The creationist controversy: the social stakes
Flaherty, Francis J.
FUNDAMENTALISM & THE FIRST AMENDMENT The creationism controversy: the social stakes FRANCIS J. FLAHERTY TO THE RELIEF and acclaim of liberals, a federal judge in Little Rock struck down...
...Fundamentalists may very well be benighted and befuddled, but their motive in passing Act 590 was not, vide the New York Times, intolerance...
...A "yes" answer to any of these three questions renders the law violative of the Establishment Clause...
...And in 1972, in one of its strongest statements about the right of religious liberty in a school, the Court upheld the right of an Amish couple in Wisconsin to withdraw their fourteen- and fifteen-year-old children from public school in spite of that state's education law, which compelled school attendance through age sixteen...
...But one woman, a Seventh-day Adventist whose faith required her to refrain from Saturday work, took issue with the rule and, in Sherbert v. Verner, the Supreme Court agreed...
...The first clause - known as the Establishment Clause - is an example of a "means" provision: not an end in itself, it is a rule meant to protect some other constitutionally recognized good...
...blacks may object to the white, middle-class focus of the schools...
...When does the inculcation of values become indoctrination...
...In sweeping language, the Court held that there was no "general power in the State to standardize its children...
...As such, it no more belongs in biology class than does the doctrine of transubstan-tiation...
...Unless wealthy enough to afford private tuition, these parents are required by compulsory education laws to send their children to public schools to learn doctrines detrimental to their faith...
...Creation science, in effect, asks: "What theory of origins best accords with Genesis...
...Such a practice, the plaintiffs said, "was forbidden by command of Scripture" - or at least by their reading of it...
...They realized that an alliance between a church and the state would be dangerously fertile soil for the oppression of other, unallied faiths...
...It is a good question, one which deserves a more temperate response than the media have given it...
...And students who do not object to evolution can remain in class unhampered, while the educational disadvantage of not learning about Darwin will be limited to those Fundamentalists who voluntarily elect exemption...
...As educator, the state compels attendance and exercises a practical monopoly on pre-college schools...
...This is a formidable constitutional problem, according to Wendell Bird, an attorney for the Institute for Creation Research and a principal legal advisor on Act 590...
...There but for the grace of God go we: many faiths may plausibly be undermined by parts of public school curricula...
...Whether based on the right of free speech or the right of association or some other liberty, these issues all loudly demand a reconciliation between compulsory public education and the cherished American freedom to be different...
...And it was a timely victory for liberals concerned by the aggrandizing spirituality of the Moral Majority...
...The court, then, has historically been sensitive to the totalitarian dangers of public education...
...And it seems more dangerous to the state's educational goals...
...After an exhaustive review of the traits of true science - experimentation, trial and error, revision of hypotheses to accord with new facts - and the uniform absence of those characteristics in creation science, Judge Overton held that however you gussy it up, creation science is no science: "While anybody is free to approach a scientific inquiry in any fashion he chooses, he cannot properly describe the methodology used as scientific if he starts with a conclusion and refuses to change it, regardless of the evidence developed during the course of the investigation...
...After scrutinizing creationist writings and the statements of both Paul Ellwanger, a South Carolina respiratory therapist who authored the bill, and James L. Hoisted, the state senator who introduced it, Overton judged that Act ,590 "was simply and purely an effort to introduce the biblical version of creation into the public school curricula...
...Act 590, the New York Times editorialized, was the work of an "intolerant, moralistic minority," a scheme of "religious zealots...
...It is on this premise that the Establishment Clause is based...
...But Bird incorrectly believed that creation science was a bona fide science rather than a disguised religious doctrine...
...The authors agreed on only one thing: the large legal issues posed by Scopes remain unresolved...
...Difficult though they are, these questions are popping up more and more frequently and in the most disparate of contexts...
...Will a conscientious-objector law involve the state too deeply in assessing the sincerity or value of a draftee's spiritual beliefs...
