America faces an enormous literacy problem when it comes to many topics but perhaps none is as dangerous as our ignorance of science. I don't mean that we all need to understand the intricacies of molecular biology or be able to graph linear equations. I simply fear that basic high-school-level genetics, statistics, and geology are missing from most high school graduates’ education. There is almost a knee-jerk sense that if an “expert” in science tells us something we don't want to believe, he or she is an elitist snob who is probably fudging some numbers and is almost certainly an antireligious bigot to boot.
Nowhere is this view more relevant than in the never-ceasing debate over how the universe began or, as Jim Holt queries in the title of his extraordinary book, Why Does the World Exist?1 Most readers are familiar with the actual facts of the historic Scopes “Monkey Trial,” or at least the fictionalized account in the play and film “Inherit the Wind.” Fewer realize how little good it did for getting creationism out of the classroom, which didn't happen until forty-three years later with Epperson v. Arkansas.2
Regrettably, the evolution debate continues, with a rabid 42 percent of Americans still unconvinced of its veracity. Between the Scopes trial in 1925 and today, some terribly important Supreme Court cases have been decided in regard to various attacks on the teaching of evolution. In 2003, I had the opportunity to summarize them in a presentation to the National Association of Biology Teachers convention in Portland, Oregon. The hall was set up for hundreds of people to come to my session on “Creationism and the Law,” but only about twenty-five people showed up. When I asked several of the participants what happened to the anticipated “crowd,” I was told with varying degrees of whispered responses: “Many of us are here with other teachers in our school district. In many places, it wouldn't be a good idea to be seen coming into a session on this topic.” What I had told them, as you can see below, was hardly an assault on religion; it was just a chronicling of what the highest court in the country had ruled:
Let me begin by summarizing how current constitutional law deals with the evolution question.3 I realize that many of you may have thought the strictly legal issues involving the teaching of “creationism” had been resolved. In a rare example of being both right and wrong, you would be right and wrong. In 1968, less than one month after it was argued before the Supreme Court, that court ruled, without dissent, that a tenth-grade teacher in Arkansas should not have been fired for teaching about human evolution, despite a 1928 state law that had prohibited such instruction.4 Justice Abe Fortas wrote plainly: “Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man.” This was the death knell for statutes born around the time of Tennessee's infamous “monkey trial.”
However, opponents of evolution then turned to a theory of “inclusiveness” instead of “exclusion.” That approach reached the Supreme Court nineteen years later in Edwards v. Aguillard,5 a challenge to Louisiana's “Balanced Treatment for Creation Science and Evolution Science in Public Schools Instruction Act.” The act essentially forbade the teaching of evolution in public schools unless accompanied by instruction in “creation science.” Although the Supreme Court acknowledged that the stated purpose of the law was to “protect academic freedom,” the Court concluded that the entire legislative history of the measure demonstrated that the real purpose was quite different. The majority of the Court wrote: “The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose.” Clear enough? Not quite.
Now, you are all biologists to whom I can obviously teach nothing about biology. But—I can teach a little law. Lengthy opinions often contain what we lawyers call “dicta,” words that help to arrive at a ruling, but which are not essential to reach the result. Some would call them “gratuitous comments.” Here are a few slivers of “dicta” from that Edwards case I just mentioned: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.” A second comment of note was: “…teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.”
These words paved the way for, shall we say, “innovative,” future attempts to incorporate antievolution material in the curriculum of public schools. Those attempts have borne fruit, including lawsuits, but none has been ultimately successful. In two federal appeals courts, teachers lost claims that their first amendment rights were being violated by constraints on teaching nonevolutionary theories of creation in the classroom. In a case brought by a junior high school social studies teacher in New Lenox, Illinois, the court said there was legitimate concern that his comments promoting creation science could be viewed by reasonable people as an establishment of religion.6 As to his more grandiose claim that his “academic freedom” was being suppressed, the court reiterated that the First Amendment is not a “teacher license for uncontrolled expression at variance with established curriculum content.”
A few years later in the Ninth Circuit Court of Appeals, John E. Peloza, backed by a raft of so-called “Religious Right” groups, argued the flip side of the Illinois case, claiming that by requiring him to teach what he called “evolutionism,” he was being coerced through a conspiracy of state officials to teach what he categorized as a “religious belief system” with which he disagreed.7 The Court fairly briskly reminded Mr. Peloza that there is no religion called “evolutionism” and that the school is not establishing said nonreligion by teaching an “established scientific theory.” Remember dicta, though? The Court commented that “evolution” means “higher life forms evolve from lower ones. The concept has nothing to do with how the universe was created; it has nothing to do with whether or not there is a divine Creator (who did or did not create the universe or did or did not plan evolution as part of a divine scheme).” More on this later.
