The bill was appealed by the National Association of Biology Teachers on First Amendment arguments. At about the same time, Susan Epperson, a high school biology teacher in Little Rock, Arkansas, filed suit against the state on the grounds that an antievolution bill passed in 1929 violated her rights to free speech. She won, but the case was overturned by the Arkansas Supreme Court in 1967 and later appealed to the U.S. Supreme Court. In 1967, Tennessee repealed its antievolution law, and in 1968, the U.S. Supreme Court found Epperson in the right. The Court viewed the 1929 Arkansas law as "an attempt to blot out a particular theory because of its supposed conflict with the biblical account" (in Cowen 1986, p. 9) and interpreted it as an attempt to establish a religious position in a public classroom. On the basis of the Establishment Clause, the Arkansas law was overturned and the Court ruled all such antievolution laws unconstitutional. This series of legal contingencies led directly to a third course of action on the part of the creationists.
Equal Time for Creation-Science and Evolution-Science
If evolution could not be excluded from the classroom, and if the teaching of religious tenets was unconstitutional, creationists needed a new strategy to gain access to public school classrooms. Enter "creation-science." In 1972, Henry Morris organized the Creation-Science Research Center as an arm of the San Diego-based Christian Heritage College. Morris and his colleagues focused on the production and distribution of Science and Creation booklets designed for grades 1 through 8, which they managed to introduce in twenty-eight states in 1973 and 1974, along with other tracts such as Robert Kofahl's Handy Dandy Evolution Refuter (1977) and Kelly Segraves's The Creation Explanation: A Scientific Alternative to Evolution (1975). The argument was that since academic honesty calls for a balanced treatment of competing ideas, creation-science should be taught side-by-side with evolution-science. Backers made a clear distinction between biblical creationism, with its openly fundamentalist religious basis, and scientific creationism, which emphasized the nonreligious scientific evidence against evolution and in favor of creation. Throughout the late 1970s and 1980s, the Creation-Science Research Center, the Institute for Creation Research, the Bible Science Association, and other such organizations pressed state boards of education and textbook publishers to include the science of creation alongside the science of evolution. Their goal was clearly stated: "to reach the 63 million children of the United States with the scientific teaching of Biblical creationism" (in Overton 1985, p. 273).
On the legal end of this third strategy, in 1981 Act 590 was enacted, requiring "balanced treatment of creation-science and evolution-science in public schools. Its purposes were to protect academic freedom by providing student choice; to ensure freedom of religious exercise; to guarantee freedom of speech;... [and] to bar discrimination on the basis of creationist or evolutionist belief' (in Overton 1985, p. 260). According to the California Science Teacher's Journal, "The Statute was introduced by a Senator who hadn't written a word of it, and didn't know who had. It was debated for 15 minutes in the State Senate, there was no floor debate in the House of Representatives, and the Governor signed it without reading it" (in Cowen 1986, p. 9). Nonetheless, it was law, and a year later the state of Louisiana passed a similar bill.
The constitutionality of Act 590 was challenged on May 27, 1981, with the filing of a suit by Reverend Bill McLean and others. The case was brought to trial in Little Rock on December 7, 1981, as McLean v. Arkansas. The contestants were, on one side, established science, scholarly religion, and liberal teachers (backed by the ACLU) and, on the other, the Arkansas Board of Education and various creationists. Federal Judge William R. Overton of Arkansas ruled against the state on the following grounds: First, creation-science conveys "an inescapable religiosity" and is therefore unconstitutional. "Every theologian who testified," Overton explained, "including defense witnesses, expressed the opinion that the statement referred to a supernatural creation which was performed by God." Second, the creationists employed a "contrived dualism" that "assumes only two explanations for the origins of life and existence of man, plants and animals: It was either the work of a creator or it was not." Given this either-or paradigm, the creationists claim that any evidence "which fails to support the theory of evolution is necessarily scientific evidence in support of creationism." But, as Overton clarified, "Although the subject of origins of life is within the province of biology, the scientific community does not consider origins of life a part of evolutionary theory." Furthermore, he noted, "Evolution does not presuppose the absence of a creator or God and the plain inference conveyed by Section 4 [of Act 590] is erroneous." Finally, Overton summarized the arguments of expert witnesses (including Gould, Ayala, and Michael Ruse) that creation-science is not science, as the scientific enterprise is usually defined: "science is what is 'accepted by the scientific community' and is 'what scientists do.'" Overton then listed the "essential characteristics" of science as outlined by the expert witnesses: "(1) It is guided by natural law; (2) It has to be explanatory by reference to natural law; (3) It is testable against the empirical world; (4) Its conclusions are tentative . . . ; and (5) It is falsifiable." Overton concluded, "Creation-science . . . fails to meet these essential characteristics." Moreover, Overton noted, "Knowledge does not require the imprimatur of legislation in order to become science" (1985, pp. 280-283).
