A RETURN TO THE SCOPES MONKEY TRIAL? A LOOK AT THE APPLICATION OF THE ESTABLISHMENT CLAUSE TO THE NEWEST TENNESSEE SCIENCE CURRICULUM LAW Brette Davis I. Introduction In 1925, Tennessee found itself in the national spotlight for the prosecution of an educator who allegedly violated Tennessee law by teaching the theory of evolution in his classroom. 1 John Scopes was found guilty, but the verdict was later overturned by the Tennessee Supreme Court. 2 While the Scopes Monkey Trial led many states to consider introducing antievolution legislation, 3 this trial really highlighted the tension between the science community and the religious community. 4 The battle over the teaching of evolution in schools continued after Scopes was decided and is still prevalent today. 5 Recently, a new Monkey Bill, as some would call it, was passed by the Tennessee legislature and became law when the Governor failed to sign the legislation. 6 This legislation allows educators to teach alternate theories to evolution, including creationism. 7 Many feel that this legislation returns Tennessee to the Scopes era when the theory of evolution was prohibited in schools. 8 With all of the breakthroughs in science and technology, critics claim that this is a 1 Noah Adams, Timeline: Remembering the Scopes Monkey Trial, NPR, (May 15, 2012). http://www.npr.org/templates/story/story.php?storyid=4723956. 2 Tim Ghianni, Tennessee law allows creationism theory in classrooms, Reuters, (April 10, 2012). http://www.reuters.com/article/2012/04/11/us-usa-education-tennessee-idusbre83a00720120411. 3 Deborah A. Reule. The New Face of Creationism: The Establishment Clause and the Latest Efforts to Suppress Evolution in Public Schools, 54 Vand. L. Rev. 2555,2556 (2001). 4 Only two states, Alabama and Louisiana, actually introduced legislation prohibiting evolution in textbooks and in the classroom. Joyce F. Francis, Creationism v. Evolution: The Legal History and Tennessee's Role in That History, 63 Tenn. L. Rev. 753, 758 (1996). 5 Supra n. 3, at 2556. 6 Supra n. 2, at 1. 7 Supra n. 2 at 1 8 Supra n. 2, at 1.
step backwards for the state, as well as science in general. 9 This paper looks to address the constitutionality of this Tennessee law, as well as the implications it has on religion and science. Part II of this paper will address the intersection of Christianity and science regarding evolution, showing that the two are not contradictory fields. Part III of this paper will examine the establishment clause, as well as case law particular to the evolution vs. creationism debate. Part IV of this paper will analyze the constitutionality of the new Tennessee law, arguing that it does not violate the First Amendment of the Constitution. II. Intersection of Christianity and Science There is a great misconception that Christianity and science are incompatible. The presiding worldview is that one must choose their faith or science; a person must either believe in evolution, or that God created the Heavens and the Earth. 10 The misguided propositions generally accepted are that (1) scientists are atheists, and (2) Christians discard evolution. 11 However, despite this culture war between science and religion, many religious leaders and scientists dispute the claims that a person can only believe in God or in evolution. 9 Supra n. 2, at 1. 10 Professor Francisco Ayala of the University of California, Irvine, has observed that many of his first year biology students admit that they will answer questions on evolution the way a teacher wants them to, even though they do not believe in evolution, because of their Christian beliefs. However, after students have spent years studying science, they give up their faith entirely because they now believe solely in science, not religion. Somehow, science and Christianity have become incompatible. Francisco Ayala, The Christian Man's Evolution: How Darwinism and Faith Can Coexist, Scientific American 1 (2008). http://www.scientificamerican.com/article.cfm?id=the-christianmans-evolution. Interestingly, Darwin himself also gave up his Anglican belief, but only after the death of his ten year old daughter, and because he did not want to accept that family members of his were in Hell, not because of his theory of evolution. Dinesh D'Souza, The Two Faces Of Darwin, Townhall, (2009). http://townhall.com/columnists/dineshdsouza/2009/02/12/the_two_faces_of_darwin/page/full/. 11 Joel W. Martin, What Do Most Christians Really Believe About Evolution?, The Biologos Forum, 1 (2010). http://biologos.org/blog/what-do-most-christians-really-believe-about-evolution.
