Equal Time for Creation and Evolution

Undoing Scopes. By the early 1960s, evolution was returning to science textbooks and classrooms after largely having been absent since the 1930s. It is not coincidental that Whitcomb and Morris's The Genesis Flood was published in 1961 and that the ICR was founded a few years later: the increased exposure of public school students to evolution was a cause for alarm among conservative Christians. In Arizona, opposition to the use of BSCS books in the Phoenix school district stimulated state legislators to introduce legislation that would require "equal time and emphasis to the presentation of the doctrine of divine creation, where such schools conduct a course which teaches the theory of evolution" (the legislation did not pass) (Larson 2003: 97). But the renewed textbook emphasis on evolution generated conflicts in states with antievolution laws for teachers who wished to teach modern science but who would thereby break the law.

In 1965, Arkansas was one of the few remaining states with Scopes-era antievolution laws still on the books (the others were Tennessee, Louisiana, and Mississippi [Larson

1997]). In that year, the Arkansas Education Association (AEA) decided to challenge the state's antievolution law, partly because the presence of evolution in textbooks put teachers on a collision course with the law. Rather than a Scopes-style teacher defendant who would be prosecuted for breaking the law, the AEA instead challenged the law itself with a teacher-plaintiff who sought to legally teach evolution (Moore

1998). Arkansas teacher Susan Epperson argued that the Arkansas antievolution law was unconstitutional because it violated her freedom of speech, and a co-plaintiff, a father of a student, argued for the right of the student to learn the banned subject. The trial itself was very short, taking only about two hours; the judge ruled that the antievolution law was unconstitutional. To the surprise of Epperson and the AEA, the Arkansas Supreme Court reversed the lower court in a two-sentence decision in 1967.

The case was appealed to the U.S. Supreme Court, which ruled in 1968 in Epperson v. Arkansas that the antievolution law was unconstitutional because it "selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine." The First Amendment requires schools to be neutral toward religion; to ban a subject (evolution) because a religious view (fundamentalism) finds it objectionable violates the Establishment Clause of the First Amendment. Finally, in 1968, forty-three years after the Scopes trial, it was unlawful to ban the teaching of evolution.

Epperson had more of a psychological effect on antievolutionism than an actual one, as the Arkansas and other antievolution laws had hardly ever been enforced (Larson 2003). But if evolution could not be banned, how could children be protected from it? Keeping evolution out of the classroom was obviously not possible, as evolution was widely included in textbooks. Teaching the Bible along with evolution was one solution.

"Neither Advances nor Inhibits Religion". In 1963, the Supreme Court struck down laws requiring prayer in public schools (Abington School District v. Schempp). The First Amendment of the U.S. Constitution sets forth freedoms of religion, speech, and assembly. The Religion Clause reads, "Congress shall make no law respecting the establishment of religion, nor inhibiting the free exercise thereof." The Establishment Clause prohibits the state from promoting religion, and the Free Exercise Clause prohibits the state from inhibiting or restricting religion. In Schempp, the justices clearly stated the requirement for religious neutrality in the public schools, stating that "to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."

William Jennings Bryan had argued that neutrality consisted of teaching neither evolution nor creationism in the schools: antievolution laws removed evolution from the curriculum so that students would not be exposed to what some considered an antireligious doctrine. As evolution returned to textbooks and to the curriculum, creationists protested that the classroom was no longer neutral. To restore neutrality, they argued, both evolution and creationism should be taught. Even before the Epperson decision struck down antievolution laws, parents Nell Segraves and Jean Sumrall petitioned the California Board of Education in 1963 to restore neutrality to the classroom by adding creationism to the curriculum if evolution were taught.

A Movement Builds. Henry Morris's original approach to promoting creation science was to reach out to the scientific and educational communities: Morris conceived of the ICR as a research and educational institute that eventually would persuade the academic community of the value of creation science. He believed that after scientists, educators, and the public understood creation science, the subject would trickle down to school science curricula. Other creationist organizations (such as Nell and Kelly Segraves's Creation Science Research Center) sought to promote creationism through political action; Morris, perhaps because of his background as a former college professor, preferred to work through education (Numbers 2006).