To the Supreme Court
Despite this decision, creationists continued their lobbying for equal-time laws and revised textbooks. But this top-down strategy of passing laws and pressuring textbook publishers was hampered by the outcome of the case against the Louisiana law. In 1985, the Louisiana law was struck down by summary judgment (i.e., without trial) in the Federal Court of Louisiana when U.S. District Judge Adrian Duplantier ruled in concurrence with Overton that creation-science was actually religious dogma. Judge Duplantier's decision ignored the characteristics of science, centering instead on a religious argument—that teaching creation-science requires teaching the existence of a divine creator, which is in violation of the Establishment Clause. Despite the fact that over a thousand pages dealing with the characteristics of science were filed, Judge Duplantier declined "the invitation to judge that debate" (in Thomas 1986, p. 50). The decision was appealed to the U.S. Court of Appeals for the Fifth Circuit, where the value of that debate was argued. That court, initially with a panel of three judges and subsequently en banc with all fifteen judges voting, agreed with the district court that the statute was unconstitutional.
But when a federal court holds a state statute unconstitutional, by "mandatory jurisdiction," the U.S. Supreme Court must hear the case. And since the vote was only 8 to 7, Louisiana submitted a "jurisdictional statement," thus establishing a substantial federal question. At least four of the nine Supreme Court justices concurred that it was substantial, and by the "rule of four" agreed they would hear the case. The initial oral arguments in Edwards v. Aguillard were made on December 10, 1986, with Wendell Bird representing the appellants, and Jay Topkis and the ACLU the appellees. Bird first argued that because of some confusion about what the Louisiana statute means, "a trial, with factual development, ought to occur to enable expert witnesses on both sides to give definitions" {Official Transcript Proceedings 1986 [hereafter OTP], p. 8). After lengthy discussion of the "actual" intent of the Louisiana statute, Bird pushed the "academic freedom concern"—the "rights" of students to a balanced treatment of evolution and creation (p. 14).
Using a minimalist approach, and responding to the focus of Duplantier's decision, Topkis argued that creation-science was merely religion posing as science and was therefore unconstitutional. In this instance, however, the argument failed on the grounds that if the science were valid, it should have a place in the curriculum of public school science classes, no matter what its relation to religion. The justices' historical analogies brilliantly countered Topkis's arguments. For example, Chief Justice William Rehnquist demonstrated to Topkis that it is possible to believe in the creation of li
fe by God with no religious intent (OTP, pp. 3536).
Rehnquist: My next question is going to be whether you considered Aristotelianism a religion?
Topkis: Of course not.
Rehnquist: Well, then, you could believe in a first cause, an unmoved mover, that may be impersonal, and has no obligation of obedience or veneration from men, and in fact, doesn't care what's happening to mankind.
Topkis: Right.
Rehnquist: And believe in creation.
Topkis: Not when creation means creation by a divine creator.
Rehnquist: And I ask you, it depends on what you mean by divine. If all you mean is a first cause, an impersonal mover—
Topkis: Divine, Your Honor, has connotations beyond, I respectfully submit.
Rehnquist: But the statute doesn't say "divine."
Topkis: No.
Rehnquist: All it says is "creation."
Later in the arguments, Justice Antonin Scalia became "concerned about whether purpose alone would invalidate a State action, if a State action has a perfectly valid secular purpose," and drove home the issue with an even more enlightening historical argument about the irrelevancy of intent:
Let's assume that there is an ancient history professor in a State high school who has been teaching that the Roman Empire did not extend to the southern shore of the Mediterranean in the first century A.D. And let's assume a group of Protestants who are concerned about that fact, inasmuch as it makes it seem that the Biblical story of the crucifixion has things a bit wrong—because of that concern, and really, no other reason—I mean, this fellow's also teaching other things that are wrong. He's teaching that the Parthians came out of Egypt. They don't care about that. They do care that Romans were in Jerusalem in the first century A.D. So they go to the principal of the school, and say, this history professor is teaching what is just falsehood. I mean, everybody knows that Rome was there. And the principal says, gee, you're right. And he goes in and directs the teacher to teach that Rome was on the southern shore of the Mediterranean in the first century A.D. Clearly a religious motivation. The only reason the people were concerned about that, as opposed to the Parthians, was the fact that it contradicted their religious view. Now, would it be unconstitutional for the principal to listen to them, and on the basis of that religious motivation, to make the change in the high school? (pp. 40-41)
Justice Lewis Powell followed with still another historical example about a hypothetical school presenting "only the Protestant view of the Reformation in their medieval history classes," with Catholics demanding equal time on religious grounds. The Catholics' demands would be historically tenable, so Powell inquired whether their demands would "raise any problems." Topkis responded, "So long as the purpose of the school authorities, in taking this position, was an historical purpose rather than a religious one, I couldn't quarrel with it" (pp. 47-48).
After Powell joined Rehnquist and Scalia in questioning whether the religious motives of the appellants were sufficient to call into question the legitimacy of their claims on behalf of creation-science, it seemed that Topkis's minimalist strategy of establishing religious intent was about to backfire and that there was a real possibility that the Louisiana statute would be upheld.
