Haley Boyer

Law and Religion; Interterm 2018

Research paper

Evolution vs. Creationism in Public Schools

The conflict between creationists and pretty much the rest of the public school

goers has been waging for a multitude of decades now. It’s evolved too, as it’s

continued. From straight biblical teachings to ‘creation science’ and ‘intelligent design’,

the courts have weighed in multiple times on this issue since the 1920’s. The courts, like

myself, believe that creationism is unconstitutional, and have laid out arguments why,

as I shall attempt to do in a logical, chronological manner.

“​The religious movement known as Fundamentalism began in nineteenth century

America as part of evangelical Protestantism's response to social changes, new

religious thought and Darwinism. Fundamentalists viewed these developments as

attacks on the Bible and as responsible for a decline in traditional values.” (Mclean v.

Arkansas)​ Fundamentalists believe in the inerrancy and literal interpretation of the Bible.

Creationism developed from this Fundamentalism movement. Creationists can be

divided into several categories, including Old Earth, New Earth, and Intelligent Design

Creationists (Austin Cline). Most of these categories are relatively self-explanatory,

however Intelligent Design is one of the newer aspects of creationism that simply
believe the design of nature implies a designer. The main political action taken by this

movement is to promote the teaching of creationism in public schools.

Of the back and forth between creationists and the scientific community, the first

conflict came to a head in 1927 with State of Tennessee vs. John Thomas Scopes. This

court case was in response to the Tennessee Butler Act of 1925, which outlawed “the

teaching of any theory that denies the story of the Divine Creation of man as taught in

the Bible, and to teach instead that man has descended from a lower order of animals.”

(Butler Act) John Scopes was a teacher accused of teaching evolution in his classroom.

After a very public trial, Scopes was convicted, and fined $100 dollars. However the

conviction was overturned in that the judge had decided the fine, instead of the jury.

(Douglas O. Linder) However, the law remained constitutional, Justice Grafton Green

writing, “​We are not able to see how the prohibition of teaching the theory that man has

descended from a lower order of animals gives preference to any religious

establishment or mode of worship.”

However that all changed in 1968 with the Supreme Court case Epperson v.

Arkansas. This case was a response to an Arkansas statute fashioned after the

Tennessee Butler Act, outlawing “to teach the ​99*99​ theory or doctrine that mankind

ascended or descended from a lower order of animals," or "to adopt or use in any such

institution a textbook that teaches" this theory.” (Epperson v. Arkansas) High school

biology teacher Susan Epperson took it to court. The court ruled it unconstitutional,

saying “Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did

not seek to excise from the curricula of 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. Plainly, the law

is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to

the Constitution.” They state earlier in their opinion “Government in our democracy,

state and national, must be neutral in matters of religious theory, doctrine, ​104*104​ and

practice. It may not be hostile to any religion or to the advocacy of no-religion; and it

may not aid, foster, or promote one religion or religious theory against another or even

against the militant opposite. The First Amendment mandates governmental neutrality

between religion and religion, and between religion and nonreligion.” (Epperson v.

Arkansas) This was a major win for the scientific community, and for taxpayers

everywhere. Teaching creationism was unconstitutional! However, a concurring judge,

Justice Black, had questions on the decision. “ A second question that arises for me is

whether this Court's decision forbidding a State to exclude the subject of evolution from

its schools infringes the religious freedom of those who consider evolution an

anti-religious doctrine… Since there is no indication that the literal Biblical doctrine of

the origin of man is included in the curriculum of Arkansas schools, does not the

removal of the subject of evolution leave the State in a neutral position toward these

supposedly competing religious and anti-religious doctrines? Unless this Court is

prepared simply to write off as pure nonsense the views of those who consider evolution

an anti-religious doctrine, then this issue presents problems under the Establishment

Clause far more troublesome than are discussed in the Court's opinion.”
 However, as time passed, Creationism evolved just like its scientific counterpart.

Creationist organizations began to emerge, with the mission of accumulating scientific

evidence for creationism. They coined terms like “creation science” and set out again to

weasel their religious doctrine into the world of public education. This conflict reached

another peak in 1982 with Mclean v. Arkansas. This was a response to Arkansas Act

590 of the previous year, which required “balanced treatment” to evolution and “creation

science” (Arkansas Act 590). The plaintiffs argued the constitutional invalidity on three

grounds; most importantly the establishment clause, but also the right to academic

freedom guaranteed through freedom of speech and Due Process of the 14th

amendment (Mclean v. Arkansas). The Lemon Test was used to judge this case, with its

three prongs of; secular government interest, primary effect is not to advance or inhibit

religion, and not fostering excessive entanglement between religion and government.

