discredit evolution.

Religious people have always been uncomfortable with the theory of evolution. The extent of this discomfort varies. At one end of this religious spectrum we have those Biblical literalists who want to believe that every single extant species was created specially by god. For these people, the theory of evolution is anathema. Somewhere in the middle of the spectrum are those who willing to accept an interconnected and evolving tree of life, provided that humans are not part of the tree and were somehow miraculously created separately. Such people allow the theory in some areas but arbitrarily exclude it from any part of the origins of humans. At the other end of the religious spectrum are those who accept that humans are also part of the evolutionary tree and have common ancestors with other species but want to reserve some special property for humans (the ‘soul’ for want of a better word) that was created by god using some mysterious means beyond our ken. Such people want to believe that each human being has something special, unique, mystical whose creation and existence cannot be accounted for by the mechanisms of natural selection.

All these people have the fear that lurking in the shadows of Darwinian theory is the fact if you carry the theory of evolution to its natural conclusion, there is absolutely no way of avoiding the conclusion that humans, like every other species of living thing, are entirely the product of the Darwinian mutation and natural selection algorithmic process, and thus we are entirely material objects produced by materialistic mechanisms. God is ruled right out of the picture. William Jennings Bryan correctly saw this way back in 1922 when he wrote “If a man accepts Darwinism, or evolution applied to man, and is consistent, he rejects the miracle and the supernatural as impossible.. . Evolution naturally leads to agnosticism and, if continued, finally to atheism.” (my italics)

So while the form and tactics of the fight against the teaching of evolution has undoubtedly changed from the time of William Jennings Bryan, the one constant feature has been the feeling that the theory of evolution is somehow dangerous to religion and has to be either overthrown or arbitrarily limited in its scope or its teaching balanced with ideas favorable to a god-centered view of life and creation. But all efforts so far to control ‘Darwin’s dangerous idea’ (as Daniel Dennett puts it) have run up against the challenge of the Establishment Clause of the First Amendment of the US constitution and its associated idea of the separation of church and state.

To briefly recapitulate this legal history, as Darwinian ideas gained acceptance at the turn of the twentieth century, it became increasingly taught in schools. Meanwhile, the rise of the ideas of the separation of church and state had resulted, by the time of the Scopes trial in 1925, in much of the teaching of religion and the Bible being eliminated from public schools. Evolution had become seen by then as anti-religious and the first attempts at counteracting its influence took the form of state legislatures passing laws banning its teaching, with the 1925 Butler Act in Tennessee being the first. It was only in 1968, in the case of Epperson v. Arkansas, that such attempts were ruled unconstitutional.

The attempts at mitigating the effects of the teaching of evolution then shifted from outright bans on teaching evolution to trying to achieve ‘balanced treatment’ (whatever that meant) for both evolution and the Genesis theory of creation. But the Tennessee law requiring this was ruled in 1974 to be unconstitutional by the US Court of Appeals in the case of Daniel v. Waters.

The next evolution in the strategy was to call for ‘balanced treatment’ for the teaching of evolution and something called ‘creation science’, the latter being essentially the young-Earth Genesis story, but carefully shorn of any mention of god or the Bible or any religious terminology. Such laws were passed in 1981 in both Arkansas and Louisiana. The Arkansas law was ruled unconstitutional in 1982 in the US District Court in McLean v. Arkansas, and the Louisiana law was ruled unconstitutional by the US Supreme Court in 1987 in the case of Edwards v. Aguillard.

This setback gave rise to the theory of ‘intelligent design creationism’ (IDC), which was carefully crafted to address all the objections raised by these previous legal precedents. Its essential structure was to allege that certain systems in nature (the bacterial flagellum, the blood clotting mechanism, and the human immune system being the only ones that IDC advocates could come up with) were so ‘irreducibly complex’ that evolutionary theory had not only failed so far to provide an adequate explanation for how they could have come into being by the gradual mechanism of natural selection, but that the theory would never be able to explain them. This unsubstantiated assumption allowed IDC advocates to make the inference that these systems were deliberately designed and that hence there must be some ‘designer’ at work. The identity of the designer was deliberately kept unspecified and, like Lord Voldemort in the Harry Potter books, never named openly by IDC advocates, but there was never any doubt that they were referring to their god.

But this latest hope for undermining the teaching of evolution in public schools was dashed by the verdict in 2005 in Kitzmiller v. Dover, where the US District Court ruled that intelligent design was a religious belief and not science, that the reasons for introducing it into the curriculum was to advance a religious agenda, and hence such a policy was unconstitutional.

So the religious forces, having lost the scientific case against evolution (basically because they never had a scientific case to start with, just a religious belief adorned with scientific language), now have pretty much lost the legal case as well. And that is where things stand.

It is interesting that the current legal state of play supports what Clarence Darrow had argued in 1926 in the appeal of the Scopes verdict, when he said that anti-evolution efforts are 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.

It is not clear what other avenues are available to try and resurrect intelligent design creationism as a viable legal strategy. The attempts seem to have now shifted to an exclusively public relations effort by the Discovery Institute, the well-funded organization that has been behind the entire IDC strategy all along. Their attempt to push back against the disaster at Dover is taking many forms.

One facet of this effort is to try and discredit the Dover verdict, arguing that it was due to ‘judicial activism’ and over-reaching by a biased judge with ambitions to greatness. In 2006 they published a book called Traipsing Into Evolution attacking the judge’s verdict and reasoning. (For a detailed critique of this book, see here.)

The charge that Judge Jones who presided in the Dover trial is some kind of anti-religious partisan is hard to sustain since the judge is a Republican and a long-time member of a Lutheran church who was nominated for his post by then-US Senator Rick Santorum (who himself is a strong supported of IDC), was appointed to the bench by President Bush who has argued that ‘both sides’ of the evolution issue (whatever that means) should be taught, and whose assignment to the case was praised by Tom Ridge (former Republican governor of Pennsylvania and the head of the Department of Homeland Security) who said “I can’t imagine a better judge presiding over such an emotionally charged issue.”

The judge himself seemed to anticipate that this kind of attack might occur and preemptively responded to this in his opinion saying:

Those who disagree with this ruling will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. (p. 138)

On another front, in 2007, Michael Behe published yet another book The Edge of Evolution: The Search for the Limits to Darwinism, which tries to resurrect the corpse of IDC by adding a new claim, which turns out to be one that was already tried in the 19th century and failed.

There is also a film Expelled: No Intelligence Allowed that is due to be released on Darwin’s birthday in 2008 that argues that ‘big science’ is deliberately suppressing evidence of intelligent design and persecuting scientists who think there is something in it. It has already been accused of unethical practices in the making of it.

