Evolution and Creationism at the Supreme Court
On August 18, 1986, a press conference was held at the National Press Club in Washington, D.C., to announce the filing of an amicus curiae brief on behalf of seventy-two Nobel laureates, seventeen state academies of science, and seven other scientific organizations. This brief supported the appellees in Edwards v. Aguillard, the Supreme Court case testing the constitutionality of Louisiana’s Balanced Treatment for Creation-Science and Evolution-Science Act, an equal-time law passed in 1982 requiring, essentially, that the Genesis version of creation be taught side-by-side with the theory of evolution in public school classrooms in Louisiana. Attorneys Jeffrey Lehman and Beth Shapiro Kaufman from the firm of Caplin and Drysdale, Nobel laureate Christian Anfinsen, biologist Francisco Ayala from the University of California, Davis, and paleontologist Stephen Jay Gould from Harvard University faced a room filled with television, radio, and newspaper reporters from across the country.
Gould and Ayala made opening statements, and a statement by Nobel laureate Murray Gell-Mann was read in absentia. The emotional commitment of these representatives from the scientific community was clear from the outset and baldly disclosed in their statements. Gould noted, “As a term, creation-science is an oxymoron—a self-contradictory and meaningless phrase—a whitewash for a specific, particular, and minority religious view in America—Biblical literalism.” Ayala added, “To claim that the statements of Genesis are scientific truths is to deny all the evidence. To teach such statements in the schools as if they were science would do untold harm to the education of American students, who need scientific literacy to prosper in a nation that depends on scientific progress for national security and for individual health and economic gain.” Gell-Mann concurred with Ayala on the broad, national scope of the problem but went further, saying, in no uncertain terms, that this was an assault on all science:
FIGURE 16:
Putting the creationist in his place. [Editorial cartoon by Bill Day, Detroit Free Press.]
I should like to emphasize that the portion of science that is attacked by the statute is far more extensive than many people realize, embracing very important parts of physics, chemistry, astronomy, and geology as well as many of the central ideas of biology and anthropology. In particular, the notion of reducing the age of the earth by a factor of nearly a million, and that of the visible expanding universe by an even larger factor, conflicts in the most basic way with numerous robust conclusions of physical science. For example, fundamental and well-established principles of nuclear physics are challenged, for no sound reason, when “creation-scientists” attack the validity of the radioactive clocks that provide the most reliable methods used to date the earth.
Reviews of the brief appeared in a broad range of publications, including Scientific American, Nature, Science, Omni, The Chronicle of Higher Education, Science Teacher, and California Science Teacher’s Journal. The Detroit Free Press even published an editorial cartoon in which a creationist joins the famous evolutionary “march of human progress” (figure 16).
In general, creationists are Christian fundamentalists who read the Bible literally—when Genesis speaks of the six days of creation, for example, it means six 24-hour days. In particular, of course, there are many different types of creationists, including young-Earth creationists, who hold to the 24-hour-day interpretation; old-Earth creationists, who are willing to take the biblical days as figurative speech representing geological epochs; and gap-creationists, who allow for a gap of time between the initial creation and the rise of humans and civilization (thus adapting to scientific notions of deep time, dating back billions of years).
Card-carrying creationists are small in number. But what they lack in numbers they make up in volume. And they have been able to touch the nerve that somewhere deep in the national psyche connects many Americans to our country’s religious roots. We may be a pluralistic society—melting pots, salad bowls, and all that—but Genesis remains at our beginning. A 1991 Gallup poll found that 47 percent of Americans believed that “God created man pretty much in his present form at one time within the last ten thousand years.” A centrist view, that “Man has developed over millions of years from less advanced forms of life, but God guided this process, including man’s creation,” was held by 40 percent of Americans. Only 9 percent believed that “Man has developed over millions of years from less advanced forms of life. God had no part in this process.” The remaining 4 percent answered, “I don’t know” (Gallop and Newport 1991, p.140).
Why, then, is there a controversy? Because 99 percent of scientists take the strict naturalist view shared by only 9 percent of Americans. This is a startling difference. It would be hard to imagine any other belief for which there is such a wide disparity between the person on the street and the expert in the ivory tower. Yet science is the dominant force in our culture, so in order to gain respectability and, what is more important for creationists, access to public school science classrooms, creationists have been forced to deal with this powerful minority. Over the past eighty years, creationists have used three basic strategies to press their religious beliefs. The Louisiana case was the culmination of a series of legal battles that began in the 1920s and may be grouped into the following three approaches.
