Evolution & creation

By David L. Hudson Jr., First Amendment Scholar

Updated January 2006

The evolution vs. creationism debate has engendered controversy for more than a century, causing an uproar in science, religion and constitutional law.

More than 80 years ago legendary lawyers Clarence Darrow and William Jennings Bryan matched wits in a Dayton, Tenn., courtroom over evolution and creationism. Darrow represented young science teacher John Scopes and the evolution point of view, while Bryan represented the creationist point of view for the prosecution.

The controversy began when Charles Darwin postulated the scientific basis for evolution in his 1859 book, The Origin of Species. The theory of evolution posits that living species, including man, descended from lower orders through processes of natural selection and mutation. The idea that man evolved from animals such as apes offends many creationists, who believe the biblical version of the origin of man in Genesis.

The debate continues today with a campaign supporting the idea of “intelligent design,” which holds that the world is so complex that evolution cannot explain the development of species, and that an intelligent designer must have played a role in the creation of man and the world.

Aside from larger questions of science and religion, the evolution-creationism debate also presents intriguing First Amendment issues in public schools. The question looms whether it violates the establishment clause when state laws or local school board policies mandate that intelligent design be taught in science classes alongside evolution.

Even President George W. Bush entered the fray, commenting in 2005: “Both sides ought to be properly taught so people can understand what the debate is about … . I think that part of education is to expose people to different schools of thought.”

Justice Oliver Wendell Holmes once wrote that “a page of history is worth a volume of logic.” This comment applies in the evolution-creationism issue, beginning with the legendary Scopes trial.

Scopes trial
The celebrated “Scopes monkey trial” took place in Dayton, Tenn., in 1925. The case involved Rhea County science teacher John Scopes, prosecuted for violating a state law forbidding the teaching of evolution in public schools. A jury convicted Scopes of violating the law but refused to fine him. The trial judge ordered Scopes to pay a $100 fine. In its 1927 decision Scopes v. State,the Tennessee Supreme Court reversed the conviction, finding that only the jury could fine the defendant. The court then noted that Scopes had left the state and that no further prosecution should take place: “We see nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the State, which all criminal prosecutions are brought to redress, will be better conserved by the entry of a nolle prosequi herein.”

The Scopes trial ended without a court declaration that the Tennessee law prohibiting the teaching of evolution was unconstitutional under the establishment clause of the First Amendment or a similar provision in the Tennessee Constitution.

Epperson v. Arkansas
The U.S. Supreme Court did not directly address the constitutionality of a Scopes-like law until its 1968 decision Epperson v. Arkansas. The case involved an Arkansas law that prohibited the teaching of evolution in public schools.

The law provided: “It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School, or other institution of the State … to teach the theory or doctrine that mankind ascended or descended from a lower order of animals.” A related law provided that any teacher who taught evolution could be charged with a misdemeanor and subject to a $500 fine.

Susan Epperson, a young biology teacher, challenged the statute on First Amendment grounds. The Court determined that the law violated the establishment clause, finding that “fundamentalist sectarian conviction was and is the law’s reason for existence.”

“The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment,” Justice Abe Fortas wrote for the Court.

“Arkansas’ law cannot be defended as an act of religious neutrality,” he added. “Arkansas did not seek to excise from the curricula or 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.”

Edwards v. Aguillard
The evolution controversy continued after the Epperson decision. In the 1970s and 1980s, the controversy over “scientific creationism” took center stage when Arkansas and Louisiana passed laws mandating the teaching of creationism alongside evolution. A federal district court invalidated the Arkansas law in the 1982 decision McLean v. Arkansas Board of Education and the U.S. Supreme Court invalidated the Louisiana law that required “balanced treatment” for the teaching of evolution and “creation science” in Edwards v. Aguillard (1987).

Aguillard dealt with a 1982 Louisiana law called the Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act. The law required that if teachers instruct students about the theory of evolution, they must also instruct the students about creation theory.

The state argued that the law served the valid, secular purpose of promoting academic freedom. The law’s challengers countered that the purpose of the law was to advance a particular religious viewpoint.

The Court ruled 7-2 against the law, finding that the “preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.” The majority added that “the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint.”