For the first prong, the court said “It was simply and purely an effort to introduce the

Biblical version of creation into the public school curricula,” stating “The Act therefore

fails the first prong of the three-pronged test, that of secular legislative purpose.”( pg

1264) For the second prong, the courts stated after significant investigation into the

validity of creation science, that “Since creation science is not science, the conclusion is

inescapable that the ​only​ real effect of Act 590 is the advancement of religion. The Act

therefore fails both the first and second portions of the test.” (pg 1272) The third prong

of the Lemon test is excessive entanglement. After considering the fact that state

officials would be needed to screen textbooks, and monitor classrooms, the court said

“These continuing involvements of State officials in questions and issues of religion

create an excessive and prohibited entanglement with religion.”(pg 1272) Therefore this

statute did not only fail the Lemon test, but it failed every single prong of the test,

making it completely and unequivocally unconstitutional. However the argument is more

complicated than just this. The defense argued that creation science is a science, and

has footing in the public school arena on that ground, forcing the court to come up with

five essentials aspects to science. These aspects are; it is guided by natural law, it is

explanatory by reference to natural law, it is testable against the empirical world, its

conclusions are tentative, and it is falsifiable. (pg 1267) Creation science, as it was

defined in Arkansas Act 590, failed to meet all of these criteria. The Court states that

“The creationists' methods do not take data, weigh it against the opposing scientific

data, and thereafter reach the conclusions stated in Section 4(a). Instead, they take the

literal wording of the Book of Genesis and attempt to find scientific support for it.” (pg

1269) When the defense failed to win this aspect of the argument, they then argued that

evolution is a religion as well, and so to avoid a violation of the establishment clause,

their religion must also be taught. The Court responded with “Assuming for the

purposes of argument, however, that evolution is a religion or religious tenet, the

remedy is to stop the teaching of evolution; not establish another religion in opposition

to it. Yet it is clearly established in the case law, and perhaps also in common sense,

that evolution is not a religion and that teaching evolution does not violate the

Establishment Clause.” (pg 1274) The closing opinion on this case by Justice

Frankenfurter best describes my own thoughts on the case. “"We renew our conviction

that `we have staked the very existence of our country on the faith that complete
separation between the state and religion is best for the state and best for religion.'

Everson v. Board of Education,​ 330 U.S. at 59 [67 S.Ct. at 532]​. If nowhere else, in the

relation between Church and State, “good fences make good neighbors.” (pg ​1274)

This standing stood for quite some time, but again, the world of creationism

evolved. This time however the new term was ‘intelligent design’, not naming a creator,

but using the statement of a design to imply a designer. The court case was Kitzmiller v.

Dover Area school district in 2005. I will not go into such legal investigation this time, but

the court said merely this, “​The proper application of both the endorsement and ​Lemon

tests to the facts of this case makes it abundantly clear that the Board's ID Policy

violates the Establishment Clause. In making this determination, we have addressed the

seminal question of whether ID is science. We have concluded that it is not, and

moreover that ID cannot uncouple itself from its creationist, and thus religious,

antecedents….. The breathtaking inanity of the Board's decision is evident when

considered against the factual backdrop which has now been fully revealed through this

trial. 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.” (Kitzmiller v Dover pg 765)

Now, there are two anti-evolution acts in place, the Louisiana Science Education

Act of 2008, and Tennessee’s House Bill 368 of 2012. The Louisiana Act does nothing

more than allow supplemental materials in science classrooms, even having a clause

stating that “This Section shall not be construed to promote any religious doctrine,

promote discrimination for or against a particular set of religious beliefs, or promote

discrimination for or against religion or nonreligion.” (Louisiana Education Act) The act

states the main purpose to be “to create and foster an environment within public

elementary and secondary schools that promotes critical thinking skills, logical analysis,

and open and objective discussion of scientific theories being studied including, but not

limited to, evolution, the origins of life, global warming, and human cloning.” (pg 1) The

Tennessee bill is very similar, designed “students develop critical thinking skills

necessary to becoming intelligent, productive, and scientifically informed citizens.” (HB

368) the religion clause is almost identical, stating “ This section only protects the

teaching of scientific information, and shall not be construed to promote any religious or

non-religious doctrine, promote discrimination for or against a particular set of religious

beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.”

(pg 2) I, like any person reading these acts with no knowledge of the community or

intended implementation, would accept these bills at face value. Who doesn’t want to

foster critical thinking skills in themselves and others? However, there are certainly

criticism of this bill, saying its a backdoor for creationism to be taught in schools. There

is evidence of the of the first act being pushed by the Louisiana Family Forum, a

conservative Christian Group in the area. And a critic of creationism said, “you don’t

need a bill for critical thinking, you need one for creationism.”