In the 1920s, a perceived degeneration in the moral fiber of America was linked to Darwin’s theory of evolution. For example, a supporter of fundamentalist orator William Jennings Bryan commented in 1923, “Ramming poison down the throats of our children is nothing compared with damning their souls with the teaching of evolution” (in Cowen 1986, p.8). Fundamentalists rallied to check the moral decline by removing evolution from the public schools. In 1923, Oklahoma passed a bill offering free textbooks to public schools on the condition that neither the teachers nor the textbooks mentioned evolution, and Florida went even farther by passing an antievolution law. In 1925, the Butler Act, which made it “unlawful for any teacher in any of the Universities, Normals and all other public schools of the state … to teach 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” (in Gould 1983a, p.264), was passed by the Tennessee legislature. This act was viewed as an obvious violation of civil liberties and resulted in the famous 1925 Scopes “Monkey Trial,” which has been well documented by Douglas Futuyma (1983), Gould (1983a), Dorothy Nelkin (1982), and Michael Ruse (1982).
John T. Scopes was a substitute teacher who volunteered to provide the test case by which the American Civil Liberties Union (ACLU) could challenge Tennessee’s antievolution law. The ACLU intended to take the case all the way to the U.S. Supreme Court, if necessary. Clarence Darrow, the most famous defense attorney of the day, provided legal counsel for Scopes, and William Jennings Bryan, three-time presidential candidate and known voice of biblical fundamentalism, served as defender of the faith for the prosecution. The trial was labeled the “trial of the century,” and the hoopla surrounding it was intense; it was, for example, the first trial in history for which daily updates were broadcast by radio. The two giants pontificated for days, but in the end Scopes was found guilty and fined $100 by Judge Raulston (Scopes did, indeed, break the law). Because of a little-known catch in Tennessee law, which required all fines above $50 to be set by a jury, not a judge, the court overturned Scopes’s conviction, leaving the defense nothing to appeal. It never was taken to the U.S. Supreme Court, and the law stood on the books until 1967.
Most people think that Scopes, Darrow, and the scientific community scored a great victory in Tennessee. H. L. Mencken, covering the trial for the Baltimore Sun, summarized it and Bryan this way: “Once he had one leg in the White House and the nation trembled under his roars. Now he is a tinpot pope in the Coca-Cola belt and a brother to the forlorn pastors who belabor half-wits in galvanized iron tabernacles behind the railroad yards. … It is a tragedy, indeed, to begin life as a hero and to end it as a buffoon” (in Gould 1983a, p.277). But, in fact, there was no victory for evolution. Bryan died a few days after the trial ended, but he had the last laugh, as the controversy stirred by the trial made others, particularly textbook publishers and state boards of education, reluctant to deal with the theory of evolution in any manner. Judith Grabiner and Peter Miller (1974) compared high school textbooks before and after the trial: “Believing that they had won in the forum of public opinion, the evolutionists of the late 1920s in fact lost on their original battleground—teaching of evolution in the high schools—as judged by the content of the average high school biology textbooks [which] declined after the Scopes trial.” A trial that seems comical in retrospect was really a tragedy, as Mencken concluded: “Let no one mistake it for comedy, farcical though it may be in all its details. It serves notice on the country that Neanderthal man is organizing in these forlorn backwaters of the land, led by a fanatic, rid of sense and devoid of conscience. Tennessee, challenging him too timorously and too late, now sees its courts converted into camp meetings and its Bill of Rights made a mock of by its sworn officers of the law” (in Gould 1983a, pp.277-278).
So matters stood for over thirty years, until October 4, 1957, when the Soviet Union launched Sputnik I, the first orbiting artificial satellite, thereby announcing to America that, unlike political secrets, nature’s secrets cannot be concealed—no nation can hold a monopoly on the laws of nature. The Sputnik scare prompted a renaissance in American science education, during which evolution worked its way back into the mainstream of public education. In 1961, the National Science Foundation, in conjunction with the Biological Science Curriculum Study, outlined a basic program for teaching the theory of evolution and published a series of biology books in which the organizing principle was evolution.
The next generation of fundamentalists and biblical literalists responded with a new approach. In the late 1960s and early 1970s, they demanded equal time for the Genesis story and the theory of evolution, and insisted that evolution was “only” a theory, not a fact, and should be designated as such. The flash point for this new fire was the 1961 publication of John Whitcomb and Henry Morris’s The Genesis Flood: The Biblical Record and Its Scientific Implications. Whitcomb and Morris were not interested in the origins of species, as the authors themselves explained: “The geologic record may provide much valuable information concerning earth history subsequent to the finished Creation … but it can give no information as to the processes or sequences employed by God during the Creation, since God has plainly said that those processes no longer operate” (p.224). The book presented classic Flood geology in a new light, and it was promoted by new creationist organizations, like the Creation Research Society, founded in 1963. These organizations helped push through creationist legislation. For example, in 1963 the state senate of Tennessee passed by a vote of 69 to 16 a bill that required all textbooks to carry a disclaimer that any idea about “the origin and creation of man and his world … is not represented to be scientific fact” (in Bennetta 1986, p.21). The Bible, designated as a reference book instead of a textbook, was exempt from the disclaimer.
