Establishment Clause--An Introduction

Older Cases

Important Cases

Everson v. Board (47)

McCollum v. Board (48)

Zorach v. Clauson (52)

Engel v. Vitale (62)

Abington Sch. Dist (63)

Brennan's Opinion (63)

Board v. Allen (68)

Epperson v. AR (68)

Walz v. Commission (70)

Lemon v. Kurtzman (71)

Tilton v. Richardson (71)

Hunt v. McNair (73)

Comm. v. Nyquist (73)

Levitt v Committee (73)

Sloan v. Lemon (73)

Meek v. Pittenger (75)

Roemer v. Maryland (76)

NY v. Cathedral (77)

Wolman v. Walter (77)

Committee v. Regan (80)

Regan II

Stone v. Graham (80)

Widmar v. Vincent (81)

Chambers v. NE (83)

Mueller v. Allen (83)

Lynch v. Donnelly (84)

Wallace v. Jaffree (85)

Aguilar v. Felton (85)

Grand Rap. v. Ball (85)

Witters v. Wash. (86)

Edwards v. Aguillard (87)

Bowen v. Kendrick (88)

Alllegheny I (89)

Allegheny II (89)

Westside v Mergens (90)

Lee v. Weisman (92)

Lee v. Weisman II (92)

Lamb's Chapel (93)

Zobrest v. Catalina (93)

Bd. of Kiryas Joel (94)

Rosenberger v. UVA (95)

Agostini v. Felton (97)

Santa Fe v. Doe (00)

Mitchell v. Helms (00)

Zelman (02)

McCreary County (05)

Van Orden (05)

Edwards v. Aguillard

482 US 578 (Decided June 19, 1987)

Bill Long

The Court struck down (7-2) Louisiana's "Creationism Act," enacted in 1981 to assure the equal teaching of "Evolution Science" and "Creation Science" in the public schools or, alternatively, to forbid the teaching of the former if the latter is not taught. The Court, with Justice Brennan writing for the majority, held that the Act impermissibly endorses religion, thus violating the "purpose-prong" of the Lemon test, by advancing the religious belief that a supernatural being created humankind. The dissenters (Chief Justice Rehnquist and Justice Scalia) would have desired a more full development of the record (the case was decided on a summary judgment motion) and a more deferential attitude toward the state legislature and lawmaking process.

Relevant Facts

Surprising it seems, on first glance, that Justice Brennan really didn't describe the statute with any precision or care. All he says is that "the Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in 'creation science.' No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught." It was left for the concurrence of Justice Powell and the dissent to tell us the finer points of the law.

Justice Brennan spent far more time reviewing the lower court decisions as well as the avowed legislative purpose for the Act. Louisiana officials defended the Act on the grounds that it protected a "legitimate secular interest, namely academic freedom." The lower courts held that there could be no valid secular reason for prohibiting the teaching of evolution, a theory that was historically opposed by some religious denominations. The lower courts, therefore, concluded that the statute was really tailored to principles of particular religious sects and, as such, advanced their religious doctrine at the expense of the Establishment Clause.

The Majority's Argument

Making use of the Lemon test, which Justice Brennan mentioned had been used in every Establishemnt Clause case since Lemon with the exception of Chambers (1983), the Court zeroed in on the first prong, the purpose of the statute. In most previous decisions of the Court, this prong had been sailed over with rarely a mention, as Justice Scalia gleefully pointed out in dissent. However, in this case, Justice Brennan uses the test as refracted through Justice O'Connor's concurrence in Lynch (1984) as asking "whether government's actual purpose is to endorse or disapprove of religion."

In order to ascertain governmental purpose, he focused on the legislative history of the statute and the words and conduct of the bill's chief sponsor, State Senator Keith. He concluded that rather than furthering the goal of a more "comprehensive science curriculum," which Senator Keith allegedly desired, it actually undermined that purported comprehensiveness by potentially eliminating consideration of the regnant scientific theory of human origins. The goal of promoting academic freedom struck him, and especially the concurrence, as hollow, since greater teacher freedom to present material was purchased at the expense of equal time limitations and elimination of crucial material unless one wanted to teach "Creation Science" along with it.

Equally crucial for the majority in divining a religious intent behind the statute was the history of anti-evolution statutes especially in the South. Relying on the 1968 Epperson decision, which held unconstitutional Arkansas' "anti-evolution" statute passed in the wake of the Scopes "Monkey Trial" in 1925, Justice Brennan concluded that the Creationism Act was just such a monkey statute redivivus even though dressed in different garb. "These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case." While not using the word "ironic," he found it problematic that the tenets taught in Creation Science were those that didn't conflict with the Book of Genesis and, in fact, seemed tailored to confirm the truths of the biblical account. The statute must, perforce, violate the Establishment Clause.

Before concluding his opinion, however, he had to deal with one pesky issue that the dissent raised, and that was the fact that the case was decided at the summary judgment stage, thus allowing affidavits and pleadings but not permitting the development of an evidentiary record. He concluded that affidavits of after-the-fact witnesses, none of whom participated in the legislative process, did not raise a "genuine issue of material fact." A Monday-morning "battle of the experts" would not clarify the law.

A Scaliasque Dissent

Never a man to make a small splash when diving into the pool, Justice Antonin Scalia (new to the Court in 1986), ripped into the majority for not granting an evidentiary hearing, for improper guessing at the purpose behind the enactment and for accusing the Louisiana legislators who voted for the bill as "knowingly violat(ing) their oaths and then l(ying) about it." He argued that at the summary judgment stage one must accept the appellant's view of the purpose of the law, and since that purpose was to enhance "academic freedom," this purpose should have been accepted as a legitimate secular purpose. In considering how academic freedom might have been furthered by this Act, and not be a "sham" purpose," the Justice advanced the novel theory that the academic freedom inhered in the students--their freedom to be exposed to alternative views. The fact that this notion of academic freedom showed no indebtedness to the historical origin of the term did not stop his fanfaronade. In the end, however, his lengthy dissent fell on deaf ears.

Conclusion

As with any powerful social movement, the "Creation Science" movement did not roll over and play dead after this decision. Seeing that the language of "Creation Science" was being perceived as too transparently indicative of a religious motive, promoters of this type of approach knew that they would have to come up with a new term and approach in the 1990s. And so they did. It was, and is, the "Intelligent Design" movement, which is now trying, with various degrees of success, to attack the "evolutionist" establishment.

To their credit, they might have a point, although only a little one. The philosophical assumption behind the theory of evolution is gradualism. There is a respected alternative theory--catastrophism--which does not require a belief in the Book of Genesis or a Supreme Being. The evolutionists, in my judgment, have done everything in their power to suppress this alternative explanation of scientific pheonomena. Therefore, look to this decade (2000-2010) for the evolutionsits to get a little comeuppance, though only a little.