(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.