If teachers can't successfully make a First Amendment argument, what about students? In one illustrative case a fourteen-year-old named Rebecca Moeller in Muscogee County, Georgia, claimed that a passage from her science textbook disparaged her religious beliefs.8 The offending section merely said that many cultures had creationist beliefs but that these could not be tested using the scientific method. The appeals court ruled: “The use of the textbook in question in no way forces Moeller to refrain from practicing her religious beliefs.”
So: if a state can't prohibit teaching evolution or require side-by-side instruction in evolution and creationism; and if neither teachers nor students can claim a First Amendment right to avoid the issue, what legal avenues are left? Next case: official disclaimers placed on textbooks or recited whenever the issue of evolution is raised in a classroom discussion. In Freiler v. Tangipahoa (even harder to pronounce that “angiosperm”) Parish Board of Education,9 several federal courts examined a Louisiana school board policy requiring a disclaimer that noted that any lessons about evolution are “not intended to influence or dissuade belief in the biblical version of creation or any other concept.” The trial judge noted in his ruling that: “While encouraging students to maintain their belief in the Bible, or in God, may be noble aim, it cannot be one in which the public schools participate, no matter how important this goal may be to its supporters.” This decision was upheld by a federal appeals court and the Supreme Court chose not to hear the case (as it does, with roughly 98 percent of the cases presented to them).
Another disclaimer still appears in Alabama biology textbooks, after its approval by a 6–1 vote in 1995 by the State Board of Education. It has not been challenged in court, but it is extraordinarily misleading in its 250 words. One sentence describes evolution as a “controversial theory some scientists present as a scientific explanation for the origin of living things, such as plants, animals and humans.” Actually, there is virtually no controversy among scientists, but this makes it sound again like there is fifty-fifty split in scientific opinion. The statement then expands its ignorance to note: “no one was present when life first appeared on earth. Therefore, any statement about life's origins should be considered as theory, not fact.” Here, too, the false implication is left that there is some set of scientific “facts” that are higher on the intellectual food chain than “mere” theories. In truth, it is almost precisely the opposite: only after the review of many facts does one reach the position of crafting a “theory,” so the “theory” is the culmination of observation and experiment, not some kind of hunch that came to you after a little too much wine.
This was the state of the law until a seminal event in 2005—the filing of a challenge to the inclusion of “intelligent design” (ID) materials in a high school biology curriculum in the small city of Dover, Pennsylvania. Intelligent design is a non-scientific view that the careful “design” of the universe must be attributable to a “cause” (God) and not the undirected process of natural selection. Americans United and the Pennsylvania affiliate of the American Civil Liberties Union joined with the firm of Pepper Hamilton LLP to represent parents challenging the inclusion of antievolution “supplementary” materials—particularly a book called Of Pandas and People—in their public high school's library.
The Dover case was the source of vast international press attention from the day of the filing until weeks past the final disposition. On December 20, 2005, Judge John E. Jones III, appointed by President George W. Bush, with the strong endorsement of Pennsylvania's staunch conservative senator Rick Santorum, ruled for our plaintiffs in a superbly written 139-page opinion that shocked many observers. The ruling concluded that intelligent design was not science and permanently barred the school board from “maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID.”
Judge Jones was not merely convinced of the unconstitutionality of the “intelligent design” materials being included in the biology class, he also learned some unpleasant lessons about the conduct of the Religious Right. He blasted the board for not being honest about its goals and for trying to cover up the fact that the copies of Pandas were paid for by a church offering:
[T]he inescapable truth is that both Bonsell and Buckingham [two school board members] lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas…. This mendacity was a clear and deliberate attempt to hide the source of the donations by the Board President and the Chair of the Curriculum Committee to further ensure that Dover students received a creationist alternative to Darwin's theory of evolution. We are accordingly presented with further compelling evidence that Bonsell and Buckingham sought to conceal the blatantly religious purpose behind the ID Policy…. The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy…. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.10
In a strange footnote, Judge Jones and I had both attended the well-respected liberal arts college, Dickinson, in Carlisle, Pennsylvania. In 2007, the college put out a list of its twenty-five most important alumni, and the judge and I were both on that list. It was quite an honor. Dickinson only graduated one person who went on to the presidency, James Buchanan. He was also on that list. You pretty much have to put a president-graduate on any such list, although Buchanan is widely considered by historians to be the worst chief executive in American history, given his failure to avert the Civil War.
Although the issue of “creationism” did not go away after the events in Dover, and later, an Americans United case in El Tejon, California, there was a sharp pullback of the seriousness with which right wing legislators pursued the matter. “Creationism” lawsuits are really expensive to lose. And, of course, evolution deniers have been working on other projects.
