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Alfred R. Wallace
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Evolution and the Law
in the
United States of America

This article will provide a brief overview of the legal landscape...., and will attempt to explain how the abstract constitutional principles relate to both evolution and biblical creationism in the context of public schools.

      1.0      Introduction
      2.0      The Establishment Clause
      2.1      Constitutional Tests
      2.1.1   The Lemon Test
      2.1.2   The Endorsement Test
      2.1.3   The Coercion Test
      3.0      Separating Science and Religion
      4.0      Specific U.S. Supreme Court Cases
      4.1      Selected Federal Court Cases
      5.0      Public Policy Considerations
      6.0      Summary
                Appendix A

Evolution and the Law
in the
United States of America

1.0   Introduction

Since the publication of Charles Darwin's On the Origin of Species in 1859, some religious sects have attacked the fact and theory of evolution in various ways, due to its perceived conflict with the Bible, and in particular the Book of Genesis. The battle between evolution and the "creationism" of biblical literalists perhaps began in earnest in 1925, during what is now known as "the Scopes Monkey Trial." The trial of high school teacher John Scopes 1 brought into full public view a controversy over science, religion, law and education, one that unfortunately still continues today.

The controversy over teaching evolution and biblical creationism in public schools is often cast as the child of a broader ideological warfare between science and religion 2. A classroom is not, however, appropriate ground for drawing such lines in the sand, nor is it permissible for the government to extend its imprimatur to one side of the controversy. This article will provide a brief overview of the legal landscape on which these determinations are founded, and will attempt to explain how the abstract constitutional principles relate to both evolution and biblical creationism in the context of public schools.

2.0   The Establishment Clause

In order to understand the legal implications of the evolution and creationism controversy, one must first understand the underlying constitutional protections afforded to U.S. residents with regard to religious issues. The foundation for religious liberty in the United States is contained within the First Amendment to the Federal Constitution, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 3

The first ten words of the amendment are collectively referred to as the "Establishment Clause," and the next six as the "Free Exercise Clause." It is from the Courts' interpretation of these clauses that more detailed enunciations of religious freedoms are given. Note also that the First Amendment applies to the states by way of the Fourteenth Amendment,4 so that the actions of a state government are subject to the same standards applicable to the actions of the federal government.

The "free exercise" portion of the clause is conceptually uncomplicated; but the "establishment of religion" portion warrants further explanation. The U.S. Supreme Court in Everson v. Board of Education,5 synthesizing the thought of Thomas Jefferson, James Madison and other constitutional framers, described the practical meaning of the clause in unequivocal language:

"Neither a state nor the Federal Government can set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups or vice versa. In the words of Jefferson, the clause .... was intended to erect 'a wall of separation between church and state'."6

2.1   Constitutional Tests

The Supreme Court has formulated three analytical tests by which judges may evaluate claims arising under the Establishment Clause, where a particular state action is accused of being in violation. That these tests are separate (but not wholly distinct) is a source of some confusion in this area of constitutional law. The reader is cautioned that Establishment Clause jurisprudence is itself an evolving and sometimes peculiar creature.

2.1.1   The Lemon Test

The Supreme Court constructed the oldest and most often applied test in its decision in Lemon v. Kurtzman.7 In order to withstand constitutional scrutiny, a government action: (1) must have a secular purpose; (2) must have a primary purpose that neither advances nor inhibits religion; and (3) must not result in or promote excessive entanglement between government and religion.8

The first prong requires that the overall objective of the government action be genuinely or sincerely secular, taken as a whole, but does not require that objective to have no religious implications whatsoever.9 The second prong is known as the "effects test." It requires that government action have a neutral effect with regard to religion (or non-religion), meaning that the government may not appear to endorse or disapprove of any particular religion.10 The third prong analyzes entanglement by reference to the "kind and degree" of interaction between church and state.11

2.1.2   The Endorsement Test

This test, devised in the Supreme Court case of Lynch v. Donnelly,12 tends to overlap with the second prong of the Lemon test. A court must examine both what the government intended to communicate, as well as what it actually communicated, in order to determine whether the government action endorses a particular religion or religious belief.