The bill was appealed by the National Association of Biology Teachers on First Amendment arguments. At about the same time, Susan Epperson, a high school biology teacher in Little Rock, Arkansas, filed suit against the state on the grounds that an antievolution bill passed in 1929 violated her rights to free speech. She won, but the case was overturned by the Arkansas Supreme Court in 1967 and later appealed to the U.S. Supreme Court. In 1967, Tennessee repealed its antievolution law, and in 1968, the U.S. Supreme Court found Epperson in the right. The Court viewed the 1929 Arkansas law as “an attempt to blot out a particular theory because of its supposed conflict with the biblical account” (in Cowen 1986, p.9) and interpreted it as an attempt to establish a religious position in a public classroom. On the basis of the Establishment Clause, the Arkansas law was overturned and the Court ruled all such antievolution laws unconstitutional. This series of legal contingencies led directly to a third course of action on the part of the creationists.
If evolution could not be excluded from the classroom, and if the teaching of religious tenets was unconstitutional, creationists needed a new strategy to gain access to public school classrooms. Enter “creation-science.” In 1972, Henry Morris organized the Creation-Science Research Center as an arm of the San Diego-based Christian Heritage College. Morris and his colleagues focused on the production and distribution of Science and Creation booklets designed for grades 1 through 8, which they managed to introduce in twenty-eight states in 1973 and 1974, along with other tracts such as Robert Kofahl’s Handy Dandy Evolution Refuter (1977) and Kelly Segraves’s The Creation Explanation: A Scientific Alternative to Evolution (1975).
The argument was that since academic honesty calls for a balanced treatment of competing ideas, creation-science should be taught side-by-side with evolution-science. Backers made a clear distinction between biblical creationism, with its openly fundamentalist religious basis, and scientific creationism, which emphasized the nonreligious scientific evidence against evolution and in favor of creation. Throughout the late 1970s and 1980s, the Creation-Science Research Center, the Institute for Creation Research, the Bible Science Association, and other such organizations pressed state boards of education and textbook publishers to include the science of creation alongside the science of evolution. Their goal was clearly stated: “to reach the 63 million children of the United States with the scientific teaching of Biblical creationism” (in Overton p.273).
On the legal end of this third strategy, in 1981 Act 590 was enacted, requiring “balanced treatment of creation-science and evolution-science in public schools. Its purposes were to protect academic freedom by providing student choice; to ensure freedom of religious exercise; to guarantee freedom of speech;… [and] to bar discrimination on the basis of creationist or evolutionist belief” (in Overton 1985, p.260). According to the California Science Teacher’s Journal, “The Statute was introduced by a Senator who hadn’t written a word of it, and didn’t know who had. It was debated for 15 minutes in the State Senate, there was no floor debate in the House of Representatives, and the Governor signed it without reading it” (in Cowen 1986, p.9). Nonetheless, it was law, and a year later the state of Louisiana passed a similar bill.
The constitutionality of Act 590 was challenged on May 27, 1981, with the filing of a suit by Reverend Bill McLean and others. The case was brought to trial in Little Rock on December 7, 1981, as McLean v. Arkansas. The contestants were, on one side, established science, scholarly religion, and liberal teachers (backed by the ACLU) and, on the other, the Arkansas Board of Education and various creationists. Federal Judge William R. Overton of Arkansas ruled against the state on the following grounds: First, creation-science conveys “an inescapable religiosity” and is therefore unconstitutional. “Every theologian who testified,” Overton explained, “including defense witnesses, expressed the opinion that the statement referred to a supernatural creation which was performed by God.” Second, the creationists employed a “contrived dualism” that “assumes only two explanations for the origins of life and existence of man, plants and animals: It was either the work of a creator or it was not.” Given this either-or paradigm, the creationists claim that any evidence “which fails to support the theory of evolution is necessarily scientific evidence in support of creationism.” But, as Overton clarified, “Although the subject of origins of life is within the province of biology, the scientific community does not consider origins of life a part of evolutionary theory.” Furthermore, he noted, “Evolution does not presuppose the absence of a creator or God and the plain inference conveyed by Section 4 [of Act 590] is erroneous.” Finally, Overton summarized the arguments of expert witnesses (including Gould, Ayala, and Michael Ruse) that creation-science is not science, as the scientific enterprise is usually defined: “science is what is ‘accepted by the scientific community’ and is ‘what scientists do.’” Overton then listed the “essential characteristics” of science as outlined by the expert witnesses: “(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 … ; and (5) It is falsifiable.” Overton concluded, “Creation-science … fails to meet these essential characteristics.” Moreover, Overton noted, “Knowledge does not require the imprimatur of legislation in order to become science” (1985, pp.280-283).