...BUT, ALL in all, McLean raises more questions than it answers...
...Did the law have the primary effect of advancing religion...
...Catholics may request exemption from sex-education courses...
...Involvement of the State in screening texts for impermissible religious references will require State officials to make delicate religious judgments...
...Two years later, the Court overturned an Oregon law which, by making public school compulsory for every child in the state, essentially outlawed private schools...
...One needn't be enrolled in a prac-ticum in totalitarianism to realize the opportunities this closed system provides for state indoctrination - as opposed to education - of our youth...
...In their fastidious way, the courts have created a three-part test to determine if a particular governmental activity transgresses that clause...
...When Judge Overton declared creation science to be the latter, he properly held that - even when given a scientific gloss - religious instruction in public schools violates the Establishment clause...
...Laws requiring stores to be closed on Sunday, for example, only indirectly aid religion, while state-sponsored school prayer primarily promotes religion...
...Arkansas Board of Education, was neither farce nor drama...
...Though hardly necessary to reach his decision, Overton also analyzed the "entanglement" issue, the third factor courts consider when confronted with Establishment Clause questions...
...The McLean case was simply a straightforward application of this tripartite test...
...Is assuring the peace of mind of Fundamentalists worth this loss...
...You may find the Amish to be a very attractive sect, and you may judge Fundamentalism to be a bunch of hogwash...
...Three strikes and you're out...
...Like the Scopes trial in Tennessee fifty years ago, this case was cast as both high drama and low comedy...
...The clear aim of the law was to bar from the public dole persons who were too picky in accepting jobs...
...The Fundamentalists' claim that the exclusive teaching of the evolutionary theory of origins weakens their children's faith seems as compelling as the claim of the Amish couple...
...Finding that no person can be compelled to make declarations against his beliefs, the Supreme Court struck down the regulation...
...it was an attempt, albeit misconceived, to preserve the Fundamentalists' right freely to exercise their faith...
...is contrary to Amish beliefs, not only because it places Amish children in an environment hostile to Amish beliefs with increasing emphasis on competition...
...Perhaps Fundamentalists should "neutralize" the teaching of evolution in their own Bible classes and from their own pulpits, rather than require the state to give special treatment to their children...
...but the point of the Religion Clauses is that such assessments are not constitutionally cognizable...
...Some Catholics, for example, may frown upon sex-education courses which, by instructing students in the various means of birth control, give those methods implicit approval...
...But perhaps the largest problem is that elective exemption retards the important goal of imparting scientific knowledge to our youth...
...And unlike its other activities, the state through its schools "is not merely regulating the free play of private . . . communication," claim law professors Thomas Emerson and David Haber, rather, "the government itself determines what the content of the communication shall be...
...There are several problems with elective exemption...
...Formal high school education," wrote Chief Justice Warren Burger...
...In 1923, for example, Nebraska was enforcing a law forbidding the teaching of modern foreign languages in public and private schools throughout the state...
...First, they ask if the activity has a primarily religious purpose...
...Moreover, who will decide these matters...
...I offer elective exemption only as a suggestion...
...It may not be, especially when one considers how intangible and suppositious the Fundamentalists' claim is...
...The need to monitor classroom discussion in order to uphold the Act's prohibition against religious instruction will necessarily involve administrators in questions concerning religion...
...One needn't be a scientist to realize the unneutrality of the latter approach...
...As a parent," one Arkansas woman was reported as saying, "why do I have to take evolution as a fact, and . . . every day fight that system with my child...
...For civil libertarians, these are pressing questions because, of all state activities, the American system of compulsory public education presents unique dangers to individual rights...
...its value lies, above all, in its recognition that the issue in McLean, the impulse behind Act 590, was something more than a sophistic attempt to tiptoe around the Establishment Clause...
...One simply cannot simultaneously believe that all creatures evolved from a single life-source over the course of hundreds of millions of years and, also, that God created the stars and the earth and all living things in the space of seven days...