What is conspicuously missing in all these efforts is any actual old-fashioned science. You know, experiments done, data collected, hypotheses formulated, causal mechanisms suggested that can be used to make concrete predictions that can be investigated. This is the kind of detailed, careful, painstaking work that constitutes the bedrock of science. Grand, sweeping, and speculative ideas can be fun for a while but if not supported by that solid foundation, they sink and disappear leaving very little trace.

It seems like now that the pro-IDC people have lost in both the courts and the scientific arena, they are reduced to acting as if they are victims and making pleas for public sympathy, to try and convince people that the scientific and legal establishments have somehow conspired to use their muscle to suppress alternatives to the theory of evolution.

What religious people have not grasped (or perhaps do not want to grasp), is that while scientific theories can overthrow religious beliefs and have done so numerous times in history, the reverse simply does not happen.

Religious beliefs cannot overthrow a scientific theory. What overthrows a scientific theory is a better scientific theory.

In the final analysis, it is as simple as that.

POST SCRIPT: Jon Stewart

A stand-up routine from about ten years ago that is still relevant and funny.

From Scopes to Dover-29: What next for evolution and religion in schools?

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

As a result of the long string of judicial rulings and Supreme Court precedents that have been outlined in this series that seem to have eliminated almost all their options, what can religious people do now about the teaching of evolution?

In 2007, IDC advocate Michael Behe published yet another book The Edge of Evolution: The Search for the Limits to Darwinism (which I have written about earlier) that tries to add a wrinkle to IDC ideas by arguing that the mutations that drive natural selection are not random but are somehow guided by their peripatetic and secretive designer to achieve a desired organism.

This is a pathetically feeble attempt that will not get anywhere legally. All the reasons given in the Dover verdict for why IDC is a religion and not science apply with equal force to this idea too. Furthermore, it is not even an original idea, having been proposed in the late 19th century by eminent scientists, also for manifestly religious reasons, a fact that is not going to help the case legally.

But the opponents of evolution are determined and there are rumblings that Texas may try to get creationism and/or intelligent design creationism and/or criticisms of evolution into their state curriculum. The state’s state science curriculum director has been forced to resign her position and some suspect that this was a prelude to making such changes.

So what options does Texas or any other state body have left?

As I see it, there seem to be only three options left for those trying to undermine the teaching of evolution or otherwise get religion back into the public schools. One is to not single out just evolution for ‘critical analysis’ but include one or two other theories as well, and use them as a cover for the real goal of discrediting evolution. But given the legislative history of opposition to teaching evolution in schools, it is likely that the courts will see through this ruse to circumvent the establishment clause.

Another option is to ask that all scientific theories be subjected to critical analysis. This might pass constitutional muster but would not serve the purpose that religious people seek. It is, after all, what good science teaching has always professed to do and is routinely called for in present day science standards. Religious people seem to have no problem with, for example, the theory of gravity or Newton’s laws of motion or the heliocentric model of the solar system or the laws of photosynthesis and presumably don’t want their children’s time wasted on discussing evidence against those theories or speculate on why those theories too are wrong and the associated processes driven by an intelligent designer. As I have shown earlier, what what really bugs them is evolution.

The third option is to seek what IDC advocate Phillip Johnson seemed to be hinting at, and that is to arouse public opinion against evolution theory, in order to foment some type of popular revolution. We see that in the creation of the documentary Expelled: No Intelligence Allowed to be released on Darwin’s birthday in February 2008. (See Bad Idea Blog for a seven-minute promo for the latter film and a critique of it.) The aim seems to be to portray themselves as victims, oppressed by the scientific and legal establishment. They seem to be advancing the truly bizarre argument that scientists are secretly aware of terrible weaknesses in evolutionary theory and are afraid that the revolutionarily new arguments of the courageous IDC advocates will result in the structure of science crumbling. The only way scientists can prevent this, in their view, is by colluding to cover up the facts, suppressing all dissent, and expelling pro-IDC people from the academy.

In reality of course, scientists are comfortable with the merits of the theory of evolution even though they know it has not answered every question as yet, and reject IDC because it is an old idea that has no content that is of any value or use to scientists.

But even if this policy of painting themselves as poor, pitiful, oppressed victims is successful and arouses some public sympathy, I cannot see any way for this IDC strategy to achieve its ultimate goal of overthrowing the teaching of evolution in schools, since all their previous attempts to do so have run aground on the rocks of the establishment clause of the First Amendment to the US constitution.

The only way that they can succeed, as I see it, is by calling for an overthrow of the establishment clause and undermining the whole idea of separation of church and state. But this is a huge barrier to overcome. The Bill of Rights and the other protections of the constitution have become seen as providing the bedrock protections of American society. As time when on, its protections have been expanded but never formally restricted, although administrations have from time to time curtailed those freedoms by fiat, as we see now with habeas corpus violations and gross violations of due process using the USA PATRIOT Act and the Military Commissions Act. But despite such setbacks for basic liberties and justice, it seems unlikely that an attempt to formally rescind those constitutional freedoms will succeed.

But constitutional issues aside, the important question has always been about who determines what should and should not be taught in public schools.

“Who does have “the right,” [Yale law professor Stephen L. Carter] asked, to decide what gets taught as science in the public schools? Creationist parents and teachers, based on their relatively subjective religious beliefs, or professional scientists and educators, based on their relatively objective scientific theories?” (Summer for the Gods, Edward J. Larson, 1997, p. 260)

This is an interesting question to explore. If a school district decides that it should teach something absurd or even flat out wrong, like the moon is made of cheese, is it allowed to do so? Can a parent complain and have the courts overturn such a policy even though there is no obvious constitutional violation involved? As we saw in the 1982 creation science case McLean v. Arkansas, the judge ruled that creation science should not be taught because it was not science but a religion. Some supporters of the decision criticized the reasoning, saying that the reason creation science should not be taught was not because it had failed to meet unjustifiable demarcation criteria but because it was bad science and simply wrong. But is teaching even manifestly absurd ideas a sufficient reason for the courts to intervene?

In 1926, in oral arguments during the appeal of the Scopes verdict to the Tennessee Supreme Court, defense counsel Arthur Garfield Hays raised the interesting possibility 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). But as far as I know this issue has not been adjudicated.

Although this is an interesting hypothetical exercise, in reality, we may never be able to disentangle the ridiculous from the religious. The only time that people feel strongly about teaching things for which there is no evidence is when they are driven by religious convictions, such as that the Earth is 6,000 years old or that god intervened in the laws of nature to create humans.