Despite this decision, creationists continued their lobbying for equal-time laws and revised textbooks. But this top-down strategy of passing laws and pressuring textbook publishers was hampered by the outcome of the case against the Louisiana law. In 1985, the Louisiana law was struck down by summary judgment (i.e., without trial) in the Federal Court of Louisiana when U.S. District Judge Adrian Duplantier ruled in concurrence with Overton that creation-science was actually religious dogma. Judge Duplantier’s decision ignored the characteristics of science, centering instead on a religious argument—that teaching creation-science requires teaching the existence of a divine creator, which is in violation of the Establishment Clause. Despite the fact that over a thousand pages dealing with the characteristics of science were filed, Judge Duplantier declined “the invitation to judge that debate” (in Thomas 1986, p.50). The decision was appealed to the U.S. Court of Appeals for the Fifth Circuit, where the value of that debate was argued. That court, initially with a panel of three judges and subsequently en banc with all fifteen judges voting, agreed with the district court that the statute was unconstitutional.
But when a federal court holds a state statute unconstitutional, by “mandatory jurisdiction,” the U.S. Supreme Court must hear the case. And since the vote was only 8 to 7, Louisiana submitted a “jurisdictional statement,” thus establishing a substantial federal question. At least four of the nine Supreme Court justices concurred that it was substantial, and by the “rule of four” agreed they would hear the case. The initial oral arguments in Edwards v. Aguillard were made on December 10, 1986, with Wendell Bird representing the appellants, and Jay Topkis and the ACLU the appellees. Bird first argued that because of some confusion about what the Louisiana statute means, “a trial, with factual development, ought to occur to enable expert witnesses on both sides to give definitions” (Official Transcript Proceedings 1986 [hereafter OTP], p.8). After lengthy discussion of the “actual” intent of the Louisiana statute, Bird pushed the “academic freedom concern"—the “rights” of students to a balanced treatment of evolution and creation (p.14).
Using a minimalist approach, and responding to the focus of Duplantier’s decision, Topkis argued that creation-science was merely religion posing as science and was therefore unconstitutional. In this instance, however, the argument failed on the grounds that if the science were valid, it should have a place in the curriculum of public school science classes, no matter what its relation to religion. The justices’ historical analogies brilliantly countered Topkis’s arguments. For example, Chief Justice William Rehnquist demonstrated to Topkis that it is possible to believe in the creation of life by God with no religious intent (OTP, pp.35-36).
Rehnquist: My next question is going to be whether you considered Aristotelianism a religion?
Topkis: Of course not.
Rehnquist: Well, then, you could believe in a first cause, an unmoved mover, that may be impersonal, and has no obligation of obedience or veneration from men, and in fact, doesn’t care what’s happening to mankind.
Topkis: Right.
Rehnquist: And believe in creation.
Topkis: Not when creation means creation by a divine creator.
Rehnquist: And I ask you, it depends on what you mean by divine. If all you mean is a first cause, an impersonal mover—
Topkis: Divine, Your Honor, has connotations beyond, I respectfully submit.
Rehnquist: But the statute doesn’t say “divine.”
Topkis: No.
Rehnquist: All it says is “creation.”