2.1.3   The Coercion Test

As used in Lee v. Weisman,13 a court using this test will find a First Amendment violation where an agent of the government directs a formal religious exercise in a school that obliges the participation of those who would object to the exercise. This test has not, as yet, been used to examine a case dealing with evolution or creationism in public schools, as its application has been limited to cases where the government action is so effusive in its religious character that it constitutes a state-sponsored and directed religious exercise in public schools.

3.0   Separating Science and Religion

In McLean v. Arkansas Bd. of Education,14 a case considering a "balanced-treatment" enactment for a statewide high school science curriculum, a federal district court described scientific investigation as having the following characteristics:

(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, i.e. are not necessarily the final word; and

(5) It is falsifiable.

Judge Overton concluded that creationism does not conform to any of those five requirements, and as such is clearly not science 14a. It should be noted, however, that creationists do make some empirically falsifiable claims, such as a young earth, a global flood, etc., and that those claims have indeed been falsified. The broader, supernatural conclusions, on the other hand, are obviously not falsifiable in the scientific sense.

Judge Overton's analysis of creationism according to these criteria:

"The methodology employed by creationists is another factor which is indicative that their work is not science. A scientific theory must be tentative and always subject to revision or abandonment in light of facts that are inconsistent with, or falsify, the theory. A theory that is by its own terms dogmatic, absolutist and never subject to revision is not a scientific theory.

"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."

In its traditional form, creationism is a religious-political movement underwritten primarily by fundamentalist Christians, which advocates the view that the creation accounts of the book of Genesis are literally true. As noted in the concurring opinion of Justices Powell and O'Connor in Edwards v. Aguillard,15 creationists typically assert that:

[S]cientific evidences and related inferences that indicate (a) sudden creation of the universe, energy, and life from nothing; (b) the insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (c) changes only within fixed limits or originally created kinds of plants and animals; (d) separate ancestry for man and apes; (e) explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (f) a relatively recent inception of the earth and living kinds.16

These claims, while perhaps colorably scientific, have not achieved any level of acceptance in the legitimate scientific community. The results of two searches of the scientific literature, Publishing Scientific Creationism and The Elusive Scientific Basis of Intelligent Design, indicate that no paper purporting to confirm these claims has been published in any of the peer-review science journals. Each one is founded on a belief in scriptural inerrancy, which itself is manifestly an act of theistic faith. As such, any government action, either permitting or mandating the inclusion of creationism in a public school science curriculum, cannot have a secular purpose. Such an action would constitute an endorsement of a particular religious view, thoroughly entangling government with religion, and would thus be illegal under the U.S. Constitution.

Intelligent Design (ID) is a bit of a different beast. Proponents claim that it is a properly scientific theory, but it is nevertheless a form of creationism that has its roots in William Paley's teleological "watchmaker" argument.17 While a cogent statement of the claims of ID is difficult to find, it may suffice to say that there are certain natural phenomena that cannot be explained but for design and creation by a volitional intelligence. The main novelties of ID are William Dembski's "explanatory filter" and Michael Behe's "irreducible complexity" postulates. John Calvert, parroting Mr. Dembski, described the inquiries of ID this way:

"[I]f a highly improbable pattern of events or objects exhibits purpose, structure or function and cannot be reasonably and rationally explained by the operation of the laws of physics and chemistry or some other regularity or law, then it is reasonable to infer that the pattern was designed - the product of a mind."18

Although Dembski et al. are occasionally rash enough to say that the Designer is the Christian God, 19 they nevertheless insist that that conclusion is not intended to be a scientific conclusion, but a theological, and scientifically optional, interpretation of the "scientific" conclusion that life was intelligently designed. Quite clearly, the motivation of this insistence is to enable "Intelligent Design" to pass constitutional scrutiny. ID proponents had initially claimed that they were going to make their case to the scientific community, but have, for the most part, abandoned that effort.

A judicial challenge to Intelligent Design has not yet been made. It is clear, however, that because the "theory" makes reference to supernatural entities, it does not qualify as a genuinely scientific inquiry as defined by McLean v. Arkansas Bd. of Education. Including ID in a public school science curriculum should also fail the Lemon test, particularly with regard to the second prong: such inclusion would necessarily favor a religious viewpoint, violating the requirement of neutrality between religion and non-religion.