The Supreme Court did state that “teaching a variety of scientific theories about the origins of humankind might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.” However, creationism is not considered a scientific theory. Some argue, however, that intelligent design is closer to a scientific theory.

‘Intelligent design’
First Amendment Center senior scholar Charles Haynes wrote in a 2004 column: “As soon as one challenge to the teaching of evolution is beaten in the courts, another emerges to take its place. The current contender is ‘intelligent design.’”

Baylor University professor and legal commentator Francis Beckwith wrote in a 2003 article in the Harvard Journal of Law and Public Policy: “The Intelligent Design (ID) movement has presented an array of sophisticated and empirically grounded arguments supporting the notion that intelligent agency may do a better job of accounting for certain aspects of the natural world, or the natural world as a whole, than non-agent explanations, such as natural selection or scientific laws working on the unguided interaction of matter.”

Beckwith argues that intelligent design does not suffer from the same constitutional problems as creationism when it comes to teaching public school science classes: “Unlike the creationism rejected … by the Supreme Court inEdwards, ID cannot be repudiated as a political endeavor by Christian fundamentalists to indoctrinate schoolchildren to accept biblical literalism instead of science.”

Others disagree, viewing intelligent design as creationism in disguise. “ID is intended as a replacement for traditional forms of creationism,” said Glenn Branch, deputy director of the National Center for Science Education, in an interview with First Amendment Center Online. “It was concocted in the hope that it would survive constitutional scrutiny and that’s why, for example, proponents of ID will not identify the designer as God although it is clear to everybody that it is God.”

“Intelligent design should not be taught in science classes for at least two reasons,” said Branch. “First, it is not science. Intelligent-design proponents have not contributed any peer-reviewed scientific research literature, which is the gold standard for science. They are making their case not to the scientific community but to the public. The other reason ID should not be taught in science classes is that it will violate the establishment clause of the First Amendment.”

Jeremy Leaming, a spokesman for Americans United for Separation of Church and State and former First Amendment Center staff writer, agreed in an interview, calling intelligent design “a reincarnation of creation science.” He contends forcing the inclusion of intelligent design in science classes would violate the establishment clause because it amounts to “advancing a specific religion’s belief over other religion’s beliefs and secular beliefs on the origins of life.”

Important case in Pennsylvania
The leading case on intelligent design arose in the small town of Dover, Pa. In October 2004, the Dover Area School Board passed 6-3 the following resolution:

“Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught.” The Dover Area School District responded in November 2004 by announcing that teachers would be required to read a statement in biology classes in January 2005. The statement said in part:

“Because Darwin’s Theory is a theory, it is still being tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.
“Intelligent design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students to see if they would like to explore this view in an effort to gain an understanding of what intelligent design actually involves.
“With respect to any theory, students are encouraged to keep an open mind. …”

A group of parents — with help from the American Civil Liberties Union and Americans United for Separation of Church and State — filed a lawsuit in December 2004. The complaint in Kitzmiller v. Dover Area School Districtalleges that the school district policy violates the establishment clause in several ways: “The policy has no secular purpose. Singling out evolution from all other scientific topics in the curriculum for special, negative treatment detracts from the science education of students in the Dover Area School District, and misleads them about the established position of the scientific theory of biological evolution in the scientific community.”

However, the school district, represented by the Thomas More Law Center, contended that it was acting constitutionally. “Not only is Dover following congressional intent in adopting their policy, but their actions are constitutionally permissible,” said Richard Thompson, president and chief counsel of the Thomas More Law Center.

The case proceeded to trial from September-November 2005. In December, U.S. District Judge John E. Jones III issued a 139-page opinion.

Jones ruled that the intelligent-design policy violated the establishment clause. “The overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory,” he wrote.

Jones went even further in his ruling, finding that ID was not science: “It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science.”

He concluded his opinion with sharp words: “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.”

The decision was not appealed, as a new Dover School board unanimously rescinded the intelligent-design policy in early January 2006.

Even though the Pennsylvania case ended, another ID controversy surfaced in California.

The Americans United for Separation of Church and State sued a high school district in California for its January 2006 creation of a course called “Philosophy of Intelligent Design” at Frazier Mountain High School. The lawsuit in Hurst v. Newman alleged that El Tejon Unified school district officials violated the establishment clause by allowing the course.