Alvin Plantinga argues that a belief in God and a belief in evolution are not actually in conflict. 12 Part of the reason for the apparent conflict stems from the fact that broad words such as religion and evolution are used without actually being defined. 13 For example, which theory of evolution is actually being discussed, (1) ancient earth thesis, (2) progress thesis, (3) descent with modification, (4) the common ancestry thesis, or (5) naturalistic origins thesis, to name a few, is crucial to determining any potential conflict with a Biblical reading of the Earth s creation. 14 Consequently, the incompatibility between Christianity and science is almost always assumed, but it is actually generally erroneous. Part of the source of the conflict is that theologians who read the Bible literally believe in a very young Earth compared to evolutionary scientists. 15 Yet there are many Christian leaders today who do not read the word day in Genesis to mean a literal twenty-four hour day. 16 Consequently, a religious belief in how long it took for the creation of earth does not have to conflict with the scientific theory dating the Earth back billions of years. 17 Another potential conflict between creationism and evolution is the Biblical idea that man was created in the image of God. 18 That God created creatures with a moral sense and the capacity to know and love [H]im is completely consistent with evolution. 19 Even the idea that man adapts and mutates is consistent with the thought that God is the creator. As stated by Charles Hodge, [i]f God made them, it makes no difference how he made them, whether at 12 Plantinga argues that there is actual conflict between theistic religion and a faction of evolutionary theorists that claim that evolution is unorchestrated or unguided by God or any other being, but not the general theory of evolution. Alvin Plantinga, Where the Conflict Really Lies: Science, Religion, and Naturalism, Oxford University Press (2011). 13 One claim is that there are over forty definitions of Christianity. Supra n. 11, at 1. 14 Supra n. 12, at chapter 1. 15 Supra n. 12, at chapter 1. 16 Supra n. 12, at chapter 1. 17 Supra n. 12, at chapter 1. 18 Supra n. 12, at chapter 1. 19 Supra n. 12, at chapter 1.
once or by the process of evolution. 20 Evolution does not exclude God as the designer. Thus, the conflict between creationism and evolution is merely superficial. Therefore, it is possible to reconcile Christian beliefs with evolutionary theories. There is scientific proof that, over time, species evolve. This does not disprove Biblical creationism. God can be the creator and the designer of evolution. However, because of the removal of science from religion and the atheistic focus now on science, society has forced people to choose between creationism and evolution. Nevertheless, many scholars, philosophers, and scientists acknowledge that science and religion are harmonious, and specifically, so is creation at the hand of God compatible with evolution. III. The Establishment Clause Notwithstanding a potential reconciliation between the theories of creation and evolution, the battle over what is taught in school science classes has continued since Scopes. 21 As this culture war entered the court system, the First Amendment Establishment Clause was implemented. 22 The Establishment Clause, in part, requires that government action does not promote any particular religion. Therefore, the question becomes, when a school district allows for the teaching of alternate theories to evolution in the classroom, is there a violation of the First Amendment? The courts have instated a multitude of tests to help analyze Establishment Clause issues. 20 Supra n. 12, at chapter 1. 21 According to Joyce Francis, this battle rages on because it is a fight for the minds and souls of the nation s youth. Joyce F. Francis, Creationism v. Evolution: The Legal History and Tennessee's Role in That History, 63 Tenn. L. Rev. 753 (1996). 22 The First Amendment states that 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.
A. The Lemon Test The primary test used by the courts to establish the constitutionality of laws relating to evolution in the classroom was established in Lemon v. Kurtzman. 23 In Lemon, the contested government action was regarding the allocation of government funds to nonpublic schools. 24 The court utilized a three-prong test to determine the constitutionality of the government action. 25 The court held that the statute (1) must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion. 26 After applying the Lemon test, the court found that the statutes in question violated the First Amendment Establishment Clause. 27 The Lemon test has been flushed out by the courts over the years. Under the first prong of the Lemon test, the government policy does not have to have a predominantly secular purpose, but it must be sincere and not a sham. 28 The second prong, the effects test, requires the court to determine whether or not the policy has a neutral effect on society. 29 Finally, the third prong asks the court to decide if the policy causes excessive government entanglement with religion. 30 This three-prong test is still used by courts today; however, many critics believed that the Lemon test is becoming less prominent. 31 23 Deborah Reule, The New Face of Creationism: The Establishment Clause and the Latest Efforts to Suppress Evolution in Public Schools, 54 Vand. L. Rev. 2555, 2565 (2001). 24 Lemon v. Kurtzman, 403 U.S. 602, 602, (1971). 25 Supra n. 21, at 562. 26 Lemon, 403 U.S. 602, 612-613. 27 Lemon, 403 U.S. 602, 603. 28 Supra n. 23, at 2566. 29 Supra n. 23, at 2566. 30 Supra n. 23, at 2567. 31 Supra n. 23, at 2566.