The reader should note well, however, that some members of the current Supreme Court have expressed dissatisfaction with the Lemon test. Justices Rehnquist and Scalia, in particular, have given perspicuous indications that carefully worded legislation, requiring the teaching of creationism under the guise of "academic freedom," may pass constitutional muster. Dissenting in Edwards v. Aguillard,20 those justices opined that the Court should look primarily to the face of the statute, without inquiring de novo into the motivation underlying it. In Edwards, the legislation at issue provided definitions of "creation science" and "evolution" which ostensibly indicated that creation science had a scientific, rather than a religious bias. Scalia relied solely on the Louisiana legislature's assurances that it did not intend to promote religion, without giving any weight to the history of similar legislative efforts. Should one of the more "liberal" justices retire and be replaced by one with the sharply conservative attitudes of Rehnquist and Scalia, creationism may well find its way back into science classrooms.

4.0   Specific U.S. Supreme Court Cases

Illinois ex rel. McCollum v. Board of Education of School District. 21
The Court found that religious instruction in public schools violates the Establishment Clause.

Engle v. Vitale. 22
Any form of prayer, nondenominational or otherwise, composed by public school districts constitutes government sponsorship of religion and is therefore unconstitutional.

Abington School District v. Schempp. 23
Reading passages from the Bible over a school intercom is unconstitutional.

Murray v. Curlett. 24
Forcing a child to participate in Bible reading and prayer is unconstitutional.

Epperson v. Arkansas. 25
Court found state statute prohibiting the teaching of evolution unconstitutional. A state is not permitted to alter any element of a course of study in order to promote a religious viewpoint. State was attempting to hide behind its assertion of a secular objective, to which the Court gave no credence.

Stone v. Graham. 26
Posting the Ten Commandments in a public school is unconstitutional.

Edwards v. Aguillard. 27
State requirement that "creation science" be taught in all instances where evolution is taught has a clear religious motivation, and is thus unconstitutional.

Lee v. Weisman. 28
A school district may not provide clergy to perform nondenominational prayer at a school graduation. Such action constitutes government sponsorship of worship in a psychologically coercive environment.

4.1   Selected Federal Court Cases

(Adapted from the National Center for Science Education's
Eight Significant Court Decisions [regarding evolution], by Molleen Matsumura.)

Segraves v. State of California
The court found that the California State Board of Education's Science Framework, as written and as qualified by its antidogmatism policy, gave sufficient accommodation to the views of Segraves, contrary to his contention that class discussion of evolution prohibited his and his children's free exercise of religion. The anti-dogmatism policy provided that class discussions of origins should emphasize that scientific explanations focus on "how", not "ultimate cause", and that any speculative statements concerning origins, both in texts and in classes, should be presented conditionally, not dogmatically. The court's ruling also directed the Board of Education to disseminate the policy, which in 1989 was expanded to cover all areas of science, not just those concerning issues of origins. (Segraves v. California (1981) Sacramento Superior Court #278978).

Webster v. New Lenox School District
The Seventh Circuit Court of Appeals found that a school district may prohibit a teacher from teaching creation science in fulfilling its responsibility to ensure that the First Amendment's establishment clause is not violated and that religious beliefs are not injected into the public school curriculum. The court upheld a district court finding that the school district had not violated Webster's free speech rights when it prohibited him from teaching "creation science", since it is a form of religious advocacy. Webster v. New Lenox School District #122, 917 F. 2d 1004 (7th Cir. 1990).

Freiler v. Tangipahoa Parish Board of Education
The United States District Court for the Eastern District of Louisiana rejected a policy requiring teachers to read aloud a disclaimer whenever they taught about evolution, ostensibly to promote "critical thinking". Noting that the policy singled out the theory of evolution for attention, that the only "concept" from which students were not to be "dissuaded" was "the Biblical concept of Creation", and that students were already encouraged to engage in critical thinking, the Court wrote that, "In mandating this disclaimer, the School Board is endorsing religion by disclaiming the teaching of evolution in such a manner as to convey the message that evolution is a religious viewpoint that runs counter to ... other religious views". Besides addressing disclaimer policies, the decision is noteworthy for recognizing that curriculum proposals for "intelligent design" are equivalent to proposals for teaching "creation science". Freiler v Tangipahoa Board of Education, No. 94-3577 (E.D. La. Aug. 8, 1997). On August 13, 1999, the Fifth Circuit Court of Appeals affirmed the decision; on June 19, 2000, the Supreme Court declined to hear the School Board's appeal, thus letting the lower court's decision stand.

