Epperson v. Arkansas
393 US 97 (Decided November 12, 1968)
Bill Long
This 9-0 Establishment Clause case invalidated Arkansas' "anti-evolution" statute, which made it a misdemeanor punishable by termination of employment for a teacher in any state-supported school or university to teach or use a textbook teaching "that mankind ascended or descended from a lower order of animals."
Background Facts
The Nation's eyes were riveted on Dayton, TN in the late Spring of 1925 as William Jennings Bryan, the aging populist and thrice Democratic nominee for President, squared off against Clarence Darrow in arguing the constitutionality of a Tennessess anti-evolution statute in the Scopes trial. Scopes was actually convicted of violating the statute but, in 1927, his conviction was reversed by the Tennessee Supreme Court because of a sentencing technicality. In the wake of his trial, however, several Southern states passed their own versions of anti-evolution laws, called "monkey laws." Arkansas' statute went on the books in 1928 and, as indicated above, prohibited the teaching of or use of a textbook teaching the theory of evolution.
As the Supreme Court noted, no one had been tried or convicted under the law, and by the mid-1960s it was little more than a historical curiosity. Nevertheless, Susan Epperson decided to question its constitutionality when the textbook she was assigned to use in a Little Rock high school had a chapter setting forth the theory of humanity's origin "from a lower form of animal."
The lower court held the statute a violation of free speech, while the state Supreme Court reversed and upheld the statute with the following cryptic two-sentence per curiam opinion:
"Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928......is a valid exercise of the state's power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised."
The Supreme Court Decision
Speaking for the Court, Justice Fortas redefined the issue as a First Amendment religion issue and held that Arkansas' law violated the Amendment because: "The overriding fact is that Arkansas' law 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; that is, with a particular interpretation of the Book of Genesis by a particular religious group."
The legal principles upon which Justice Fortas drew were those articulated two decades earlier in Everson. Government must be neutral with respect to matters of religious theory and doctrine, and this entailed that it may not be hostile to or promote any religion or even "no-religion." The First Amendment mandates governmental neutrality "between religion and religion, and between religion and nonreligion." Thus, he squarely put himself, and the Court, behind the theory of nonpreferentialism: the court cannot prefer religion over irreligion much less one religious sect or expression over another (such as Christianity over atheism). His use of the terminiology of the "wall of separation" between church and state and his contention that the Arkanasas law was solely the product of the religious belief of some citizens made it a "slam dunk" decision. In addition, since this was a case concerned with the content of education, he drew upon the 1923 Meyer case to argue that the First Amendment reached as far as school classrooms, even though traditional authority over the classrooms was vested in the local school board.
Concurrences
Though the entire Court seemed at this time to have adopted the Everson nonpreferentialist rationale, the concurrences would either have declared the statute void because of vagueness (a favorite device of the 1960s Court), since the Arkansas Supreme Court didn't even know whether the statute prohibited the teaching of evolution as true or even the mention of the doctrine. In addition, Justice Black contended that because the law seemed to have fallen into desuetude, there might not actually be a live "case or controversy," in the constitutional sense, before the Court. Justice Stewart opined that the statute was vague but would be unconstitutional if the Arkansas Court concluded that it actually prohibited introducing the theory of evolution to students.
Conclusion
Decisions on the Establishment Clause from this era represent the high water mark or triumph of the theory of "neutrality," or "nonpreferentialism" or "separation." Even though the theory affirmed practices that the dissenters called an "establishment" of religion, by allowing the reimbursement of parents for bus transportation (Everson) or permitting "release time" for religious education during school hours (Zorach), for example, it also became the tool to eliminate long-established practices such as prayer and Bible reading in the public schools.
Copyright © 2004-2007 William R. Long |