Later in the arguments, Justice Antonin Scalia became “concerned about whether purpose alone would invalidate a State action, if a State action has a perfectly valid secular purpose,” and drove home the issue with an even more enlightening historical argument about the irrelevancy of intent:
Let’s assume that there is an ancient history professor in a State high school who has been teaching that the Roman Empire did not extend to the southern shore of the Mediterranean in the first century A.D. And let’s assume a group of Protestants who are concerned about that fact, inasmuch as it makes it seem that the Biblical story of the crucifixion has things a bit wrong—because of that concern, and really, no other reason—I mean, this fellow’s also teaching other things that are wrong. He’s teaching that the Parthians came out of Egypt. They don’t care about that. They do care that Romans were in Jerusalem in the first century A.D. So they go to the principal of the school, and say, this history professor is teaching what is just falsehood. I mean, everybody knows that Rome was there. And the principal says, gee, you’re right. And he goes in and directs the teacher to teach that Rome was on the southern shore of the Mediterranean in the first century A.D. Clearly a religious motivation. The only reason the people were concerned about that, as opposed to the Parthians, was the fact that it contradicted their religious view. Now, would it be unconstitutional for the principal to listen to them, and on the basis of that religious motivation, to make the change in the high school? (pp.40-41)
Justice Lewis Powell followed with still another historical example about a hypothetical school presenting “only the Protestant view of the Reformation in their medieval history classes,” with Catholics demanding equal time on religious grounds. The Catholics’ demands would be historically tenable, so Powell inquired whether their demands would “raise any problems.” Topkis responded, “So long as the purpose of the school authorities, in taking this position, was an historical purpose rather than a religious one, I couldn’t quarrel with it” (pp.47-48).
After Powell joined Rehnquist and Scalia in questioning whether the religious motives of the appellants were sufficient to call into question the legitimacy of their claims on behalf of creation-science, it seemed that Topkis’s minimalist strategy of establishing religious intent was about to backfire and that there was a real possibility that the Louisiana statute would be upheld.
One of the appellees’ witnesses in the trial, Stephen Jay Gould, in a letter to Jack Novik of the ACLU dated December 15, 1986, noted that Topkis was “nailed, absolutely nailed, by both Scalia and Rehnquist (the last two men in America I thought I’d ever be praising, but they were spot on in this).” Gould continued, “I entered with the conviction that we had four votes for sure (Brennan, Marshall, Blackmun, and Stevens), they had two (Rehnquist and Scalia), and that we probably had our key fifth vote in Powell, and probably a sixth and maybe even a seventh in O’Connor and White. I am no longer so sure that I know where the fifth vote will come from. Am I unduly pessimistic?” At the time, possibly not. After all, Topkis and the ACLU were using the very strategy preferred by creationists whenever they debate evolutionists: go on the offensive and say nothing about your own position so that you do not need to be defensive. Gould expressed his extreme frustration when he wrote to Novik: “It would have been sad enough if we had only argued badly. But I feel especially downhearted because I think that we also argued indecently as well. We did the very thing that we have always accused the creationists of promoting—argument by innuendo rather than content. I never thought it could happen. We were not honorable. I feel like the little boy tugging on Shoeless Joe Jackson’s sleeve—‘say it ain’t so, Jack.’ Am I wrong?” If the key fifth vote could not be swung, the Louisiana appeal would be successful, negating Judge Overton’s decision in the Arkansas trial and setting a precedent for other states to pass their own equal-time laws.
Since the argument attacking the religious motivations of the creationists was not valid in the view of the Court, another tack was needed. Denying the scientific content of creation-science seemed to be the only hope for the appellees. What was needed was a clear-cut and succinct definition of science so that the Court could see that the scientific content of creation-science failed to meet criteria that would legitimize its claim to “scientific” standing.
In spite of centuries of attention by scientists and philosophers of science, no concise definition of science has ever been accepted by the community of scientists and scholars. This situation changed temporarily with the amicus curiae brief submitted on August 18, 1986, to the Supreme Court. For this brief, the amici managed to define and agree upon the nature and scope of science. The brief was instigated by Murray Gell-Mann, Paul MacCready, and other members of the Southern California Skeptics Society after they read in the Los Angeles Times that the U.S. Supreme Court had agreed to hear the Louisiana case. Worried, they contacted attorney Jeffrey Lehman, who had recently clerked for Justice John Paul Stevens. Lehman told them that “an amicus brief is the proper way for independent outsiders to present their views to the Supreme Court” (Lehman 1989).
The idea was born in March 1986. The brief would have to be submitted in five months. Time was of the essence. Lehman enlisted the help of Beth Kaufman, a colleague with expertise on the Establishment Clause. William Bennetta, a historian of the creationist movement, flew to Washington, D.C., to brief Lehman and Kaufman. Gell-Mann sent letters to state academies of science and to Nobel laureates in science and medicine in which he outlined the goals of the brief—which included showing that the language of the statute “displays and propagates misconceptions about the processes and vocabulary of science, that enforcement of the statute would promote the confusion of science with religion, and that such enforcement would subvert and distort efforts to teach well-established scientific conclusions about cosmic, planetary, and organic evolution.” As a result, Gell-Mann noted, the statute “can be explained only as an attempt to misrepresent science for the sake of promoting fundamentalist religion” (letter to Nobel laureates, June 25, 1986).