Advocates of “intelligent design” and so-called “Young Earth Creationism” (a non-scientific belief that asserts that, based on a literal reading of the biblical texts, the Earth is only about six thousand years old and that all life on Earth was created over a relatively brief period) are still out there promoting their beliefs and even occasionally seeking financial aid for their ideas. Nothing, however, is stranger than the “Ark Park”—a planned attraction by Answers in Genesis founder Ken Ham, the founder of the Kentucky Creation Museum which I almost got to see, until I realized that the only road into the place had been blocked earlier in the day by the crash of a double-wide house trailer. (I did not make this up, even though, to some readers, this may sound like a crass reflection of anti-southern stereotyping.) Ham and I had a lively chat about this on CNN in 2011 before an astonished Anderson Cooper, discussed in this column:
I debated Ken Ham, the head of the group Answers in Genesis.11 His latest project is to be a partner in the construction of a “Noah's Ark” theme park near his Creation Museum in Grant County, Kentucky.
With his own money, Ham can build an ark-sized water slide if he wants, but unfortunately he wants taxpayers to subsidize this effort by giving him a sales tax rebate—up to about $43 million.
Ham was offended that I considered this a “subsidy” at all, but I maintained that the difference between his effort and the construction of a sports stadium was that the purpose of his facility would be to convert people to his religious perspective. When Cooper asked him if he wanted to convert people, Ham—like so many of his peers—wouldn't admit that was the purpose of the project. (For the biblically inclined, this kind of dodge always reminds me of Peter's trifecta denial that he knew this fellow Jesus when asked by the Roman soldiers.)
Ham was clear that dinosaurs would be depicted on the ark since he claims they obviously lived in Noah's time, but got a bit standoffish about inclusion of unicorns, a species he notes on his website also existed at the time.
Although Ham's proposed project got no direct state funding because of delays in private funding and subsequent construction problems, another issue arose in 2014 that appears to have put the kibosh on his whole government funding effort—a blatantly discriminatory hiring policy at the venue.
In August 2014, an online post went up advertising a position for a computer-assisted-design technician to work at Ark Encounter. Interested applicants were required to submit, in addition to the usual documents, a “[c]reation belief statement,” as well as “[c]onfirmation of [their] agreement with the AiG Statement of Faith.” For those unfamiliar with the Ark Park's “statement of faith,” it requires potential employees to affirm their belief that homosexuality is a sin on par with bestiality and incest, that the earth is only six thousand years old, and that the Bible is literally true, among other things. The post was taken down quickly, but the Ark Park's hiring practices are still a cause for concern.12
As of this writing, the waterslides and the unicorn-infested Ark Park remain unbuilt and largely unfunded. But, like so many bad things, Ham is convinced that he can still sail on to victory. In mid-December 2014, he launched an aggressive billboard campaign, both in Kentucky and New York City's Time Square. It notes: “To All Our Intolerant Liberal Friends: Thank God You Can't Sink This Ship”—alongside a photo of an ark under construction.
Except that we did. Or rather, Kentucky did. The Kentucky Tourism Secretary decided that the Ark Park would not be eligible for tax incentives, an important source of funding for the park.
It looks like his ship might be sunk after all. Nevertheless, in early February 2015, Ham sued the commonwealth of Kentucky for “discriminating” against this project. He directly blamed Americans United for his funding problems.
In other words, creationism, although sputtering, endures. However, there is a silver lining. In the same 2014 survey cited at the beginning of this chapter reporting that 42 percent of Americans believe in creationism, young Americans were, notably, the most skeptical of the creationists’ story.13 Only 28 percent of young Americans aged eighteen to twenty-nine believe that humans have always existed in their present form, versus the 50 percent of Americans aged sixty-five years or older who feel the same way. There is an inverse correlation between the number of years individuals spend in school and their support for creationism. Twenty-seven percent of college graduates report believing that “God created humans in present form within the last 10,000 years.” This is in stark contrast to the 57 percent of Americans who did not graduate from high school reporting that they believe in creationism. These two trends foretell a brighter future: As younger Americans who are attending college in increasing numbers begin to make policy decisions, creationism only stands to fail.
This is perhaps best illustrated by the ongoing fight over creationism in Louisiana spearheaded by Zack Kopplin, a native of Baton Rouge and student at Rice University in Texas. Since 2010, Kopplin has been fighting the Louisiana Science Education Act—a bill signed into law by Governor Bobby Jindal in 2008. The first of its kind in the nation, this law permits public schools to supplement traditional biology classes with materials that incorporate creationism into their curricula. Americans United and the Louisiana affiliate of the ACLU have already announced a lawsuit against any school district in the state that tries to implement this statute.