...and progressive parents may demand an end to the wave of school-board book bannings now engulfing the nation...
...Unlike the teaching of creation science under Act 590, elective exemption from evolution classes will not foist a religious doctrine upon students who are not Fundamentalists...
...Many of these school cases - like the flag-salute and Seventh-day Adventist controversies - deal specifically with religious liberty, but they are tangled up with other rights as well...
...Any law which appears to aid a religion raises questions under the Establishment Clause...
...But brave generalizations about freedom or conformism give us little precise guidance by which to decide, in the future cases, exactly what is left at the schoolhouse gate and what is not...
...And those questions cluster around the Free Exercise Clause, which enshrines that goal of religious liberty for which the Establishment Clause is merely a means...
...Although Fortas admitted that the schoolroom is not the First Amendment equivalent of a soapbox at Hyde Park, his emphasis was clear...
...Because "both the concepts and wording" of the Act "convey an inescapable religiosity," Overton easily found a primarily sectarian effect: "The facts that creation science is inspired by the Book of Genesis" and that the Act "is consistent with a literal interpretation of Genesis leaves no doubt that a major effect of the Act is the advancement of particular religious beliefs...
...In 1969, three Iowa students were suspended for wearing black armbands in protest against the Vietnam war...
...But the case, McLean...
...The difficulty is understandable...
...It did not sink to farce because the creationists had more compelling arguments than most observers realized, and it did not rise to drama because, although great principles were at stake, they were couched in poorly phrased questions which, predictably, received only inconsequential answers...
...the armbands were political statements - a sort of symbolic speech - and as such were protected...
...And so it is no surprise that Fundamentalists are angry at this loss of control over the education of their young...
...The third question is the practical one of "entanglement...
...Regardless of the purpose and effect of the activity, are its mechanisms such that the state will become embroiled with religious groups and issues...
...On its own terms, McLean was an important case...
...Insuring peace of mind by suppressing science seems comparatively less compelling...
...It can hardly be argued," Fortas pronounced, "that either students or teachers shed their constitutional rights at the schoolhouse gate...
...A better solution to the Fundamentalists' dilemma is elective exemption, by which parents who object to the instruction of their children in Darwinism can have their children excused from classes in which that theory is taught...
...In short, creation science is a sham, a sophomoric attempt to sneak a religious doctrine into the public schools...
...The recently deceased former Justice Abe Fortas held such disciplinary actions to be unconstitutional...
...Creation science, according to its espousers, holds that the world and its species began in an unspecified cataclysm between 6,000 and 20,000 years ago, and that the many species on earth did not evolve from a single primitive life-form but rather arose separately...
...Although it is certainly true that Fundamentalists have unjustly and illogically made Charles Darwin a scapegoat for all they perceive as wrong with the morally relativistic modern world, it is no less true that the Fundamentalist doctrine of creation is bluntly contradicted by Darwinism...
...Because educators cannot practically give advance notice of every mention of evolution, perhaps the option of exemption should be limited to the core presentation of Darwin's theory...
...Under a program of state textbook aid to parochial schools, for example, will the government be called upon to screen schoolbooks to decide if they are secular enough to be subsidized by the state...
...If the Supreme Court can find a way to protect the Amish, do the Fundamentalists deserve any less...
...ACT 590, the law challenged in McLean, required public school teachers in Arkansas to give a "balanced treatment" of creation science and evolution...
...The second question is the "effects" test...
...But before applying that test federal judge William R. Overton first had to decide whether "creation science" was a bona fide science or merely religion parading as such...
...Or, as William O. Douglas might have argued, each child...
...But it is for the issues raised but not resolved that McLean will be remembered...
...In 1963 j for example, the South Carolina Employment Security Commission had what it thought was a good and sensible rule: South Carolinians who refused jobs requiring that they work on Saturdays would be denied unemployment benefits...