The scientific community responded thoroughly and positively. For example, the Iowa Academy of Science joined the amici and sent Gell-Mann a copy of their position statement on “creationism as a scientific explanation of natural phenomena.” Nobel laureate Leon N. Cooper accepted the invitation and sent Gell-Mann a copy of a lecture he had given on creation-science. The president of the Institute of Medicine, Samuel O. Thier, offered Gell-Mann his best wishes but declined to join only because the institute was filing its own amicus brief.
As it turned out, because the oral arguments went so badly, the briefs were significantly more important than anyone had anticipated. In a letter sent the same day as the one to Novik, Gould expressed his disappointment and concern to Gell-Mann (and revealed the level of his emotional commitment to the defense of science against the creationists): “God, I never thought those bozos could ever possibly come off better than our side in a high-level argument where it really mattered. But there is another side to all this. Our oral argument was so bad that our only hope now resides in the briefs. This makes what you did in securing the Nobelist brief all the more important, indeed probably crucial. And so I write, on behalf of the entire company of evolutionary biologists, to thank you for taking so much time for such important service in the truly common defense.” Gell-Mann recalled that “we were very upset about the oral presentation. It wasn’t that creationists are religious. Lots of scientists are religious. It’s that they are claiming to be presenting science when it is really just total nonsense. It would be like the Flat Earth Society insisting their theory be taught in the public schools” (1990).
The amicus curiae brief was written primarily by Jeffrey Lehman, with input from Kaufman, Gell-Mann, Bennetta, and others. Lehman said that the “difficulty in writing this brief from a lawyer’s point of view was to clarify what makes science different from religion, and why creationism isn’t scientific. When I talked with scientists they weren’t at all clear in trying to briefly define what they do” (1989). The brief is concise (twenty-seven pages), well-documented (thirty-two lengthy footnotes), and argues that creation-science, on the one hand, is just a new label for the old religious doctrines of decades past and, on the other, does not meet the criteria of “science” as defined in the brief by the amici.
The first argument is stated directly: “The term ‘creation-science’ in the act embodies religious dogma, not the sterilized ‘abrupt-appearance’ construct propounded by appellants in this litigation” (Amicus curiae brief 1986 [hereafter AC], p.5). In the repackaging of their position, the creationists removed God from their arguments by “sterilizing” the creation act as “origin through abrupt appearance in complex form of biological life, life itself, and the physical universe” (p.6). Kaufman explained, “We argued that the ‘abrupt-appearance’ construct is not a sufficiently well defined alternative to orthodox ‘creation-science.’ It fails to define a concrete alternative to evolution; accordingly, it is implausible that the Louisiana legislature intended the Act to embody it… . Therefore, the sterilized ‘abrupt-appearance’ construct can only be understood as a post hoc explanation, erected for the purpose of defending this unconstitutional Act” (1986, p.5). A review of the creationist literature reveals that the creationists have merely substituted words, not belief. For example, members of the Creation Research Society must subscribe to the following “statement of belief” (in AC, p.10):
(1) The Bible is the written Word of God … all of its assertions are historically and scientifically true in all of the original autographs.… This means that the account of origins in Genesis is a factual presentation of simple historical truths. (2) All basic types of living things, including man, were made by direct creative acts of God during Creation Week as described in Genesis. Whatever biological changes have occurred since Creation have accomplished only changes within the original created kinds. (3) The great Flood described in Genesis, commonly referred to as the Noachian Deluge, was an historical event, worldwide in its extent and effect. (4) Finally, we are an organization of Christian men of science, who accept Jesus Christ as our Lord and Savior. The account of the special creation of Adam and Eve as one man and one woman, and their subsequent Fall into sin, is the basis for our belief in the necessity of a Savior for all mankind. Therefore, salvation can come only thru accepting Jesus Christ as our Savior.
Similar statements issued by the Institute for Creation Research and other creationists make it clear that creationists prefer the authority of the Bible over any possibly contradictory empirical evidence. This lack of interest in empirical data is outlined in the brief to demonstrate that creation-science is not “scientific,” as the amici would insist in the second section, in which a definition of science would have to be established and agreed upon. This second section begins by offering a very general definition: “Science is devoted to formulating and testing naturalistic explanations for natural phenomena. It is a process for systematically collecting and recording data about the physical world, then categorizing and studying the collected data in an effort to infer the principles of nature that best explain the observed phenomena.” Next, the scientific method is discussed, beginning with the collection of “facts,” the data of the world. “The grist for the mill of scientific inquiry is an ever increasing body of observations that give information about underlying ‘facts.’ Facts are the properties of natural phenomena. The scientific method involves the rigorous, methodical testing of principles that might present a naturalistic explanation for those facts” (p.23).
