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

Following the overturning of the 1974 Tennessee “equal emphasis” law, neighboring Axis of Weevils member state Arkansas took the lead in trying to find ways to undermine evolution and introduce religious ideas of creation into the biology curriculum in ways that would not violate the establishment clause. The lesson they drew from the Tennessee case was that any legislation aimed at achieving these goals had to be worded in neutral ways that avoided any and all religious language or references to the Bible. What emerged from this effort is what is now known as ‘creation science’, a superficially non-religious alternative to the theory of evolution by natural selection.
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(For previous posts in this series, see here.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

POST SCRIPT: Teasing telemarketers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

POST SCRIPT: Dover trial on Nova

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

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

Here is a preview of the program

There is also a companion website.