Scientists and educators, however, ignored creation science. The top-down approach wasn't working, so ICR shifted its strategy toward the grass roots. Although never embracing the Creation Science Research Center's approach of filing lawsuits to force the teaching of creationism, the ICR nonetheless encouraged citizens to take an active role in promoting creation science at the local level. In ICR's publication Impact, the lawyer Wendell Bird encouraged local citizens to present school boards with "resolutions" encouraging the teaching of creation science in science curricula (Bird 1979).

The model resolution laid out the definition of creation science: "special creation from a strictly scientific standpoint is hereinafter referred to as 'scientific creationism'" (Bird 1979: ii). It claimed that the presentation of only evolution in the classroom "without any alternative theory of origins" was unconstitutional "because it undermines their [students'] religious convictions," it would require students to attest to course materials they did not believe in, and it "hinders religious training by parents" (Bird 1979: ii). The resolution claimed that evolution-only teaching would promote belief systems such as "religious Liberalism, Humanism, and other religious faiths." It claimed that the "theory of special creation is an alternative model of origins at least as satisfactory as the theory of evolution and that theory of special creation can be presented from a strictly scientific standpoint without reference to religious doctrine" (Bird 1979: ii). School districts were then urged to give "balanced treatment to the theory of scientific creationism and the theory of evolution" in all aspects of the curriculum, including classroom time, textbook contents, and library materials.

Even before the ICR model resolution appeared, the conservative Christian layman Paul Ellwanger had submitted his own resolution to the Anderson, South Carolina, school district, proposing a "balanced treatment of evolution and creation in all courses and library materials dealing in any way with the subject of origins" (Institute for Creation Research, 1979: ii). Feedback between the Ellwanger and the ICR resolutions resulted in Ellwanger preparing sample legislation for districts or states to pass.

The legislation presented two alternative—and allegedly scientifically equivalent— views of "origins": evolution science and creation science, both of which should be taught to maintain a "balanced" curriculum. If evolution were taught, schools would be required also to teach creation science. Inspired by his efforts, a movement began to introduce Ellwanger bills in state legislatures. The late 1970s campaign to promote equal time for creation science legislation was truly a grassroots effort in the classic American tradition. The campaign spread largely by word of mouth and did not yet have the blessing or resources of national religious denominations or religiously oriented political organizations such as the Moral Majority. Although legislators in Ellwanger's home state of South Carolina failed to pass an Ellwanger bill, legislation soon began appearing in other states.

By the early 1980s, equal time legislation had been introduced in at least twenty-seven states, including Alabama, Colorado, Florida, Illinois, Indiana, Iowa, Louisiana, Missouri, Nebraska, Oklahoma, Oregon, South Carolina, Texas, and Washington (Moyer 1981: 2), Georgia, Kentucky, Minnesota, New York, Ohio, Tennessee, West Virginia, and Wisconsin (American Humanist Association 1981: back cover), Maryland (Weinberg 1981b: 1), Arkansas (Weinberg, 1981a), Mississippi, Arizona, and Kansas (Weinberg 1982: 1). All died in committee, except for those in Arkansas and Louisiana. Many scientists and educators were involved in campaigns to prevent the passage of equal time legislation. Creation science finally was receiving attention from scientists, though not the kind Henry M. Morris had desired.