B. The Endorsement Test In Lynch v. Donnelly, the court created the endorsement test, which looks to see if the government action endorses a particular religion. 32 Justice O Connor stated in her concurrence to the Lynch decision that the second prong of the Lemon test should actually look to see if the state endorses or disapproves of a particular religion. 33 When applying the endorsement test, courts must look at what the state intended to communicate, as well what the state actually communicated. 34 In Lynch, the Court held that when a city displays a Christmas manger for the holidays, the government was not endorsing Christian beliefs, particularly because such a display generally represents the holiday, and it was displayed along with other non-religious holiday symbols like a Santa Clause. 35 C. The Coercion Test The Court, in Lee v. Weisman, introduced the coercion test. 36 In Lee, the Court held that coercion is not necessary to prove a violation of the Establishment Clause, but it is sufficient to prove such a violation. 37 This test is used to evaluate government sponsored exercises of religion in schools, particular when participation by students is obligated. 38 Generally, the implementation of curricula is not considered to be government sponsorship of a religious 32 Supra n. 23, at 2567. 33 Lynch v. Donnelly, 465 U.S. 668, 691 (1984). 34 Supra n. 23, at 2567. 35 Lynch, 465 U.S. at 691. 36 Lee v. Weisman, 505 U.S. 577, 604 (1992). 37 Id. at 604. 38 Supra n. 23, at 2568.
exercise. 39 But, the Court did determine in Lee that starting a commencement ceremony with a prayer amounted to coercion or inducement, and therefore, the policy was unconstitutional. 40 D. Important Judicial Decisions Regarding Science Curricula After the Scopes Monkey Trial, many states considered implementing anti-evolution legislation. For example, Arkansas promulgated a law barring the teaching of evolution in public schools. 41 After a group of biology teachers selected a textbook which included the theory of evolution, the Arkansas Education Association used Susan Epperson, a biology teacher, to adjudicate the constitutionality of the state statute. 42 In Epperson, the Supreme Court held that the Arkansas statute was unconstitutional because it was clearly not religiously neutral. 43 The Establishment Clause forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma. 44 The Court sustained the idea that schools have the right to determine the curricula for public schools, but the justices emphasized that this right does not extend to government action that criminally prosecutes teachers for teaching a prohibited scientific theory when that prohibition violates the First Amendment. 45 This departure from Scopes is the first in a line of cases striking down statutes dealing with creationism and evolution. Consequently, it is essential to discuss Epperson when analyzing an Establishment Clause case regarding school curricula. Fourteen years following the decision in Epperson, Arkansas tried to implement a new law that required teachers to balance the treatment of both evolution and creationism in the 39 Supra n. 23, at 2568. 40 Lee, 505 U.S. 578-79. 41 Supra n. 23, at 2571. 42 Supra n. 21, at 759. 43 Epperson v. State of Ark., 393 U.S. 97, 109 (1968). 44 Id. at 106-107. 45 Id. at 107.
classroom. 46 In fact, many states looked at balanced-treatment legislation as the way to promulgate constitutional legislation regarding evolution. 47 Though McLean v. Arkansas Board of Education did not reach the Supreme Court, the federal district court used the Lemon test to analyze the constitutionality of the Arkansas balancing legislation. 48 The court held that this balancing test violated the Establishment Clause because the legislation was passed for the sole purpose of advancing religion. 49 The law failed the first prong of the Lemon test because it was simply trying to put a Biblical view of creation into the curriculum, and the school failed to show any secular legislative purpose. 50 Therefore, this type of balancing legislation also fails to conform to the Establishment Clause. Five years after McLean, another type of balancing legislation, this time from Louisiana, was challenged before the Supreme Court. 51 In Edwards v. Aguillard, the legislation at issue did not require a school to teach either creationism or evolution; however, if one of these theories was taught, so to must the other theory be taught. 52 The government argued that this satisfied the Establishment Clause because it was promoting academic freedom, an important secular purpose. 53 Nevertheless, the Supreme Court, while noting that the Court is deferential to the government s stated secular purpose, also noted that the secular purpose may not simply be a sham. 54 The Court held that this type of balancing actually did nothing to promote academic 46 The creationism being discussed is a science-based version. Supra n. 23, at 2572. 47 Supra n. 23, at 2572. 48 Rex R. Schultze, Evolution and Creation Science in Your School: "The Monkey Business Continues...", 79 Neb. L. Rev. 901, 904 (2000). 49 McLean v. Arkansas Bd. of Ed., 529 F. Supp. 1255, 1264 (E.D. Ark. 1982). 50 Id. at 1264. 51 Supra n. 21, at 763. 52 Supra n. 21 at 763. 53 Supra n. 21 at 763. 54 Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987).