Based on well-established facts, testable hypotheses are formed. The process of testing “leads scientists to accord a special dignity to those hypotheses that accumulate substantial observational or experimental support.” This “special dignity” is called a “theory.” When a theory “explains a large and diverse body of facts,” it is considered “robust"; if it “consistently predicts new phenomena that are subsequently observed,” then it is considered “reliable.” Facts and theories are not to be used interchangeably. Facts are the world’s data; theories are explanatory ideas about those facts. “An explanatory principle is not to be confused with the data it seeks to explain.” Constructs and other nontestable statements are not a part of science. “An explanatory principle that by its nature cannot be tested is outside the realm of science.” Thus, science seeks only naturalistic explanations for phenomena. “Science is not equipped to evaluate supernatural explanations for our observations; without passing judgment on the truth or falsity of supernatural explanations, science leaves their consideration to the domain of religious faith” (pp.23-24).
It follows from the nature of the scientific method that no explanatory principles in science are final. “Even the most robust and reliable theory … is tentative. A scientific theory is forever subject to reexamination and—as in the case of Ptolemaic astronomy—may ultimately be rejected after centuries of viability.” The creationists’ certainty stands in sharp contrast with the uncertainty scientists encounter as a regular and natural part of their work. “In an ideal world, every science course would include repeated reminders that each theory presented to explain our observations of the universe carries this qualification: ‘as far as we know now, from examining the evidence available to us today’” (p.24). But, as Gell-Mann remarked, the creationists have an obsession “with the inerrancy of the Bible. It doesn’t matter what the evidence is, they will continue to believe their doctrines to the end.” Thus, Gell-Mann noted, the creationists “aren’t doing science. They just insert the word":
It reminds me of a Monty Python routine where a guy goes into a pet store to get his fish a license. He is told they don’t make fish licenses. He replies that he has a cat license, so why can’t he get a fish license? but is told they don’t make cat licenses either. So he shows the pet store owner his cat license. “That’s not a cat license,” the owner responds. “That’s a dog license. You just scratched out the word ‘dog’ and wrote in ‘cat.’” That’s all the creationists are doing. They’ve just scratched out “religion” and in its place put “science.” (1990)
According to the amici, any body of knowledge accumulated within the guidelines they described is considered “scientific” and suitable for public school education; and any body of knowledge not accumulated within these guidelines is not considered scientific. “Because the scope of scientific inquiry is consciously limited to the search for naturalistic principles, science remains free of religious dogma and is thus an appropriate subject for public-school instruction” (AC, p.23). By this line of reasoning, in singling out evolutionary theory as “speculative and baseless” compared to other “proven scientific facts” the Louisiana law is not consistent. Rather, even though the theory of evolution is considered by virtually all biologists to be as robust and reliable as any in science, it has attracted the attention of the creationists because they perceive it as directly opposing their static and inflexible religious beliefs. The amici thus conclude, “The Act, however construed, is structured to ‘convey a message that religion or a particular religious belief is favored or preferred,’” and is thus unconstitutional (p.26).
Calling the scientific community “scared,” and the brief “the last hurrah on behalf of the dominance the teaching of evolutionism has had in our public schools,” the Creation Research Legal Defense Fund immediately took up a collection to support its stand against the amicus brief. Noting that the brief had struck a “significant blow,” a fund-raising letter requested creationists to “please pray about sending us the best possible gift you can.” It told readers that this was a “David vs. Goliath battle” and reminded them that in the original confrontation “Goliath died and David became King of Israel.” Finally, the letter noted the Nobelists’ “atheistic orientation” and stated that the Nobelists “realize this is the most important court case they have ever faced—even more important than the original Scopes Trial” because their own “religion of secular humanism” was at stake.
After calling the press conference “media propaganda,” and the brief a “clever ploy by the evolutionary establishment,” Henry Morris was no less vitriolic in an issue of Acts and Facts, a publication of the Institute for Creation Research. “To keep this prestigious ‘brief’ in proper perspective … it should be remembered that Nobel scientists are probably no better informed on the creation/evolution question than any other group of people,” Morris contended, leaving us to wonder what other group of people Morris had in mind to compare with seventy-two Nobel laureates. Morris did admit that the brief would “no doubt have much influence” but hoped “that most fair-minded people will see through it.” In arguing for the scientific basis of creationism, Morris stated that not only are there “thousands of fully qualified scientists today who are creationists” but the “founding fathers of science,” such as “Newton, Kepler, Pascal, and others,” were also creationists and were “at least as knowledgeable in science as these modern Nobelists” (in Kaufman 1986, pp.5-6).