McLean v. Arkansas. That Arkansas in 1981 was the first state to pass a creation and evolution equal time bill has an ironic twist: as discussed earlier in this chapter, in 1968, Arkansas had been the site of the Supreme Court case that struck down Scopes-era antievolution laws. Now it was to be in the spotlight again as the site of the first challenge to equal-time legislation. Arkansas Act 590 proposed "balanced treatment" for "evolution-science" and "creation-science," defining creation science as follows:

1. Sudden creation of the universe, energy, and life from nothing;

2. The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism;

3. Changes only within fixed limits of originally created kinds of plants and animals;

4. Separate ancestry for man and apes;

5. Explanation of the earth's geology by catastrophism including the occurrence of a worldwide flood; and

6. A relatively recent inception of the earth and living kinds.

The act defined evolution science as follows:

1. Emergence by naturalistic processes of the universe from disordered matter and emergence of life from nonlife;

2. The sufficiency of mutation and natural selection in bringing about the development of present living kinds from simple earlier kinds;

3. Emergence by mutation and natural selection of present living kinds from simple earlier kinds;

4. Emergence of man from a common ancestor with apes;

5. Explanation of the earth's geology and the evolutionary sequence by uniformitarian-ism; and

6. An inception several billion years ago of the earth and somewhat later of life.

According to Act 590, to present only evolution in the schools would create a hostile climate for religious students, undermining "their religious convictions and moral or philosophical values" and violating "protections of freedom of religious exercise and of freedom of belief and speech for students and parents" (Anonymous 1983: 18). Teaching only evolution was held to be a violation of academic freedom "because it denies students a choice between scientific models and instead indoctrinates them in evolution-science alone" (Anonymous 1983: 18). Creation science was presented as a "strictly scientific" view.

Upon passage, Governor Frank White signed Act 590, and the Arkansas ACLU immediately challenged the bill. Plaintiffs in the lawsuit included religious leaders, science education organizations, civil liberty organizations, and several individual parents. Methodist clergyman William McLean was the lead plaintiff, joined by the bishops or other spokespeople for the Arkansas Episcopal Church, the United Methodists, Roman Catholics, African Methodist Episcopalians, Presbyterians, and Southern Baptists. Also joining the suit were the Arkansas Education Association, the National Association of Biology Teachers, the American Jewish Congress, the Union of American Hebrew Congregations, the American Jewish Committee, and the National Coalition for Public Education and Religious Liberty. The presence of so many religious plaintiffs helped to defuse the argument that opposition to the bill equated to opposition to religion.

McLean v. Arkansas was tried in federal district court. The Arkansas ACLU received considerable assistance from a large New York law firm—Skadden, Arps, Slate, Meagher, and Flom—which offered its services pro bono. The Arkansas ACLU would argue that because creation science was inherently a religious idea, its advocacy as required by Act 590 would violate the Establishment Clause of the U.S. Constitution. Furthermore, because creation science was not scientific, there was no secular purpose for its teaching (Herlihy 1983). The state, defending the law, had to argue the opposite: that creation science was scientific, and thus its advocacy would have a secular purpose. The state ignored the issue of whether creation science was religious. Each side brought in witnesses to testify in favor of its position. Much time was spent in the trial over the definition of science and whether creation science fulfilled that definition.

The state was reluctant to put Henry Morris or any other ICR spokesperson on the stand, notwithstanding the prominence of these people in the creationism movement (Larson 2003: 162). Because of the Christian apologetic nature of so much of Morris's writings, the defense was unwilling to have Morris cross-examined: it would be apparent that creation science was primarily a religious view, and the state's case would be lost from the beginning. Witnesses for the defense, therefore, consisted of other less-well-known creationists and some noncreationist scientists who questioned some aspects of evolution. An example of the latter was the British astrophysicist Chandra Wickramasinghe, who argued against the standard chemical origin-of-life model. His explanation for the origin of life on Earth was not special creation, however, but a natural explanation, having to do with the seeding of life on Earth with organic molecules from comets. When questioned about creation science, he stated that "no rational scientist could believe that the earth was less than one million years old" (Holtzman and Klasfeld 1983: 95). In the aftermath of the case, creationists blamed the state attorney general for not using the "strongest advocates" ofcreation science, although such a move would have been legal suicide.