freedom. 55 Rather, this legislation would actually serve to narrow the science curriculum because it was possible that neither theory would ever be taught in the classroom. 56 Accordingly, this type of balancing legislation is also unconstitutional in light of the Establishment Clause. In 2004, a school board in Pennsylvania passed a resolution that required teachers to explain to students that there are gaps in the theory of evolution, providing some of the missing answers using the theory of Intelligent Design, among other theories. 57 In Kitzmiller v. Dover Area School District, the court applied both the endorsement test and the Lemon test. 58 The Court found that teaching Intelligent Design amounts to the endorsement of one particular religion, as it is simply another form of teach Biblical creationism. 59 Consequently, under the endorsement test, this legislation violates the Establishment Clause. In sum, in the years since the Scopes Monkey Trial, courts have been reluctant to uphold legislation that prohibits evolution or promotes creationism. Analyzing statutes and regulations under the traditional Establishment Clause tests, courts have held that prohibitions on evolution, the introduction of Intelligent Design, and laws that attempt to balance evolution and creation in the classroom, cannot pass constitutional muster. Therefore, such legislation must be deemed unconstitutional because of the First Amendment. IV. Tennessee House Bill 368, Senate Bill 893 It is now necessary to return to Tennessee where the debate between creation and evolution began in the court system in 1925. In April, 2012, legislation was enacted by 55 Id. at 586. 56 Supra n. 23, at 2575. 57 Kevin Trowel, Divided by Design: Kitzmiller v. Dover Area School District, Intelligent Design, and Civil Education, 95 Geo. L.J. 855, 859 (2007). 58 Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 712 (M.D. Pa. 2005). 59 Id. at 716.
Tennessee which allows public school teachers to explore the weaknesses in evolution. 60 Specifically, the legislation attempts to create an environment that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about controversial issues. 61 Additionally, the legislation allows teachers to to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught, and nobody has the authority to prohibit teachers from doing so. 62 Furthermore, the legislation specifically states that [t]his section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or nonreligion. 63 As such, the courts may soon be faced with determining the constitutionality of this Tennessee legislation. There are many commentators on both sides of the debate over this legislation. Proponents argue that this law promotes true academic freedom. 64 Though he allowed the legislation to become law through a technicality that ensured its passage if he failed to sign the legislation, Governor Haslam stated that he believes that the law does not change the scientific standards that are taught in our schools or the curriculum that is used by our teachers. 65 The law simply allows for students to explore scientific alternatives to the school curriculum. On the other hand, opponents of the bill argue that this backwards thinking brings science education 60 Deborah Zabarenko, Tennessee teacher law could boost creationism, climate denial, Chicago Tribune, 1 (April 11, 2012). 61 HB0368, http://www.capitol.tn.gov/bills/107/bill/hb0368.pdf 62 Supra n. 61. 63 Supra n. 61. 64 Supra n. 61, at 1. 65 Mackenzie Weinger, Creationism bill becomes Tenn. Law, Politico, 1 (2012).
back to the early 1920 s. 66 They argue that this will allow unsound science to be introduced in to the classroom, like creationism or the denial of climate change. 67 Thus, the question becomes whether or not this polarizing legislation passes constitutional muster. First, simply because the legislation states that it is not endorsing any particular doctrines or belief-systems, the law does not necessary conform to the Lemon test or the endorsement test. While this language of the law is evidence towards congressional intent to create this legislation for a secular purpose, the secular purpose cannot be a sham. Therefore, if the rest of the legislation is deemed to endorse a particular religion or foster excessive government entanglement with religion, the legislation would violate the Establishment Clause. Consequently, the rest of the language of the legislation must also be analyzed using the constitutional tests. 68 The legislation at issue in Tennessee is similar to the legislation in Edwards where the secular purpose was academic freedom. However, this legislation rectifies the issues the Supreme Court found with the legislation in Edwards. The distinguishing characteristic between the two pieces of legislation is that the Tennessee law does not remove evolution from the classroom. At the same time, it does not mandate the teaching of an alternative theory of evolution, like creationism. This legislation simply allows teachers to discuss alternative theories if they are brought up by students in the classroom. 69 Students are merely encouraged to explore 66 Supra n. 2, at 1. 67 Supra n. 60, at 1. Eugenie Scott, director for the National Center for Science Education, described the bill as a permission slip for schools to bring creationism, climate-change denial and other non-science into science classrooms. Elizabeth Flock, Law allows creationism to be taught in Tenn. public schools, Washington Post 1 (2012). 68 Note that the coercion test is not applicable in this case because determining curriculum does not constitute government sponsorship of a religious exercise. Therefore, the tests to apply in this case are the Lemon test and the endorsement test. 69 Supra n. 2, at 1.