Finally, an emotional commitment to their position by the creationists that matched that of the evolutionists was revealed in personal letters sent by rank-and-file creationists to some of the Nobelists. One letter sent to Gell-Mann said, “The blood of Jesus Christ cleanses us from all sin. Whosoever is not found written in the book of life will be cast into the lake of fire. The wages of sin is death, but the gift of God is eternal life through Jesus Christ our Lord. Ask the Lord Jesus to save you now! The second law of thermodynamics proves evolution is impossible. Why are you so afraid of the truth of creation-science?”
The case from the U.S. Court of Appeals for the Fifth Circuit, No. 851513, was argued before the U.S. Supreme Court on December 10, 1986, and decided June 19, 1987. The Supreme Court voted 7 to 2 in favor of the appellees. The Court held that “the Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose” and that “[t]he Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind” (Syllabus 1987, p.1). Did the brief swing votes? It is hard to say. The key fifth vote that the brief probably swung was Justice Byron White’s, whose short, two-page concurring opinion closely parallels section D, p.21, of the brief. Lehman noted that “insiders have told me that ‘loose lips’ in the court say that the brief mattered in the Justices’ decision” (1989).
Justice William Brennan delivered the opinion of the Court, joined by Justices Thurgood Marshall, Harry Blackmun, Powell, Stevens, and Sandra Day O’Connor. White filed a separate but concurring opinion, as did Powell and O’Connor, who wanted “to emphasize that nothing in the Court’s opinion diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum” (Syllabus 1987, p.25). Scalia and Rehnquist filed a dissenting opinion, in which they argued (as in the oral arguments of December 10) that “so long as there was a genuine secular purpose” the Christian fundamentalist intent “would not suffice to invalidate the Act.” Recalling the academic freedom issue as argued in the Scopes trial, Scalia and Rehnquist noted, “The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it” (p.25).
The creationists’ “secular” integrity becomes questionable, however, under the weight of the following, progressively bolder statements, which scientists would argue are completely fallacious: “The body of scientific evidence supporting creation-science is as strong as that supporting evolution. In fact, it may be stronger"; “The evidence for evolution is far less compelling than we have been led to believe. Evolution is not a scientific ‘fact,’ since it cannot actually be observed in a laboratory. Rather, evolution is merely a scientific theory or guess"; “It is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a ‘myth’” (Syllabus 1987, p.14).
The Louisiana trial in general, and the amicus brief in particular, had the effect of temporarily galvanizing the scientific community into not only defending science as a way of understanding the world that is different from religion but defining science as a body of knowledge accumulated through a particular method—the scientific method. Calling the case “the single biggest thrill of my practicing career as a lawyer,” Lehman observed that “this issue more than anything else crystallizes what it means to be a scientist” (1989).
The event has significance in the history of science in that it unified a diverse group of individuals perhaps best characterized by their fierce independence. Nobel laureate Arno Penzias said the communality among the Nobel laureates on the creationism case was unusual and that he could not imagine another issue receiving such support. Among the other Nobel Prize–winning signers of the brief were individuals with whom Penzias “often had violent arguments on other issues” (Kaufman 1986, p.6).
It would seem that there are two possible explanations for this unity. First, the scientific community felt itself directly under attack from the outside and, as social psychologists have demonstrated, in such conditions almost any group will respond by circling the wagons. A social psychologist might find this a most enlightening and instructive study of the process of “deindividuation,” in which individuals temporarily suppress conflicts within a group in order to defend themselves from a perceived common enemy. As Nobel laureate Val Fitch observed, “When scientific method and education are attacked, the laureates close ranks and speak with one voice” (Kaufman 1986, p.6).
Yet scientists have encountered “outside forces” before and have not responded quite so collectively and emotionally. A second factor in explaining the unification in the Louisiana case may be the scientists’ nearly unanimous perception that the creationists’ position lacked any validity whatsoever. As Fitch noted, the Louisiana creationism attack was turned back with unprecedented collective force because “it defies all scientific reason.” Gell-Mann agrees: “That’s right. It’s not so much that we were being attacked from the outside, since outsiders can make worthwhile contributions. It’s that these people were talking utter nonsense” (1990).
These two components explain why the defense and definition of science was an interim one—lasting for the duration of the case and left there to be recalled should similar circumstances again arise. Certainly philosophers of science have not suspended their research into the nature of science and the scientific method with the publication of the brief. This agreement was made politically, not philosophically. In our democratic society such conflicts are solved (if only for a while) by a vote. In the Louisiana case, the vote was taken and the Court followed the advice of the defenders and definers of science—the scientists themselves.