Rodney LeVake v Independent School District 656, et al.
(Order Granting Defendants' Motion for Summary Judgment and Memorandum, Court File Nr. CX-99-793, District Court for the Third Judicial District of the State of Minnesota [2000]). High school biology teacher LeVake had argued for his right to teach "evidence both for and against the theory" of evolution. The school district considered the content of what he was teaching and concluded that it did not match the curriculum, which required the teaching of evolution. Given the large amount of case law requiring a teacher to teach the employing district's curriculum, the judge declared that LeVake did not have a free speech right to override the curriculum, nor was the district guilty of religious discrimination.

5.0   Public Policy Considerations

"Seen in the light of evolution, biology is, perhaps, intellectually the most satisfying and inspiring science. Without that light, it becomes a pile of sundry facts some of them interesting or curious, but making no meaningful picture as a whole." (Dobzhansky, 1973, "Nothing in Biology Makes Sense Except in the Light of Evolution,"
Am. Biol. Teacher 25:125-129; p. 129).

As previously noted, creationism is a religious, rather than a scientific position. By and large, the primary motivations for advocating the introduction of creationism into science classrooms are: (1) to force the schools to act as proxy religious instructors as a way of "getting God back in the classroom," and (2) to oppose the perceived metaphysical implications of evolution (which arise as a consequence of the misunderstanding of the theory in general). Although many would mistakenly characterize the controversy as a clash between opposing world-views (i.e. religion vs. atheism), the real consequences of the debate are far more immediate.

The National Academy of Sciences, among other science and educational organizations, has expressed the concern that introducing creationism in the public school system will prevent students from understanding the essential processes that underlie all of legitimate science. As a 1998 NAS guidebook offers: "There is no debate within the scientific community over whether evolution has occurred, and there is no evidence that evolution has not occurred... understanding the evolutionary change is essential to understanding the vital processes."29

Another commentator notes that "[n]othing in biology makes sense except in the light of evolution ... Without the insight of evolution, students inevitably come to see science as a heap of disconnected facts. The present state of scientific literacy among U.S. adults bears witness to the ubiquity of this kind of learning experience."30

In order for the U.S. to remain intellectually and scientifically competitive, its students must be knowledgeable about the scientific principles applied by the global scientific community. The teaching of creationism fundamentally thwarts that purpose, and would inevitably diminish the ability of the United States to protect the freedoms of both religion and, more generally, scientific inquiry.

6.0   Summary

While the U.S. Constitution allows public schools to teach various explanations for the origins of life and the universe (including creationism), such instruction is only appropriate in the context of a comparative religion, social studies, or literature classroom, and no government agent (e.g. a teacher) may endorse one viewpoint over another. In contrast, the context of a science classroom requires the presentation of only genuinely scientific positions regarding such issues. Critiques of prevailing scientific theories are also permitted, insofar as those critiques also flow from genuine science, and not from a religious standpoint.

A public school may not decline to teach evolution in consideration of its potential offensiveness to some religious viewpoints, nor may it circumvent constitutional requirements by characterizing a given religious belief as conforming to the proper definition of science. Succinctly put, current law requires that the spheres of science and religion may not be entangled with one another in a public school. To do otherwise would undermine the wall of separation between church and state required by the Establishment Clause of the First Amendment, which in turn would diminish the basic freedoms afforded to everyone protected by the Constitution.

Appendix A

Anti-evolution legislation, court cases and other political action in recent history:
Court Cases.

See this article for background about The Scopes Monkey Trial.