Later in the month, school officials relented and agreed to drop the course to settle the lawsuit.

In March 2002, the Cobb County (Ga.) Board of Education ordered that a sticker be placed in science textbooks that read:

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.

Several parents challenged the sticker on establishment clause grounds in federal court. In January 2005, a federal district court in Georgia ruled inSelman v. Cobb County School District that the sticker did violate the establishment clause. The court wrote that the sticker advanced two secular purposes: fostering critical thinking by students and reducing “offense to students and parents whose beliefs may conflict with the teaching of evolution.” However, the court found that the sticker violated the “effects” prong of theLemon test (established by the Supreme Court in 1971 in Lemon v. Kurtzman) — which asks whether the regulation has a primary effect of advancing or inhibiting religion. The district court wrote that the sticker “has the effect of implicitly bolstering alternative religious theories of origin by suggesting that evolution is a problematic theory even in the field of science.”

“In the wake of Edwards v. Aguillard, proponents of creationism have tried two tactics,” says Branch. “First, they have repackaged creationism to something more secular-sounding. Secondly, they have abandoned the advancement of alternatives to evolution and have concentrated on slinging mud at evolution. These include disclaimers describing evolution as just a theory or invidiously singling it out as problematic.”

Others believe that disclaimers — verbal pronouncements or stickers placed in textbooks — can be permissible accommodations of religion. For example, commentator F. Arthur Jones II wrote in a 2003 Loyola Law Review article in favor of a similar evolution disclaimer in Louisiana invalidated by the 5th U.S. Circuit Court of Appeals in Freiler v. Tangipahoa Parish Board of Education.

“This disclaimer, in effect, accommodates creationists by reducing the students’ possible impressions that the state desires them to accept every theological implication that evolution might present. Because it endeavors to do so from a secular perspective, it accommodates this real concern for many religious Louisianans without endorsing any religious beliefs. Consequently, the disclaimer may be viewed as a permissible accommodation of religion.”

The landscape with respect to disclaimers remains muddled but could become clearer once the Cobb County case is resolved. It is currently before the 11th Circuit.

Legislative activity
The evolution/intelligent design controversy has become common fodder for many legislators, as bills have been introduced in about 20 states. The bills vary in language and, arguably, in intent but many would require the teaching of intelligent design alongside evolution. For example, New York Assembly Bill No. 8036, introduced on May 3, 2005, would provide: “All pupils in grades kindergarten through twelve in all public schools in the state shall receive instruction in both theories of intelligent design and evolution.”

A measure (S. 909) introduced in the South Carolina Senate in June 2005 reads: “[T]he State Board of Education shall implement policies and a curriculum that accomplish the General Assembly’s desire to provide a quality science education that shall prepare students to distinguish the data and testable theories of science from religious or philosophical claims that are made in the name of science. Where such topics are taught that may generate controversy, such as biological evolution, the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy, and how scientific discoveries can profoundly affect society.”

“The ID-type bills are generally introduced by legislators who want to placate fundamentalist constitutiencies,” Branch says. “They tend to all die in committee.”

These measures have indeed tended to die in committee so far, but the pace of their introduction assures that the issue is far from resolved.

Some of these measures appear to take the rallying cry of “teach the controversy.” The thinking, which is reflected in the recent comments on the subject by President Bush, is that students should at least learn that there is a conflict between evolutionists and those who favor intelligent design.

In a 2005 column, the First Amendment Center’s Charles Haynes wrote, “Public schools aren’t a proving ground for untested theories. And students shouldn’t become guinea pigs (or monkeys, for that matter) in the culture-war debate over evolution. That’s bad for science education — and for the nation.”

The debate rages on at the local school board level across the country. For example, the Kansas Board of Education has been embroiled in the evolution-intelligent design controversy for years. In November 2005, the Kansas Board of Education adopted new science standards that many say will pave the way for ID to be introduced in the schools.

The evolution-creationism debate has taken many forms and has morphed over the years since Bryan and Darrow locked horns in that Dayton, Tenn., courtroom. Statutes banning evolution have been replaced by efforts to give “balanced treatment” to evolution and creationism. That has been replaced by the intelligent-design movement.

What has not changed, however, is the divisiveness of the issue and the differing opinions on whether many of these proposals violate the establishment clause of the First Amendment.