scientific theories and question any weaknesses they perceive. Additionally, the stated secular purpose of academic freedom is not a sham in this case because there is no prohibition on evolution, no mandate to teach creationism, and it is the students raising the alternative theories, not the educators. This law is not a ruse for teachers in Tennessee to preach Biblical creationism. Moreover, unlike the legislation in Epperson, this particular legislation is religiously neutral because it still requires teachers to follow a science curriculum that discusses evolution; the legislation simply allows for the interjection of alternative theories if a student mentions such a theory, religious in nature or not. Hence, this legislation has a legitimate secular purpose of promoting academic freedom; any religious focus in the classroom is incidental, and theoretically non-existent in a given school year. As to the second prong of the Lemon test, the Tennessee law does not advance or inhibit religion, so there is a neutral effect on society. Students are encouraged to explore and debate alternative theories to evolution, meaning that they are free to reject any theory, and they are permitted to voice their own opinions regarding any theory. Teachers themselves are not allowed to raise alternative theories, but the state asks the teachers to explore theories raised by a student. 70 Again, this law is not a guise for allowing educators to teach Biblical doctrines. Consequently, this particular law is neutral on its face, and it does not advance or inhibit a particular religion. Turning to the third prong of the Lemon test, the Tennessee law does not foster an excessive government entanglement with religion. Once more, teachers are only required to discuss alternative theories to evolution if one is raised by a student. Plus, the law specifically 70 Supra n. 2, at 1.
protects the teaching of scientific information only, not non-scientifically based doctrines. 71 Also, while it is not dispositive in showing the constitutionality of the legislation, the fact that the language points out that the law is not promoting any particular doctrine aids in showing that there is no excessive government entanglement with religion. So, this legislation also passes the third part of the Lemon test. As a result, under the Lemon test, the Tennessee law is constitutional. Nevertheless, the Lemon test does not exhaust the issue because the court would also have to analyze the legislation using the endorsement test. 72 Similarly to the analysis under the Lemon test, a court would be hard-pressed to find that the Tennessee law endorses religion. First, the legislation specifically disclaims any endorsement. Second, this law protects the teaching of scientific information, not religious or non-scientific information. 73 Also, this statute does not mandate the teaching of any religious doctrine, such as creationism, but merely allows for any alternative theory to be discussed if a student brings it up in class. 74 Any mention of a religious doctrine like creationism in the classroom would only come at the request of a student, making it incidental. The state intended to create a religiously neutral piece of legislation, and they actually did so. As discussed above, the legislation s true intent is not to teach students about creationism, but to allow for discussion of scientific alternative theories. As such, the Tennessee legislation does not violate the Establishment Clause when using the endorsement test. test. In sum, this law should be upheld under the First Amendment using any constitutional 71 Supra n. 60, at 1. In fact, Governor Haslam believes that the legislation is almost pointless because it does nothing to change existing law. Supra n. 2, at 1. 72 It is important to note that the endorsement test often overlaps with the second prong of the Lemon test. 73 Supra n. 60, at 1. 74 For example, if a student wishes to discuss the big bang theory in regards to the creation of the earth, a teacher would be asked to explore this theory. This particular theory is not a religious doctrine.
V. Conclusion To conclude, case law has clearly defined the constitutional tests for analyzing Establishment Clause cases. Since Scopes in the early 1900 s, courts have used these tests to analyze legislation regarding the teaching of evolution and creation in public schools. For the most part, courts have found legislation prohibiting a discussion of evolution or laws mandating a discussion of creationism to be unconstitutional. However, the new law in Tennessee learned from the language of these prior statutes and cured the constitutional violations by creating a religiously neutral law with a secular purpose. As such, the Tennessee law that opens the door to discussions of creation and intelligent design in public schools does not violate the Establishment Clause, and if the law is adjudicated, courts should hold that it passes constitutional muster. Hopefully this legislation can serve to unite the science community and the religious community by eliminating the superficially drawn battle lines and allowing for an open and honest discussion.