Of course there are growing responses to this conflict on the evolution side as

well. The parody religion of pastafarianism began as a response to the Kitzmiller v

Dover Area School District case. Bobby Henderson wrote an open letter to the School

Board claiming the existence of a flying, invisible spaghetti monster that created the
world to look older than it was. This was of course a satire created to object the

teaching of creationism in schools, to play on the equal role of religions. However a

flying spaghetti monster is, naturally, a little ridiculous, and points out the hypocrisy of

advocating creationism. The unique thing about the church of the Flying Spaghetti

Monster is that the parody is almost complete under the religious criteria established in

U.S v Meyers. These criteria are; ultimate ideas, metaphysical beliefs, moral or ethical

system, comprehensiveness of beliefs, and accoutrement of religion, which is a founder

or teacher, gathering places, important writings, keepers of knowledge, ceremonies and

rituals, holidays, structure and organization, diet, appearance and clothing, and

propagation. (U.S v Meyers) And while it might seem a little ridiculous, the church of the

Flying Spaghetti Monster actually has most of these aspects. They have Bobby

Henderson as a founder, a metaphysical belief in an invisible undetectable flying

creator, the 8 “I’d really rather you didn’t”’s, and many of the accoutrements, like their

important writing of the Gospel of the Flying Spaghetti Monster, their holy days of friday

evenings, their diet of spaghetti, and their appearance of wearing a colander on their

head. In fact, this parody is such a thorough satire religion that people are actually

winning the right to wear colanders on their head in drivers license photos. (BBC news)

However the church isn’t against religion itself. The website states “​we are not

anti-religion, we are anti- crazy nonsense done in the name of religion. There is a

difference.”

Where is the middle ground? Is there just destined to be an eternal conflict

between evolution and religion? Will there never be a solution? In 1950 Pope Pius XII
proposed the compromise that evolution and biblical creation are not necessarily

mutually exclusive. Item 36 states “​ ​For these reasons the Teaching Authority of the

Church does not forbid that, in conformity with the present state of human sciences and

sacred theology, research and discussions, on the part of men experienced in both

fields, take place with regard to the doctrine of evolution, in as far as it inquires into the

origin of the human body as coming from pre-existent and living matter - for the Catholic

faith obliges us to hold that souls are immediately created by God.” (Humani Generis)

Pius XII did explore limits to the compatibility of these two ideas, and issued an order for

evolution not to be taught in ecclesiastical schools.

Another promoter of compromise would be leading biologist Stephen Jay Gould,

and his idea of non-overlapping magisteria. His argument is that religion and science

really don’t have any dominion over the same things. He says “the lack of conflict

between science and religion arises from a lack of overlap between their respective

domains of professional expertise- science in the empirical constitution of the universe,

and religion in the search for proper ethical values and the spiritual meaning of our

lives,”(non overlapping magisteria pg 2) and “no such conflict should exist because

each subject, has a legitimate magisterium… and these magisteria don’t overlap.”(pg 3)

The attainment of wisdom in a full life requires extensive attention to both domains.” (pg

2) However he acknowledges the existence of both magisteria do cause problems, that

they “bump right up against each other, interdigitating in wondrously complex ways

along their shared border.” (pg 4) But he finishes on a hopeful note, saying “NOMA
permits-indeed enjoins- the prospect of respectful discourse, of constant input from both

magisteria toward the common goal of wisdom.” (pg 7)

So where are we now? We have explored the legality of both sides, and the

middle ground. Evolution with its legal protection of the establishment clause, the

freedom of education, and the lack of a compelling secular government interest.

Creationism has weathered well, with its claims of free exercise. One has to admire the

pure tenaciousness of the group, as well. When creation science failed, intelligent

design was developed. When creationism was declared an illegitimate science, they

argued that evolution is a religion. Their adaptability at the very least must be

commended. I will join Stephen Jay Gould in his notion of non-overlapping magisteria. I

discussed this topic with my father, who is a protestant who believes in evolution, that

God guided the hand of nature. I see no reason why both cannot coexist, as people look

to them for different reasons. Myself, an academic at heart, look toward the scientific

community first, to what I might perceive as fact. But right and wrong cannot be

determined by fact. They originate from within one’s self, and from those closest. That,

is the role of religion, even in the paradigm of law. Professor Geitner has stated that

even in legal courts in the U.S, Confucism quotes are used by judges as justifications as

irrefutable statements of morality. That being said, it cannot be denied that apparently,

evolution being taught in public schools appears to be of conflict of some kind, even

only in a small branch of protestantism. And so, now that we have explored all sorts of

opinions on the matter, should evolution be taught in schools? Should creationism? I

might begin by saying that I have no issue with religions being taught in school. I myself
am a religious studies minor, though it is possible that the credit load would be too much

on top of an english minor and a music major. Religion absolutely has a place in the

academic classroom, as one of my classmates pointed out in her presentation, that if

different religions were taught more widely, we wouldn’t have to breach this gap of

ignorance that breeds sentiments like Islamophobia, or have people calling the police

on kirpans. However, what I do have a problem with is religious doctrine being taught as

fact. It is my opinion that things of religious origin should remain strictly in a religious

classroom, or a history classroom. As Justice Jones said in Kitzmiller v. Dover Area