Those who argue against teaching creationism and its derivatives in public schools tend to be split into two camps.

One the one hand there are those who think that mainstream religious beliefs are credible and valuable, but think that it is good to keep church and state separate. They argue that religious beliefs do not belong in public schools on constitutional establishment clause grounds.

On the other hand are those who are more sympathetic to Clarence Darrow’s approach in the Scopes trial. He seemed to have a different goal. He set out to argue that religious beliefs were just nonsense and that no sensible person should believe them, let alone want to teach them to their children. After all, no one is asking schools to teach children that the Earth is flat, that the Sun orbits the Earth, or that there are fairies at the bottom of the garden. No legal protections have been necessary (at least not yet) to prevent teachers from teaching that thunder and lightning are symbols of god’s anger with the world or that objects fall to the ground because the Earth is at the center of the universe. When Darrow said in his interrogation of Bryan that “You insult every man of science and learning in the world because he does not believe in your fool religion,” he was trying to make a different point, that if you can show that a belief is silly, then no one would even want to teach that belief. And he felt that fundamentalist religious beliefs were patently ridiculous, requiring people to swallow, without any evidence, the most preposterous of ideas.

As Larson says:

Darrow. . .used his defense of Scopes to challenge fundamentalist beliefs. To the extent that lawyers defending the evolutionist position in later lawsuits appeal narrowly to constitutional interpretation, fundamentalist beliefs remain unchallenged. (p. 261)

Darrow’s basic approach has been extended by modern day scientists and atheists like Richard Dawkins, Sam Harris, and Victor Stenger to argue that even so-called ‘moderate’ religious beliefs are absurd and that it is futile to pretend that the beliefs of mainstream religions have any credibility.

POST SCRIPT: Philosophy panel on progress

The Philosophy Club at Case is having a panel discussion on the topic of progress and I will speak about the nature of progress in science. The program is at 7:30 pm in Guilford Lounge on Wednesday, December 5th, 2007. It is free and open to the public.

From Scopes to Dover-28: Aftershocks of Dover

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

Judge Jones’ ruling in the Dover intelligent design creationism (IDC) case, delivered on December 20, 2005, swiftly reverberated across the nation, the sweep of it knocking down one pro-IDC policy after another like a row of dominos.

On January 17, 2006, a new elective philosophy course in a school in El Tejon, CA that included intelligent design ideas was abruptly cancelled for fears that it would be ruled unconstitutional. The Discovery Institute, battered by Dover, pressured the school district to take this action, concerned, like in Dover, that this was another misguided policy by a local school board that would hurt IDC even more.

In February 2006, Ohio’s State Board of Education reversed its previous policy and ruled 11-4 to throw out the IDC-inspired science standards benchmarks that had called for ‘critical analysis’ of evolution, the majority saying that the Dover verdict meant that such a policy, if challenged, would also be ruled unconstitutional. State school board elections later that year resulted in the most vocal IDC supporter resoundingly losing her seat on the board as well, getting less than 30% of the vote.

What happened in Kansas is also telling. During 2005, riding the crest of a pro-IDC wave, the Kansas State Board of Education, in the teeth of opposition from scientists locally and nationwide, decided to adopt science standards that were laced with pro-IDC language, such as deliberately undermining the credibility of the theory of evolution and going so far to broaden the definition of science to allow for non-material causes for phenomena, so that IDC ideas could be included as science. (I was involved in a minor way in that controversy.) These new standards were passed on November 8, 2005, after the Dover trial had ended but before the verdict was handed down.

But in primary elections held in August 2006 following the verdict, the pro-IDC faction on that state’s school board lost their majority and in the November 2006 election, those who favored science over IDC obtained a narrow 6-4 majority. As a result, on February 13, 2007, the new State Board of Education reversed itself and replaced the old standards with new ones that eliminated the earlier IDC-inspired criticisms of evolutionary theory and required methodological naturalism to be the underlying basis of scientific investigations, thus eliminating non-material causes as explanations for physical phenomena. (Kansas has see-sawed on this issue based on school board election results since 1999 so the story there may not be ended. The standards are not required to be revised again until 2014.)

The El Tejon case mentioned above, although it never went to court, is a good example of the problem that advocates of religion in schools face. After all, in El Tejon they claimed they were merely seeking to teach IDC ideas as part of a purely elective philosophy course, not as science. What harm could there be? The initiators of the course felt that this should be allowable. But the course description immediately raised some problems that should have put on the alert anyone familiar with the legislative history of the establishment clause. The description said:

Philosophy of Intelligent Design: This class will take a close look at evolution as a theory and will discuss the scientific, biological, and Biblical aspects that suggest why Darwin’s philosophy is not rock solid. This class will discuss Intelligent Design as an alternative response to evolution. Topics that will be covered are the age of the earth, a world wide flood, dinosaurs, pre-human fossils, dating methods, DNA, radioisotopes, and geological evidence. Physical and chemical evidence will be presented suggesting the earth is thousands of years old, not billions. The class will include lecture discussions, guest speakers, and videos. The class grade will be based on a position paper in which students will support or refute the theory of evolution.

The problem with this course is that, as Judge Jones pointed out in Kitzmiller v. Dover, all applicable Supreme Court precedents imply that “[T]he Establishment Clause forbids not just the explicit teaching of religion, but any governmental action that endorses or has the primary purpose or effect of advancing religion.” (p. 46)

Judge Jones said in his ruling (p. 137), “Our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school classroom.” But that leaves open the question of whether ID can be taught at all in public schools, as long as it is not contrasted with evolution. Though I am not a lawyer, as I read the law and the precedents there would be no problem under these guidelines about a philosophy course that examined, in a neutral way, the religious beliefs of people. There would be no problem in discussing in a history or social studies or philosophy course the role that Christianity played in the American political process or the role that Islam played in the development of the Middle East or the role of women under various religious belief systems or the way that religious beliefs have influenced philosophical thought. In fact, it would be hard to keep religion out and still teach those topics in a meaningful way.

A problem only arises if you use a course to promote religion in general or a specific religious point of view. Now we see can more clearly why the El Tejon course was problematic. It is not how a course is labeled (whether science or philosophy or history or whatever) that is at issue; it is the purpose of the course and whether it is would seem, to an informed, reasonable observer who is familiar with the history and context of the issue at hand, to endorse a particular religious viewpoint. The El Tejon course was clearly advocating young Earth creationism. And the people at the Discovery Institute (rightly, I think) saw that this would be easily ruled unconstitutional. Since the course, like Dover, again explicitly dragged in IDC ideas, another negative ruling in this case would be interpreted as meaning that IDC ideas should not be allowed even in philosophy classes, which would be a huge public relations setback for them. In addition, they would likely have also been disturbed by the El Tejon school board implying that intelligent design belonged in a philosophy course, since their entire strategy has been to try and argue that it was science.