...To be sure, McLean was not a trivial decision, especially for those properly worried about the attempts of the Moral Majority to bulldoze the wall separating church and state...
...But the Constitution's framers-for famous historical reasons-knew that a good, second way to secure that liberty was to prohibit any governmental favoritism toward religion...
...The principal and professional staff of each school...
...The best way to define creation science is the best evidence that it is not a science at all: it is an amalgam of assertions whose only common denominator is their consistency with a literal interpretation of the Genesis story of creation...
...Will we become a nation of spiritually secure ignoramuses...
...Whether the participants in Little Rock knew it or not, this was the daunting question being batted about in Judge Overtoil's courtroom: How do we reconcile the America of the melting pot, the assimilator of all who come to her shores, with the America which prides itself as a hectic, diverse, disordered land, where people respect the right to be free, to be strange, to be wrong...
...The Free Exercise Clause usually protects people only from concrete interference with their faiths...
...Writing in the Yale Law Journal in 1978, Bird judged that "the potential impact on free exercise from exclusive public school presentation of the general theory [of evolution] would appear to be very widespread and substantial...
...The protected good in this case is the second, or Free Exercise, clause, which secures for Americans the right to pursue their spiritual inclinations without governmental interference...
...But surely there must be some way to accommodate the Fundamentalists...
...the Seventh-day Adventist from South Carolina, for example, lost her money - her unemployment check - because of the conflict between her religion and state law...
...Who knows where socialization of America's children stops and impermissible standardization begins...
...I think these characterizations are unfair...
...Although a free and public education may be a bulwark of democracy and a ladder of social mobility (though there are those who disagree: see the writings of John Holt, Ivan Illich, and Herbert Kohl, for example), its hazards are formidable...
...prohibiting the free exercise thereof...
...How much should the schoolroom be a miniature marketplace of ideas with the students free to choose...
...Obviously, evolution, does not necessarily entail atheism: an inventive God could easily have set in motion the mechanism of natural selection, and evolution says nothing about how the primeval muck from which life began was itself created...
...A federal court, acting in the name of the Constitution...
...More than fourteen million individuals in the nation are adherents of religions that explicitly teach special creation...
...The prevailing theme" of newspaper editorials on the subject, wrote Gene Lyons in Harper's, "was that the thoughtless bozos of the legislature had again made Arkansas a national joke...
...Moreover, prudence requires that people of all faiths empathize with the Fundamentalist predicament...
...How much controversy do we desire in our educational scheme...
...Act 590 was a defensive maneuver...
...FUNDAMENTALISM & THE FIRST AMENDMENT The creationism controversy: the social stakes FRANCIS J. FLAHERTY TO THE RELIEF and acclaim of liberals, a federal judge in Little Rock struck down Arkansas's "creation science" law in the first week of 1982...
...The city of Little Rock...
...Each elected school board...
...To what extent, that is, should the conditions of free debate which we regard as indispensable to the health of the public forum be carried over into the school...
...Bruce Ennis, who helped conduct the case for the American Civil Liberties Union, called the controversy ' 'one of the most important First Amendment cases to be held...
...Socialization of our youth performs no less a task than the perpetuation of our culture, yet standardization of our youth flies in the face of a basic, distinguishing feature of that culture: the right to be different...
...These are all tough questions upon which reasonable people can differ...
...This measure, passed in a flurry of misguided patriotism during World War I, was clearly aimed at persons of German descent...
...Because public education is coerced, because that coercion is exercised by the state, the courts give especially sharp scrutiny to free-exercise claims which arise in the public schools...
...What if people claim that instruction in astronomy or history violates their religious rights...
...Does the law or activity have as its main effect the advancement of religion...
...THE FIRST AMENDMENT, as applied to the states through the Fourteenth Amendment, commands that the states "shall make no law respecting an establishment of religion, or Francis Flaherty, a reporter for the National Law Journal, has previously written on abortion and the Constitution in these pages...