School District, “We have concluded that it is not [science], and moreover that ID cannot

uncouple itself from its creationist, and thus religious, antecedents.” Creationism is at its

heart, a religious doctrine, and despite all the claims creationists have made, the

Supreme Court has ruled both creation science and intelligent design illegitimate

sciences, saying “[the act] was simply and purely an effort to introduce the biblical

version of creation into the public school curricula.” (Mclean v. Arkansas) And while their

terminology has changed, their origins, and intentions, have not. There remains little

scientific backing for their claims, and as it is they are trying to twist the facts to support

their theory. As Sherlock Holmes famously said, “insensibly one begins to twist facts to

suit theories instead of theories to suit facts.” There is more than one theory to the origin

of life on this planet, and evidence that doesn’t support what we understand about

evolution doesn’t necessarily support creationism. Evolution is a theory now widely

supported by the scientific community, that is based on scientific data. The theory was

developed based on the data gathered, not presented before there was any data to
support it. The free exercise right of creationists doesn’t give them to right to forcibly

shove their religious doctrine down the throats of students who should be learning how

to think logically and critically. Creationism, while having its own merit of study, has no

place in a scientific classroom. I will let Lawrence Krauss have the last word, “Evolution

is the basis of modern biology, and if a lot of people don’t believe it, it only means we

have to do a better job teaching it.”

The Editors of Encyclopædia Britannica. “Creationism.” ​Encyclopædia Britannica​,

Encyclopædia Britannica, Inc., 10 Mar. 2017, ​www.britannica.com/topic/creationism​.

Cline, Austin. “What Types of Creationism Exist?” ​ThoughtCo​, 8 Mar. 2017,

www.thoughtco.com/types-of-creationism-249739.

https://ncse.com/files/pub/legal/Scopes/Butler_Act.pdf​ (Tennessee Butler Act

1925)

“Monkey Trial Begins.” ​History.com​, A&E Television Networks, Oct. 7ADAD,

www.history.com/this-day-in-history/monkey-trial-begins.
 Linder, Douglas O. “State v. John Scopes (‘The Monkey Trial’): An Account.” ​Famous Trials,​

www.famous-trials.com/scopesmonkey/2127-home​.

https://scholar.google.com/scholar_case?case=15294019960718746276&q=+Scopes+v.+State,+15

4+Tenn.+105,+1927&hl=en&as_sdt=1ffffffffffffffffffffffffffffffffe000000000000001f000001ffffffecfff87fe3

fffffff00108008000000000004​ (​Epperson v. Arkansas, 393 US 97 - Supreme Court 1968)

http://www.antievolution.org/projects/mclean/new_site/legal/act_590.htm​ (Arkansas Act 590)

https://scholar.google.com/scholar_case?case=16465861447416053365&q=kitzmiller+v+dover+are

a+school+dist&hl=en&as_sdt=2006​ (Kitzmiller v. Dover Area School District ., 400 F. Supp. 2d 707

- Dist. Court, MD Pennsylvania 2005)

https://ncse.com/files/08_la_sb733-amend.pdf​ (Louisiana Science Education Act)

http://www.capitol.tn.gov/Bills/107/Bill/HB0368.pdf​ (Tennessee House Bill 368)

http://caselaw.findlaw.com/us-10th-circuit/1074566.html​ (U.S v. Meyers)

https://www.venganza.org/about/open-letter/​ (open letter from Bobby henderson to school board)

https://www.venganza.org/about/​ (Pastafarianism website)

“Austrian Driver Allowed 'Pastafarian' Headgear Photo.” ​BBC News,​ BBC, 14 July 2011,

www.bbc.com/news/world-europe-14135523​.
http://meissinger.com/uploads/3/4/9/1/34919185/gould_noma.pdf​ (non overlapping magesteria

pdf Steven Jay Gould)

Pius XII . “Humani Generis .” ​Humani Generis ,​ Vatican , 12 Aug. 1950,

w2.vatican.va/content/pius-xii/en/encyclicals/documents/hf_p-xii_enc_12081950_humani-gen

eris.html.

Krauss, Lawrence, director. ​Teaching a Child Creationism Is Child Abuse​. Youtube, 4 Feb.

2013, ​www.youtube.com/watch?v=UTedvV6oZjo​.