Where does this leave the question of teaching evolution in schools? The Dover verdict seems to have closed the last small window that remained for inserting IDC ideas into the science curriculum. This setback has led to a feeling of discouragement in the IDC camp. Leading ‘Wedge‘ strategist and founder of the IDC movement Phillip Johnson seemed like he was throwing in the towel in an interview in interview he gave in the Spring 2006 issue of the Berkeley Science Review. In the interview, he essentially conceded that the IDC people had failed to deliver the goods when it came to providing the kinds of evidence and arguments that are necessary to even be considered as science let along succeed in science. It is precisely that combination of evidence and persuasive arguments that has made Darwinian evolutionary theory such a powerhouse in science, comparable in its impact to Newton’s and Einstein’s theories.

Johnson said:

I considered [Dover] a loser from the start. . . Where you have a board writing a statement and telling the teachers to repeat it to the class, I thought that was a very bad idea.
. . .
I also don’t think that there is really a theory of intelligent design at the present time to propose as a comparable alternative to the Darwinian theory, which is, whatever errors it might contain, a fully worked out scheme. There is no intelligent design theory that’s comparable. Working out a positive theory is the job of the scientific people that we have affiliated with the movement. Some of them are quite convinced that it’s doable, but that’s for them to prove. . .No product is ready for competition in the educational world.
. . .
I think the fat lady has sung for any efforts to change the approach in the public schools. . .the courts are just not going to allow it. They never have. The efforts to change things in the public schools generate more powerful opposition than accomplish anything. . .I don’t think that means the end of the issue at all.
. . .
In some respects, I’m almost relieved, and glad. I think the issue is properly settled. It’s clear to me now that the public schools are not going to change their line in my lifetime. (my italics)

So are there any options left for religious people who oppose the teaching of evolution and also want to bring back religion into the public school curriculum?

I’ll examine some possibilities in the next post.

POST SCRIPT: The shadow trick

Teller (of Penn and Teller) does his famous shadow trick. Truly amazing to see.

From Scopes to Dover-27: The Dover verdict

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

The judge who presided in the trial Kitzmiller v. Dover seemed to have a more sophisticated idea of the nature of science than Judge Overton in the 1982 case of McLean v. Arkansas. Judge Jones’s full analysis of how he came to his conclusion that intelligent design was religion and not science (p. 64-89) is well worth reading because it gives an excellent summary of some basic ideas in the history, philosophy, and methodology of science.

Judge Jones based his ruling on arguments similar to those used by Judge Overton in McLean v. Arkansas, in which the latter ruled that creation science was also a religious belief and not science. This aspect of the opinion may end up being the most significant part of the verdict, with devastating consequences for the Discovery Institute’s long-term goal of slowly bringing religion and god back into the schools. The reason that IDC strategists wanted to have their theory considered a science was that then that it would have a better chance of passing the Lemon test for satisfying the establishment clause.
[Read more…]

From Scopes to Dover-26: The Discovery Institute’s dilemma

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

The Dover school board policy was challenged in December 2004 as a violation of the establishment clause and so the two sides prepared to go to trial. The lawsuit for the plaintiffs led by Tammy Kitzmiller was filed by the ACLU of Pennsylvania and included experienced constitutional attorneys from the firm of Pepper Hamilton and from the Americans United for Separation of Church and State.

The lawyers who appeared for the Dover school board were from the Thomas More Law Center based in Ann Arbor, Michigan, which saw itself as a kind of Christian counterweight to the ACLU. The center was created in 1999 by Thomas Monaghan, founder of the Dominos pizza chain and financial backer of conservative Catholic causes. Their website is very direct about its mission: “Our purpose is to be the sword and shield for people of faith, providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square.” They were the ones who urged the Dover school board to adopt their policy, offering to represent them in court if challenged. The fact that the Dover school board had this offer of free legal representation undoubtedly influenced board members in the decision to adopt a policy they knew would be controversial.

But as the Dover case prepared to go to the trial that began on September 26, 2005, it became clear that the More Center lawyers were going to face difficulties. While they were surely earnest in their beliefs in the rightness of their cause, dedicated to fighting for it, religiously gung-ho, and eager to do battle against evolution, they simply did not have the legal resources or expertise or even people to mount the kind of research and sophisticated arguments necessary for such an important case. In addition, they faced a highly sophisticated and well-organized team of constitutional lawyers for the plaintiffs. They seemed to be out of their league.

As we have seen, the Dover school board’s actions went contrary to the long-term strategy of the intelligent design creationism (IDC) movement advanced by the Discovery Institute. But once the die was cast and the Dover policy was adopted and challenged in the courts, the Discovery Institute was placed in a quandary. They could see that the More Center was not fully up to the task facing them but it was not clear how they could help. Should they completely disassociate themselves from the Dover school board actions and distance themselves from the case as it went down to likely defeat? Or should they throw themselves fully into the fray, provide their own expert witnesses, pour their considerable financial and legal resources into the case, and hope to secure victory? While the latter was a better tactical option since it increased the chances of winning this case, it had the considerable strategic downside in that if they still lost the case despite their full participation, then the entire IDC movement, not just the Dover school board, would be perceived as having been defeated, and this would have serious repercussions, even possibly dooming their long-term plans.

It was a difficult choice and they waffled. At first they agreed to be part of the case and to provide lawyers and expert witnesses, but that collaboration turned out to be short-lived and they later withdrew, giving as their reason that the Thomas More Law Center objected to their request to have the Discovery Institute’s own lawyers representing their clients. One serious and negative consequence of the Discovery Institute’s decision to withdraw their expert witnesses at the last minute was that it was now too late for the More Center to get alternative expert witnesses for their side. As a result, the plaintiffs were able put forward their own expert witnesses in science and philosophy and theology to provide testimony on important questions that was not rebutted in court and thus was accepted as fact, seriously weakening the defense’s case.

The whole episode caused bad feelings between the Discovery Institute and the More Center which spilled out into the open, as The Toledo Blade reported on March 20, 2006:

In fact, when Mr. Thompson [the head of the Thomas More Law Center] decided to defend the Dover intelligent design policy, he angered the group most associated with intelligent design: the Discovery Institute, a conservative think-tank based in Seattle.

