(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?