1. Trial concerned a Tennessee law which stated that "it shall be unlawful for any teacher in any of the Universities, normals and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the story of divine creation of man as taught in the Bible and to teach instead that man has descended from a lower order of animals." Scopes v. State, 289 S.W. 363 (Tenn. 1927).    Return to Article

2. Henry Fairfield Osborn, From the Greeks to Darwin 1 (1924).    Return to Article

3. The full text of the First Amendment may be found here.    Return to Article

4. The full text of the Fourteenth Amendment may be found here.    Return to Article

5. Everson v. Bd. of Educ., 330 U.S. 1 (1947).    Return to Article

6. Everson v. Bd. of Educ., 330 U.S. at 15-16 (citing Reynolds v. United States, 98
    (U.S. 145, 164 1878)).    Return to Article

7. Lemon v. Kurtzman, 403 U.S. 602 (1971).    Return to Article

8. Lemon v. Kurtzman, 403 U.S. at 612-613.    Return to Article

9. Wallace v. Jaffree, 472 U.S. 38, 56 (1985).    Return to Article

10. Edwards v. Aguillard, 482 U.S. 578, 591-592 (1987).    Return to Article

11. Lynch v. Donnelly, 465 U.S. 668, 684 (1983).    Return to Article

12. Lynch v. Donnelly, 465 U.S. 668 (1983).    Return to Article

13. Lee v. Weisman, 505 U.S. 577 (1992).    Return to Article

14. McLean v. Arkansas Bd. of Education, 529 F. Supp. 1255 (1982).   Return to Article

14a. The McLean definition of science (which Overton borrowed from philosopher of science Michael Ruse) is somewhat contentious; see, e.g., Larry Laudan's Science at the Bar: Cause for Concern (reprinted e.g. in Ruse's anthology, But Is It Science, Prometheus Books.   Return to Article

15. Edwards v. Aguillard, 482 U.S. 578 (1987).    Return to Article

16. Edwards v. Aguillard, 482 U.S. at 600-601.    Return to Article

17. Paley expressed his argument thusly: "[W]hen we come to inspect the watch, we perceive ... that its several parts are framed and put together for a purpose, e.g. that they are so formed and adjusted as to produce motion, and that motion so regulated as to point out the hour of the day; that if the different parts had been differently shaped from what they are, or placed after any other manner or in any other order than that in which they are placed, either no motion at all would have been carried on in the machine, or none which would have answered the use that is now served by it ... the inference we think is inevitable, that the watch must have had a maker - that there must have existed, at some time and at some place or other, an artificer or artificers who formed it for the purpose which we find it actually to answer, who comprehended its construction and designed its use." Paley thereafter argued, by analogy, that living organisms, being much more complicated than watches, must be the product of an intelligent entity.
Paley's Natural Theology : or, Evidences of the Existence and Attributes of the Deity [12th ed. 1809]. Downloadable file of the book.]   Return to Article

18. John Calvert, Teaching Origins Science In Public Schools (2001); is available
here.    Return to Article

19. The Baylor University professor has stated that "the conceptual soundness of a scientific theory cannot be maintained apart from Christ." Dembski, Intelligent Design: The Bridge between Science and Theology (1998). Another leading proponent of Intelligent Desion Phillip Johnson publicly admits that he and other ID advocates believe the Christian God is the designer.    Return to Article

20. Edwards v. Aguillard, 482 U.S. 578 (1987).    Return to Article

21. McCollum v. Bd. of Educ., 333 U.S. 203 (1948).    Return to Article

22. Engel v. Vitale, 370 U.S. 421 (1962).    Return to Article

23. Abingdon v. Schempp, 374 U.S. 203 (1963).    Return to Article

24. Murray v. Curlett, 374 U.S. 203 (1963) [decided with Abington].    Return to Article

25. Epperson v. Arkansas, 393 U.S. 97 (1968).    Return to Article

26. Stone v. Graham, 449 U.S. 39 (1980).    Return to Article

27. Edwards v. Aguillard, 482 U.S. 578 (1987).    Return to Article

28. Lee v. Weisman, 505 U.S. 577 (1992).    Return to Article

29. The NAS guidebook is found at Teaching about Evolution and the Nature of Science;
      quotation in chapter 1.     Return to Article

30. Lawrence S. Lerner, Good Science, Bad Science: Teaching Evolution in the States 2000.
      Return to Article

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