Science Defended
One of the appellees' witnesses in the trial, Stephen Jay Gould, in a letter to Jack Novik of the ACLU dated December 15, 1986, noted that Topkis was "nailed, absolutely nailed, by both Scalia and Rehnquist (the last two men in America I thought I'd ever be praising, but they were spot on in this)." Gould continued, "I entered with the conviction that we had four votes for sure (Brennan, Marshall, Blackmun, and Stevens), they had two (Rehnquist and Scalia), and that we probably had our key fifth vote in Powell, and probably a sixth and maybe even a seventh in O'Connor and White. I am no longer so sure that I know where the fifth vote will come from. Am I unduly pessimistic?" At the time, possibly not. After all, Topkis and the ACLU were using the very strategy preferred by creationists whenever they debate evolutionists: go on the offensive and say nothing about your own position so that you do not need to be defensive. Gould expressed his extreme frustration when he wrote to Novik: "It would have been sad enough if we had only argued badly. But I feel especially downhearted because I think that we also argued indecently as well. We did the very thing that we have always accused the creationists of promoting— argument by innuendo rather than content. I never thought it could happen. We were not honorable. I feel like the little boy tugging on Shoeless Joe Jackson's sleeve—'say it ain't so, Jack.' Am I wrong?" If the key fifth vote could not be swung, the Louisiana appeal would be successful, negating Judge Overton's decision in the Arkansas trial and setting a precedent for other states to pass their own equal-time laws.
Since the argument attacking the religious motivations of the creationists was not valid in the view of the Court, another tack was needed. Denying the scientific content of creation-science seemed to be the only hope for the appellees. What was needed was a clear-cut and succinct definition of science so that the Court could see that the scientific content of creation-science failed to meet criteria that would legitimize its claim to "scientific" standing.
In spite of centuries of attention by scientists and philosophers of science, no concise definition of science has ever been accepted by the community of scientists and scholars. This situation changed temporarily with the amicus curiae brief submitted on August 18, 1986, to the Supreme Court. For this brief, the amid managed to define and agree upon the nature and scope of science. The brief was instigated by Murray Gell-Mann, Paul MacCready, and other members of the Southern California Skeptics Society after they read in the Los Angeles Times that the U.S.
Supreme Court had agreed to hear the Louisiana case. Worried, they contacted attorney Jeffrey Lehman, who had recently clerked for Justice John Paul Stevens. Lehman told them that "an amicus brief is the proper way for independent outsiders to present their views to the Supreme Court" (Lehman 1989).
The idea was born in March 1986. The brief would have to be submitted in five months. Time was of the essence. Lehman enlisted the help of Beth Kaufman, a colleague with expertise on the Establishment Clause. William Bennetta, a historian of the creationist movement, flew to Washington, D.C., to brief Lehman and Kaufman. Gell-Mann sent letters to state academies of science and to Nobel laureates in science and medicine in which he outlined the goals of the brief—which included showing that the language of the statute "displays and propagates misconceptions about the processes and vocabulary of science, that enforcement of the statute would promote the confusion of science with religion, and that such enforcement would subvert and distort efforts to teach well-established scientific conclusions about cosmic, planetary, and organic evolution." As a result, Gell-Mann noted, the statute "can be explained only as an attempt to misrepresent science for the sake of promoting fundamentalist religion" (letter to Nobel laureates, June 25, 1986).
The scientific community responded thoroughly and positively. For example, the Iowa Academy of Science joined the amid and sent Gell-Mann a copy of their position statement on "creationism as a scientific explanation of natural phenomena." Nobel laureate Leon N. Cooper accepted the invitation and sent Gell-Mann a copy of a lecture he had given on creation-science. The president of the Institute of Medicine, Samuel O. Thier, offered Gell-Mann his best wishes but declined to join only because the institute was filing its own amicus brief.
As it turned out, because the oral arguments went so badly, the briefs were significantly more important than anyone had anticipated. In a letter sent the same day as the one to Novik, Gould expressed his disappointment and concern to Gell-Mann (and revealed the level of his emotional commitment to the defense of science against the creationists): "God, I never thought those bozos could ever possibly come off better than our side in a high-level argument where it really mattered. But there is another side to all this. Our oral argument was so bad that our only hope now resides in the briefs. This makes what you
did in securing the Nobelist brief all the more important, indeed probably crucial. And so I write, on behalf of the entire company of evolutionary biologists, to thank you for taking so much time for such important service in the truly common defense." Gell-Mann recalled that "we were very upset about the oral presentation. It wasn't that creationists are religious. Lots of scientists are religious. It's that they are claiming to be presenting science when it is really just total nonsense. It would be like the Flat Earth Society insisting their theory be taught in the public schools" (1990).
Science Defined
The amicus curiae brief was written primarily by Jeffrey Lehman, with input from Kaufman, Gell-Mann, Bennetta, and others. Lehman said that the "difficulty in writing this brief from a lawyer's point of view was to clarify what makes science different from religion, and why creationism isn't scientific. When I talked with scientists they weren't at all clear in trying to briefly define what they do" (1989). The brief is concise (twenty-seven pages), well-documented (thirty-two lengthy footnotes), and argues that creation-science, on the one hand, is just a new label for the old religious doctrines of decades past and, on the other, does not meet the criteria of "science" as defined in the brief by the amici.
Why People Believe Weird Things: Pseudoscience, Superstition, and Other Confusions of Our Time Page 22