The plaintiffs assembled a cast of eminent scholars—scientists, theologians, philosophers of science, sociologists, and educators—to make the case that creation science was not science but a form of sectarian religion. Included were three members of the National Academy of Sciences, the nation's most prestigious scientific organization. Press accounts attest to the articulateness and depth of knowledge of these witnesses, and to the superiority of the Skadden, Arps lawyers in cross-examination and in the general presentation of the case. The consensus was that the defense was simply outgunned. It was so apparent to the plaintiffs that their case would be successful that lawyers and witnesses had their victory party on the third day of the trial (Ruse 1984: 338).

Indeed, when the judge issued his decision, it was in favor of the plaintiffs; Act 590 was declared unconstitutional. In a strongly worded decision (McLean v. Arkansas, 529 F. Supp. 1255), Judge William Overton relied on a 1971 Supreme Court decision, Lemon v. Kurtzman, which had established three tests to determine whether a law or practice violated the Establishment Clause. The three prongs of Lemon are the purpose, effect, and entanglement rules.

Lemon (as did the earlier Schempp case) requires that the "statute must have a secular legislative purpose"; if the legislature's purpose in passing the law was to advance religion, then the law fails (Lemon v. Kurtzman, 403 U.S. 603 at 612-613). Judge overton ruled that the legislative history of the law clearly demonstrated that the legislators intended to promote a religious view.

"Second, its principal or primary effect must be one that neither advances nor inhibits religion" (Lemon at 612). This effect prong was likewise judged to be violated by Act 590; Judge overton decided that requiring creation science to be taught would promote a sectarian religious view, because creation science was a religious view, not a science. Much of the legal decision, in fact, was devoted to showing how creation science did not meet a general definition of science accepted by practitioners.

Lemon also states that "the activity must not foster 'an excessive government entanglement with religion'" (Lemon at 613). Judge Overton ruled that because the classroom must not be a place for religious proselytization, the administration would have to monitor teachers and instructional material to guard against willing or unwitting advancement of religion.

Because the McLean decision declared so strongly that Act 590 was unconstitutional, the state declined to appeal the case to the court of appeals. Equal time for creation science and evolution had failed in Arkansas, but a law very similar to the Arkansas law had been introduced into neighboring Louisiana only a few months before the McLean decision.

The Louisiana Equal-Time Law. The law that the Louisiana legislature passed in the spring of 1981 was another Ellwanger clone, with a few modifications intended to make it more likely to pass constitutional muster. The plaintiffs in McLean had been able to show that Act 590's definition of creation science paralleled biblical literalist creationism, a similarity that figured into Judge Overton's decision to strike it down. The framers of the Louisiana law, "Balanced Treatment for Creation Science and Evolution Science in Public School Instruction," sought to mount a stronger case by not defining creation science in recognizably religious terms. Again the ACLU challenged the law in federal district court, but because proponents of the law also requested an injunction, courts had to sort out jurisdictional issues, and both cases slogged through the courts for several years. Finally the federal district court heard the case. Rather than hold a full trial, as in Arkansas, the district court tried the case by summary judgment: the judge accepted written statements from both sides and decided the outcome of the case on the basis of these documents.

In 1985, the federal district court decided that the law was unconstitutional because it advanced a religious view by prohibiting the teaching of evolution unless creationism—a religious view—was also taught. The court of appeals agreed, and finally the case made its way to the Supreme Court in 1987. The highest court concurred with the lower courts: "The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind____The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety" (Edwards v. Aguillard, 482 U.S. 578 at 591).

Equal time for creation science was no longer a legal option in the schools of the United States. Shortly after the filing of the Edwards decision, however, the creationist attorney Wendell Bird wrote an Impact pamphlet for the ICR in which he proposed the next strategy of antievolutionism: the repackaging of creation science so that it might survive such Establishment Clause challenges as had doomed it in Arkansas and Louisiana. The next stage of American antievolutionism, neocreationism, was beginning to evolve.

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