“We were incredibly frustrated by arrogance and bad legal judgment of goading the [Dover] school district to keep a policy that the main organization supporting intelligent design was opposed to,” says John West, the associate director of the Discovery Institute’s Center for Science and Culture.

The Thomas More Center acted “in the face of opposition from the group that actually represents most of the scientists who work on intelligent design.”

. . .

The Discovery Institute has never advocated the teaching of intelligent design, and told the Dover board to drop its policy, Mr. West says. It participated in the trial only reluctantly.

“We were in a bind,” Mr. West says. “Our ideals were on trial even though it was a policy we didn’t support.”

The More Center’s head Richard Thompson countercharged that all these were just excuses to hide the real reason, which was that the Discovery Institute people were essentially cowards, people who talk a tough game but don’t put their beliefs on the line when it counts:

Mr. Thompson says the Discovery Institute’s strategy is to dodge a fight as soon as one appears imminent.

“The moment there’s a conflict they will back away . . .they come up with some sort of compromise.” But in Dover “they got some school board members that didn’t want compromise.”

This intramural battle between two groups supposedly on the same pro-IDC side did not augur well for the trial.

While the Dover trial did not involve larger-than-life, nationally known and flamboyant personalities like the Scopes trial, or dramatic moments like the questioning of Bryan by Darrow, it did have its comedic moments, such as when IDC theorist Michael Behe, who had advocated broadening the definition of science so that IDC would be included under it, conceded under cross-examination that such a broadened definition would result in astrology too being considered a science. Observers considered that moment a pivotal one in dooming the IDC case.

As almost everyone interested in this subject knows by now, on December 20, 2005 federal US District Court Judge John E. Jones III ruled resoundingly in favor of the plaintiffs and against the Dover school board. Not only did he rule that the Dover school board action was unconstitutional, he was also harsh and unsparing in his criticism of the school board’s actions, saying: “The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.” (p. 138)

The judge said that both the Lemon test, and the reconceptualization of its purpose and effect prongs as an endorsement test by Justice O’Connor, would be applied to determine the constitutionality of the Dover policy.

The history and actions of the Dover school board clearly showed that it had religious motivations in implementing their policy and thus made it easy for the judge to rule against the school board on the grounds that they had failed to meet the purpose prong of the Lemon test and was thus unconstitutional by virtue of that fact alone. In addition, he found that the policy also violated that effect prong and failed the endorsement test.

The judge went further and also ruled on whether IDC was science. The IDC strategists had desperately wanted to avoid having a judicial determination on whether intelligent design was a science and in fact the Discovery Institute had filed an amicus curiae (“friend of the court”) brief explicitly asking him not to rule on the question of the scientific validity of IDC.

But the judge felt that such a determination was proper, justifying this action by saying that the lengthy discussion on this very question in the trial meant that the issue had received a thorough airing and making such a determination was both useful and even essential. He said: “[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.” (p. 63)

The judge ruled that IDC was not a science but a religion.

It is this aspect of the judge’s ruling that is likely to be most damaging to IDC’s future prospects. Because the topic had received such an exhaustive examination during the trial, and because Judge Jones in his opinion had analyzed this question in such detail extending to 25 pages (p. 64-89), it seems likely that any future case involving intelligent design will depend heavily on his opinion and thus have a strong presumption that IDC is a religion. This is what happened with the Supreme Court in the 1987 case of Edwards v. Aguillard, where they depended heavily on the analysis of the nature of creation science that was written by US District Judge Overton in the 1982 case of McLean v. Arkansas.
It is worthwhile examining Judge Jones’s reasoning in his opinion in some detail because although, like the Scopes trial, this case will not reach the Supreme Court, it seems likely to cast a similarly long shadow. This will be done in the next post.

POST SCRIPT: Roy Zimmerman explains Creation Science 101

From Scopes to Dover-25: The Dover policy on teaching evolution

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

I previously showed how that the intelligent design creationism (IDC) strategists had laid out a careful long-term stealth strategy aimed at discrediting the teaching of evolution and breaking through the restrictions placed on religion in the schools because of the establishment clause in the First Amendment. They should have paid heed to Scottish poet Robert Burns who in his poem To a Mouse cautioned those who place too much faith in detailed plans for the future:

The best laid schemes o’ Mice an’ Men, 

Gang aft agley.

[Read more…]

From Scopes to Dover-24: Three trials leading up to Dover

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

While all the strategizing in the wake of the 1987 Edwards v. Aguillard case was being done by the intelligent design creationism (IDC) advocates under the auspices of the Discovery Institute, three other cases all set legal precedents for what would happen in Dover.

In 2000, a case involving religion in schools but not directly involving evolution reached the US Supreme Court. This was Santa Fe Independent School District v. DOE 530 U.S. 290. This was a case where a challenge was made to a policy where the school district had a practice of one student, who had been elected as Santa Fe High School’s student council chaplain, delivering a prayer over the public address system before each home varsity football game.

In a 6-3 ruling, the court ruled that such prayers were unconstitutional. For its ruling, the court relied on an alternative reading of the purpose and effect prongs of the Lemon test that was written by Justice Sandra Day O’Connor in the 1984 case of Lynch v. Donnelly involving the display of a nativity scene by a municipality. O’Connor articulated what is now called the ‘endorsement test’. She said:

The second and more direct infringement [of the establishment clause] is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Writing for the majority in the 2000 Santa Fe case, Justice John Paul Stevens used that same language to overrule the policy of student-led prayer at football games:

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

This precedent was also used in the Dover case.

The second important case was also one that did not deal explicitly with evolution but had implications for Dover. It was the much publicized 2004 Elk Grove Unified School District. v. Newdow 542 U.S. 1 in which a parent Michael Newdow had challenged his daughter’s school for including the phrase “Under God” in the Pledge of Allegiance. The US District Court ruled against him but this was overruled by the Ninth Circuit Court of Appeals who found in his favor. The case was then appealed to the US Supreme Court.

The Supreme Court reversed the Appeals Court verdict 8-0 but on mixed grounds (Justice Scalia did not take part in the case). Five justices said that due to a family dispute about whether the father or mother had custody of the child and the standing to sue, the courts had no jurisdiction to review the case. Thus they did not go into the merits of the case and decide whether saying the phrase “Under God” in schools was constitutional or not. Justices Rehnquist, O’Connor and Thomas agreed with the verdict overturning the Appeals Court decision but said that the Supreme Court should have reviewed the case on the merits. They then proceeded to do so and said that the practice was constitutional.