...The courts have tussled with this issue for generations...
...A more recent case elicited a similarly heroic declaration from the Court...
...To commemorate the centenary of Darwin's Origin of Species, the University of Chicago Law School in 1960 published a trio of articles on the Scopes trial...
...Religious liberty, if it means anything, means the right to be stupid as well as inspired in matters of the spirit...
...The goal, then, is religious liberty for all Americans, and the Free Exercise Clause directly provides that right...
...but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life...
...As IF THE complexity of the Fundamentalists' religious claims were not enough, McLean raises a host of equally perplexing issues having nothing to do with religion...
...Where Mr...
...Overton applied the three-part Establishment Clause test and flunked the law on all counts...
...Like this Amish couple in Wisconsin, the Fundamentalists in Arkansas are simply claiming the right not to have their children standardized by the state...
...There is a precedent: the Texas Education Code (and those of several other states) provides that "although physiology and hygiene must be taught in all public schools, any child may be exempted, without penalty, from receiving instruction therein" if such instruction would "conflict with the religious teachings" of the church to which the family belongs...
...State entanglement with religion is inevitable under Act 590," Overton declared...
...State aid to parochial schools and religious exercises in public schools are two examples...
...At stake, the participants urged, were such weighty principles as academic freedom, the separa-tin of church and state, and Arkansas's right to teach its children as it saw fit...
...As to the purpose of the law, Overton found "no evidence" that lobbyists for the bill "were motivated by anything other than their religious convictions...
...Bird went astray was in his choice of remedy for the "widespread and substantial" problem he perceived...
...As a central organizing principle of modern science and history, Darwinism informs many school subjects...
...Once Overton declared creation science a religion, Act 590 didn't have a prayer...
...The Arkansas legislature...
...In 1943, for example, agroup of Jehovah's Witnesses objected to West Virginia's requirement that they salute the flag each morning...
...But evolution very much undermines Fundamentalism, because followers of that faith subscribe to the literal meaning of Genesis...
...A second problem is the relationship between parents and children: Should parents, for example, be permitted to force exemption upon an unwilling child...
...Respect for pluralism dictates leaving leeway to local school districts, or to single schools, to individual parents, or to individual students - all of which, it must be pointed out, may be at odds with one another...
...Hispanics may desire bilingual education...
...The unscientific nature of creation science, coupled with the remarkable coincidences between the tenets of creation science and Genesis, led Overton to judiciously note "the pervasive nature of religious concepts" in Act 590...
...It prevented an intellectual fraud from being perpetrated in our science classrooms...
...Each set of parents...
...Effective socialization seems to demand that the schools reflect some degree of consensus on social and moral issues and, therefore, that decisions be made at a higher level...
...His suggestion - incorporated into Act 590 - was that states should "neutralize" Darwinism by also requiring public schools to teach creation science...
...Bible reading in public schools, for example, clearly has a religious aim, while a good case can be made that state aid to parochial schools has primarily an educational purpose...
...It preserved the integrity of the Establishment Clause at a time when seventeen states are considering legislation similar to Act 590 and Louisiana has already passed such a law...
...WHETHER OR NOT the setting of the case is a school, the courts have been sensitive to free-exercise claims...
...The Supreme Court struck down the law, pointedly noting that it was predicated upon an "aversion toward every characteristic of truculent adversaries...
...wrote Chicago law professor Harry Kalven...
...True science asks: "What theory of origins best accords with the facts...
...It seems anintractable problem because the dangers and the desiderata of public education loom equally large...
...But outside the courtroom the case gave the giggles to much of the country: led by slick electronic churchmen, the benighted yahoos of Arkansas seemed to be trying - and not for the first time - to secede from the twentieth century...
...The impulse which gave rise to Act 590 is the strong belief of Fundamentalists - who number in the millions - that the exclusive teaching of evolution in public schools undermines the faith of their children...
Vol. 109 • October 1982 • No. 18