In her concurring opinion on the ruling, Justice Sandra Day O’Connor said the decision on whether the government is involved in an impermissible endorsement of religion had to be made from the viewpoint of a ‘reasonable observer’ who “must embody a community ideal of social judgment, as well as rational judgment. . .must be deemed aware of the history of the conduct in question, and must understand its place in our Nation’s cultural landscape.”

The third case actually dealt with evolution and arose in 2002 when a school board in Cobb County, GA inserted stickers into their biology textbooks that informed students that “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.”

The sticker policy was challenged and in January 2005, in Selman v. Cobb County School District, US District Court judge Clarence Cooper ruled the policy unconstitutional, applying again the Lemon test.

He said that the sticker policy passed the ‘purpose’ prong of the Lemon test:

[A]fter considering the additional arguments and evidence presented by the parties and evaluating the evidence in light of the applicable law, the Court remains convinced that the Sticker at issue serves at last two secular purposes. First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution. For the foregoing reasons, the Court concludes that the Sticker satisfies the first prong of the Lemon analysis.

However, he said that the sticker failed the ‘effect’ prong and this made it unconstitutional and thus the stickers had to be removed. He used Justice Stevens’ language about endorsement in the 2000 Santa Fe case, and Justice O’Connor’s appeal to how a ‘reasonable observer’ might perceive the action, as part of his justification.

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders.

All these legal precedents set the stage for the most recent court battle over the teaching of evolution, in which IDC came under direct scrutiny. This occurred in Dover, PA in 2005 in the case of Kitzmiller v. Dover, which I will begin to examine in the next post in this series.

POST SCRIPT: What topics are conservatives most interested in?

Some time ago, I wrote about how some people are trying to create an alternate reality on the internet so that people will not find their beliefs routinely challenged. Remarkably, such people consider Wikipedia and YouTube as part of this threatening reality, and created alternatives called Conservapedia and GodTube.

So now that time has passed, what topics are conservatives most interested in finding out about? Conservapedia has published the statistics. The results are interesting.

From Scopes to Dover-23: Why some religious people hate the theory of evolution

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

To understand why there is such a deep-seated opposition to Darwin’s theory of evolution by natural selection and how intelligent design creationism (IDC) came into being, one needs to understand its essential idea and the motivations of the people behind it.

On the surface, IDC seems to accept almost all of evolutionary ideas since it seems to leave unchallenged almost all of the key elements of the Darwinian structure, such as the non-constancy of species (the basic theory of evolution), the descent of all organisms from common ancestors (branching evolution), the gradualness of evolution (no sudden discontinuities), the multiplication of species, an old Earth, and natural selection as the driving mechanism for the process.

So how was IDC to advance the cause of religion if it seemed to accept so many evolutionary ideas? The strategy is explicitly outlined in an internal strategy document that has been labeled the ‘Wedge Strategy’ or the ‘Wedge Document’ put out in 1999 by the Center for Science & Culture of the Seattle-based Discovery Institute, which is the well-funded ‘think-tank’ that funds and supports the work of intelligent design creationists. This document came to light fairly recently, before the Dover trial, and it helped to undermine the case for the school board since it showed the religious motivations of those behind IDC.

Here is an extended passage from the introduction of the document that outlines the issues as seen by them:

The proposition that human beings are created in the image of God is one of the bedrock principles on which Western civilization was built. Its influence can be detected in most, if not all, of the West’s greatest achievements, including representative democracy, human rights, free enterprise, and progress in the arts and sciences.

Yet a little over a century ago, this cardinal idea came under wholesale attack by intellectuals drawing on the discoveries of modern science. Debunking the traditional conceptions of both God and man, thinkers such as Charles Darwin, Karl Marx, and Sigmund Freud portrayed humans not as moral and spiritual beings, but as animals or machines who inhabited a universe ruled by purely impersonal forces and whose behavior and very thoughts were dictated by the unbending forces of biology, chemistry, and environment. This materialistic conception of reality eventually infected virtually every area of our culture, from politics and economics to literature and art. (my italics)

The cultural consequences of this triumph of materialism were devastating. Materialists denied the existence of objective moral standards, claiming that environment dictates our behavior and beliefs. Such moral relativism was uncritically adopted by much of the social sciences, and it still undergirds much of modern economics, political science, psychology and sociology.

Materialists also undermined personal responsibility by asserting that human thoughts and behaviors are dictated by our biology and environment. The results can be seen in modern approaches to criminal justice, product liability, and welfare. In the materialist scheme of things, everyone is a victim and no one can be held accountable for his or her actions.

Finally, materialism spawned a virulent strain of utopianism. Thinking they could engineer the perfect society through the application of scientific knowledge, materialist reformers advocated coercive government programs that falsely promised to create heaven on earth.

Discovery Institute’s Center for the Renewal of Science and Culture seeks nothing less than the overthrow of materialism and its cultural legacies. (my italics)

This is why these religious people violently oppose Darwin’s theory. They see him, along with Freud and Marx as the source of the decline of modern society. Of course, Darwin is the most prominent target since the works of the other two do not carry quite the same paradigmatic status and are not taught in public schools.

A little later in the Wedge document one comes across the “Governing Goals” of the movement, which are:

  • To defeat scientific materialism and its destructive moral, cultural and political legacies.
  • To replace materialistic explanations with the theistic understanding that nature and human beings are created by God.

So the goals of the IDC movement are clear. It takes aim at what it sees as the source of all evil, the idea that materialism is the basis of all knowledge. They feel that if they can displace materialism as an operating principle, then they can hope to eventually bring back a non-material god into the schools as an acceptable explanation of phenomena. The way they tried to do that was by arguing that there were a few biological systems of so-called ‘irreducible complexity’ whose existence was inexplicable using Darwinian materialistic methods and thus had to have non-material causes.

The long-term strategy of the Discovery Institute seems to be to first have the ideas of evolution undermined by allowing for the possibility of non-material causation for at least some evolutionary changes, then later introduce IDC as an alternative to the undermined theory of evolution, then bring god back into science education, and finally put god and the Bible and prayer back into public schools everywhere, thus saving the world from sin. They saw this as a slow, incremental advance, taking many years to reach its goal.

The strategy was quite carefully crafted and seemed to be making some progress. They got supporters elected to state school boards in Kansas and Ohio who inserted IDC-inspired language critical of evolution into their state science standards.

The IDC movement knew that eventually someone would challenge the use of IDC ideas in schools in the courts, and tried to avoid giving any reason for ruling IDC out on the basis of establishment clause violations. Their whole approach was to run a stealth campaign, based on what was essentially a public relations strategy. They carefully avoided talk of god as much as possible (at least in public). They did not even insist on teaching intelligent design in schools. Instead they adopted the strategy of asserting that evolution was ‘just a theory,’ that it had problems, that there was a controversy over some of its basic tenets, and that good science and teaching practices required that students be exposed to the nature of this alleged controversy. They got Cobb County in Georgia in 2002 to insert stickers in their biology textbooks that asserted that evolution was only a theory and not a fact.

This stealth approach caused some tension within the religious community since many religious people did not quite get it. Many fundamentalist Christians are militantly proud of their faith and do not feel at all apologetic about their attempts to kick evolution out and put god back in the classroom, since they felt he rightfully belonged there. They were proud of being Christians and they felt that the US was a Christian country. They viewed the delicate maneuvering of the IDC strategists not as a constitutionally astute strategy but as being somewhat cowardly, and needlessly accommodating of anti-Christian beliefs.

When I attended various IDC meetings in 2002 and 2003 I found a huge gulf between the IDC theorists who were the main speakers, and the rank and file attendees. The latter were largely fundamentalist, young Earth, Biblical literal Christians and they did not speak the sophisticated language of the IDC theorists. These people had a much simpler view of the world. In their view, the US was rapidly going to hell in a hand basket. Everywhere they looked, they saw signs of increasing decadence: more nudity, sex, pornography, abortions, crime, violence, profanity, blasphemy, and so on. They saw this as a direct consequence of removing god from the schools and teaching godless evolution, which said that we were no better than monkeys,

So while everyone agreed on the ultimate goal of removing the teaching of evolution from schools, the religiously naïve wanted to mount a direct assault to bring religion back into the classroom, while the more sophisticated IDC strategists felt that one needed to first subtly undermine the idea that materialist explanations were the only ones allowed by science, before introducing more overtly religious ideas.

These internal differences and tensions within the religious community about how to deal with the Darwinian menace stayed below the radar screen. It took the Dover trial to bring them completely out into the open.

POST SCRIPT: Chomsky on Iran

An interesting interview with Noam Chomsky on US-Iran relations.

From Scopes to Dover-22: Creation science is reborn as intelligent design

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

It was with this history of US Supreme Court decisions in mind that we can understand the emergence of the intelligent design creationism (IDC) movement. IDC has to be understood as a carefully crafted theory that was designed to overcome the legal restrictions placed by the establishment clause on inserting religion back into the public schools.

The fundamental goal was still the same: to undermine the theory of evolution and to bring back into schools a god-centered view of creation. But mindful of all the legal setbacks that previous efforts had met, IDC advocates like Berkeley law professor Philip Johnson, tried to find a way to make it acceptable to the courts. Johnson is considered the father of the intelligent design creationism movement, and his book Darwin on Trial (1991) marked its beginning.

The Berkeley Science Review describes the founding of the movement:

Two years later [i.e. 1993], Johnson organized a meeting at Pajaro Dunes near Monterey to bring like-minded thinkers together. Its participants would become the major public figures in intelligent design: Scott Minnich and Michael Behe, who would testify on behalf of ID in Dover, Steven Meyer, who would direct the Discovery Institute’s Center for Science and Culture, and Jonathan Wells, who pursued a PhD in molecular and cell biology at Berkeley after becoming convinced that he “should devote [his] life to destroying Darwinism.”

As we have seen, a succession of judicial rulings had drastically narrowed the range of options open to evolution’s opponents. To recapitulate, in the early days of the republic, public schools taught a generic Protestant-based ideology and the King James’s Bible. But even before the theory of evolution had been announced by Charles Darwin in 1859, the idea of separation of church and state had gained ground and largely resulted by the end of the 19th century in the elimination of religious instruction and the Bible from schools. As the theory of evolution gained ground and became widely taught in schools in the early days of the 20th century, those who were sensitive to its negative implications for religion sought to ban its teaching in schools in order to restore neutrality between what they saw as religious and anti-religious viewpoints.

But attempts to forbid the teaching of evolution had been ruled unconstitutional in Epperson v. Arkansas (1968), the case that was the rightful successor to the Scopes case. The subsequent attempt in 1974 by Tennessee to restore the balance by explicitly teaching the Genesis theories of creationism along with evolution had been ruled unconstitutional by an appeals court and did not even reach the US Supreme Court. (The ever-resilient people of Tennessee tried again in 1996 to pass legislation restricting teaching evolution in schools. The effort failed, presumably because enough legislators realized that they were facing an uphill constitutional battle. (Larson, p. 262))

Realizing that trying to keep evolution out of the schools was futile and introducing explicitly religious ideas into the curriculum to balance evolution was also going nowhere, religious people adopted the ‘equal time’ or ‘balanced treatment’ strategies that Arkansas and Louisiana attempted in 1981. This removed explicit references to religion and the Bible, and instead requested equal time for something called “creation science” to counter the effects of evolution. That strategy had not swayed the courts either, with the Arkansas statute overturned in 1982 in a federal district court and the Louisiana statute overturned by the US Supreme Court in 1987 in Edwards v. Aguillard.

This did not leave religious advocates with much room to maneuver. People who wanted to bring back god into the classroom realized that it required a much more subtle and sophisticated strategy than what had been tried before. The first thing they had to do was to disown any formal links with earlier creationism movements such as “creation science” since those movements had already been tainted by being identified with one particular religious view and teaching that view been rejected by the courts as violating the establishment clause. In Edwards v. Aguillard, the court had made this point quite clear: “The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term “creation science,” as contemplated by the state legislature, embraces this religious teaching.” The decision said that the creation science legislation failed all three Lemon tests: the legislation must have a secular purpose, its primary purpose must be neutral towards religion, and avoid excessive entanglement of the government with religion.

This is why the IDC people tried to avoid at all costs being associated with “creationist” label. It was seen as the kiss of death, as far as constitutional acceptability went. The IDC strategy would be to never even mention the Bible or god or Christianity or creationism or creation science, or even to require the teaching of any alternative theories to evolution, since that too had been seen as constitutionally suspect.

The only option that remained was to seek to discredit the theory of evolution altogether by undermining its credibility. In order to do this, two of the original IDC strategists, Michael Behe and Jonathan Wells wrote their own books, Darwin’s Black Box (1996) and Icons of Evolution (2000) respectively, both targeting evolution and alleging that the theory had fatal weaknesses. These books would become the sacred texts of the IDC movement. Wells’ book follows up a 1978 book that also sought to highlight the alleged weaknesses of evolution, Evolution – The fossils say no! by Duane Gish. (It is interesting that the IDC movement umbrella covers a wide spectrum of religious believers, with Behe being a Roman Catholic and Wells a member of the Unification Church of Reverend Sun Myung Moon.)

Of course, such a minimalist strategy of merely discrediting the theory of evolution by natural selection fell far short of the goals that fundamentalist religious people wanted, which was to bring back into the schools prayer and Bible readings as well as the Genesis story. Since the IDC movement needed the political and economic support of these religious people, what we saw was a delicate maneuvering, trying to balance the legal requirement to avoid seeming to have anything to do with religion, while at the same time reassuring religious believers that intelligent design was a way of getting religion back in the schools.

So there developed an elaborate and carefully choreographed dance, consisting of nods and winks and nudges to the faithful that the IDC movement was merely the vanguard designed to get the religious nose into the tent of the schools. Once that had been established, once the wall of separation in the establishment clause prohibition had been breached in that way, it was felt that the other religious practices could be slowly re-established. This strategy was fully laid out in an IDC internal document known, appropriately enough, as the ‘Wedge Strategy’, which will be described in the next posting.

POST SCRIPT: Creation Science 101

From Scopes to Dover-21: The death of ‘creation science’

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

In the previous post we saw how the goal of trying to get creationist ideas back into the science classroom took the form of the birth of ‘creation science’ and calling for it to be taught along with evolution. While ‘creation science’ had no explicitly religious language, it was clearly a Genesis-based, young Earth, Biblical creationism. The 1981 Arkansas law calling for the balanced treatment of creation science and evolution was promptly overturned in 1982 by a US District Court judge.

The Louisiana ‘balanced treatment’ act of 1981 was less restrictive than the Arkansas one, since its call for teaching creation science merely meant talking about the “scientific evidences for creation and inferences from those scientific evidences”. So while that gave its backers initial hopes that it would survive constitutional challenge, by now the historical record of religious-based efforts to undermine the teaching of evolution, starting with the Scopes trial, was too heavy a baggage for these efforts to overcome. It had become increasingly difficult to argue that the fight against the teaching of evolution was not religion-based, and this ended up dooming the Louisiana statute. The Louisiana Act, like its Arkansas counterpart, was overturned by a US District Court. The case was then appealed to a federal Appeals Court, where the District Court ruling was upheld by a narrow 8-7 margin.

The trail linking opposition to the teaching of evolution to advocacy of religion was just too long, and the ghost of the Scopes trial emerged from the shadows again. As the federal Appeals Court panel said when it made its ruling: “The case comes to us against a historical background that cannot be denied or ignored. . .The Act continues the battle William Jennings Bryan carried to his grave. The Act’s intended effect is to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief. The statute therefore is a law respecting a particular religious belief. . . and thus is unconstitutional.” (Summer of the Gods, Edward J. Larson, 1997 p. 259)

The narrowness of the margin must have given the law’s supporters hope that the US Supreme Court might overturn the verdict, and the Appeals Court ruling was appealed. But their hopes were dashed. The Supreme Court in a 7-2 ruling (with Chief Justice Rehnquist and Justice Scalia dissenting) issued its verdict on this case in 1987 in Edwards v. Aguillard 482 US 578, in which it said that the Louisiana statute violated the establishment clause.

The summary of the majority opinion stated:

(a) The Act does not further its stated secular purpose of “protecting academic freedom.” It does not enhance the freedom of teachers to teach what they choose, and fails to further the goal of “teaching all of the evidence.” Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a “basic concept of fairness” by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism, but not for teaching evolution, by limiting membership on the resource services panel to “creation scientists,” and by forbidding school boards to discriminate against anyone who “chooses to be a creation scientist” or to teach creation science, while failing to protect those who choose to teach other theories or who refuse to teach creation science. A law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counterbalancing its teaching at every turn with the teaching of creationism.

(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term “creation science,” as contemplated by the state legislature, embraces this religious teaching. The Act’s primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. (my italics)

By now it was clear that the Supreme Court had determined that attempts to teach anything along the lines of ‘creation science’ or to discredit evolution sprang from basically a religious motivation and thus any legislative attempts to do so ran into the immediate presumption that it violated both the purpose and effect prongs of the 1971 Lemon test, thus violating the neutrality requirement set forth in the 1947 Everson ruling.

The next establishment clause case was not directly related to religion in schools but had implications for it that showed up in later cases. It was the 1989 case of County of Allegheny v. ACLU 492 US 573 where some citizens had challenged the practice of having a crèche and a menorah on display in the county courthouse. The court in a 5-4 ruling said that the crèche was unconstitutional. In the majority opinion, Justice Harry Blackmun reiterated the belief that the government must be secular and also addressed the issue of whether denying Christians the right to display their religious symbols was, in effect, favoring nonbelievers.

The Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating against citizens on the basis of their religious faiths. Thus, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of nonadherents must fail, since it contradicts the fundamental premise of the Establishment Clause itself. In contrast, confining the government’s own Christmas celebration to the holiday’s secular aspects does not favor the religious beliefs of non-Christians over those of Christians, but simply permits the government to acknowledge the holiday without expressing an impermissible allegiance to Christian beliefs.

Although the close 5-4 vote in this case may have initially given some hope to religious groups, even the minority opinion, while disagreeing with this specific verdict and arguing that the crèche was merely a passive symbol reflecting the heritage of the nation and unlikely to lead to the establishment of a state religion, reiterated the basic consensus that the government should not be in the position of seeming to favor one religion.

[T]he Establishment Clause permits government some latitude in recognizing the central role of religion in society. Any approach less sensitive to our heritage would border on latent hostility to religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion, and so to the detriment, of the religious. Thus, this Court’s decisions disclose two principles limiting the government’s ability to recognize and accommodate religion: it may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to a religion in such a degree that it, in fact, establishes a state religion or tends to do so. In other words, the government may not place its weight behind an obvious effort to proselytize on behalf of a particular religion. (my italics)

So although this case did not involve evolution, it reinforced the legal principle that the government should practice strict neutrality when it came to matters of religion.

It is in the light of all these US Supreme Court precedents that the intelligent design creationism movement came about. It was designed specifically to overcome these restrictions, especially those that had been enunciated in the 1987 Edwards v. Aguillard ruling.

POST SCRIPT: Mickey and the Pope

I recently viewed the film The Da Vinci Code which was largely a waste of time because of its preposterous plot (perhaps the book is better) and was barely made watchable by the engaging presence of its two stars Tom Hanks and Audrey Tatou.

The story makes much of the hidden symbolism in Leonardo Da Vinci’s painting The Last Supper. What some people may not know is that the Pope also commissioned Michelangelo to do a similar portrait that, alas, did not turn out well, as this clip shows.