Amicus Curiae Brief — Edwards v. Aguillard

No. 85-1513

IN THE

Suprene Court of the United States

OCTOBER TER)

-

EDWIN W. EDWARDS, i!

On Appeal from the

United States Court of Appeals for the Fifth Circuit

BRIEF OF PEOPLE FOR THE AMERICAN WAY,

AMERICAN SOCIETY OF BIOLOGICAL CHEMISTS,

AMERICAN SOCIETY OF ZOOLOGISTS,

FEDERATION OF AMERICAN SOCIETIES

FOR EXPERIMENTAL BIOLOGY,

NATIONAL ASSOCIATION OF

SECONDARY SCHOOL PRINCIPALS,

NATIONAL CENTER FOR SCIENCE EDUCATION

NATIONAL EDUCATION ASSOCIATION,

NATIONAL SCHOOL BOARDS ASSOCIATION,

WALTER BOCK, PRESTON CLOUD, ROBERT F. DRINAN,

LANGDON GILKEY, STEPHEN JAY GOULD,

rHOMAS H. JUKES, COLLINS KILBURN, LEROY LEE,

WILLIAM V. MAYER, ERNST MAYR, JOHN A. MOORE,

NORMAN D. NEWELL, JOSEPH D. NOVAK,

DAVID RAMAGE, JR., GEORGE M. RICKER,

GERALD SKOOG AND JERRY R. TOMPKINS

AS AMICI CURIAE IN SUPPORT OF APPELLEES

TIMOTHY B. Dyk

Counsel of Ri

\. DOUGLAS MELAMED

KERRY W. KIRCHER

WILMER, CUTLER & PICKERIN

1666 K Street, N.W

Washington, D.C. 20006

(202) 872-6000

August LS, 1986 Counsel fo? Amici Curiae

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American Civil Liberties Union, The Gag on

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Christian Heritage College Catalog (1974)

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H. Hudgins, Jr. & R. Vacca, Law and Education

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1513

EDWIN W. EDWARDS, in his official capacity as

Governor of Louisiana, et al.,

A pe llants,

Vv. PI

DON AGUILLARD, et al.,

Appr lee Ss.

On Appeal from the

United States Court of Appeals for the Fifth Circuit

BRIEF OF PEOPLE FOR THE AMERICAN WAY,

AMERICAN SOCIETY OF BIOLOGICAL CHEMISTS,

AMERICAN SOCIETY OF ZOOLOGISTS,

FEDERATION OF AMERICAN SOCIETIES

FOR EXPERIMENTAL BIOLOGY,

NATIONAL ASSOCIATION OF

SECONDARY SCHOOL PRINCIPALS,

NATIONAL CENTER FOR SCIENCE EDUCATION,

NATIONAL EDUCATION ASSOCIATION,

NATIONAL SCHOOL BOARDS ASSOCIATION,

WALTER BOCK, PRESTON CLOUD, ROBERT F. DRINAN,

LANGDON GILKEY, STEPHEN JAY GOULD,

THOMAS H. JUKES, COLLINS KILBURN, LEROY LEE,

WILLIAM V. MAYER, ERNST MAYR, JOHN A. MOORE,

NORMAN D. NEWELL, JOSEPH D. NOVAK,

DAVID RAMAGE, JR., GEORGE M. RICKER,

GERALD SKOOG AND JERRY R. TOMPKINS

AS AMICI CURIAE IN SUPPORT OF APPELLEES

INTEREST OF AMICI CURIAE

Amici curiae are eight scientific, educational and con

stitutional liberties groups,' and 17 individual scientists,

People for the Ame! n Way is a 250,000-membe! nstit

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Phe Americal Societ) f Bi gical Cnemists ASB( S a

cientit nd educatio! rganization with a current members!

of more than 7,000 professional biochemists. Most of ASBi men

bers are employed as college and university faculty ASBC pub

lishes the Journal of Biological Chemistry, a major peer-reviewed

journal in the life sciences

The American Societ f Zoologists is a professional orga!

Clo! I e pur} to present, discuss and pub d eminaté

new or important facts and concepts in the area of animal biolog:

The Federation of American Societies for Experimental Biol

is an organization whose purpose is to develop and disseminate new

knowledge in the life sciences through its meetings and publica

tions. Many of the approximately 28,000 members of the federa ed

societies work in major research, educational and clinical centers

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across the United States

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he National Association ol Secondary school Principa

‘NASSP”) is a professional organization representing more than

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25000 middle school and senior high school administrators

NASSP members are responsible for the education of the nati n’s

youth in a major portion ff the country’s 100,000 schools, attended

by 44 million students.

The National Center for Science Education (“NCSE”) 1s an

organization whose purpose is to promote and advance the teaching

of science in the public schools, and to educate and inform the

public about issues concerning science education The Comm)

of Correspondence is a project of NCSE dedicated to opposing the

introduction of creationism into the public school science cul

riculum

The National Education Association (“NEA’ is a nationwide

emplovee organization with a current membership cf 1.8 miulho1

The vast majority of NEA’s members are employed as teachers and

administrators In pubii educational institutions

The National School Boards Association is an educational organ}

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cerning the tenets of evolution 1S a permissible (indeed

desirable) objective. amici believe that “‘creation-science

is a religious doctrine that has no place in public schools.

are concerred that balanced treatment requirements

such as the Louisiana statute at issue here that re-

quires “balanced treatment” of evolution

and “creation-

science’”’—will degrade education in the public schools by

requiring the teaching of a religious doctri r by ell

inating the teaching of an important

Amici therefore join appellees in urging this Court t

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affirm the judgment of the Court of Appeals finding the

Louisiana statute unconstitutional.

Both appellants and appellees have consented to the

filing of all amicus briefs. Letters of consent are on file

with the Clerk of the Court.

SUMMARY OF THE ARGUMENT

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Louisiana’s “Balanced Treatment for Creation-Science

and Evolution-Science Act” (‘Balanced Treatment Act”’

or “Act’’?), La. Rev. Stat. Ann. $$ 17:286.1 et seq. (West

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ence” is also taught. The Act violates the Establishment

Clause of the First Amendment as measured against the

three-part test articulated by this Court in Lemon v.

Kurtzman, 403 U.S. 602 (1971).

First, the purpose of the Act is to sdvance religio

On its face, it seeks either to require the teaching of a

doctrine—“‘creation-science’—that is commonly under-

stood to be religious, or to eliminate the teaching of

evolution which is opposed by certain religious groups

because of its perceived antagonism to their beliefs. The

historical context in which the Act was enacted, its lan-

guage and structure, and its legislative history lead in-

evitably to this conclusion.

Second, the Act has the primary effect of advancing

religion. It directly aids in disseminating one belief of a

particular religious group by teaching it in the public

schools (or alternatively, it inhibits the teaching of a

particular secular subject viewed by that religious group

as antagonistic to its beliefs). The Act also symbolically

benefits those religious groups by conferring on their be-

liefs the “imprimatur of state approval.”

Finally, implementation of the Act will inevitably en-

tangle the state with religion. The Act will require con-

stant supervision, in the form of oversight of teachers

and review of textbooks, to ensure that religious doctrine

is not being taught, and it involves in the curriculum

development process persons who hold certain religious

views solely because they hold those particular views.

6

ARGUMENT

I. INTRODUCTION

Louisiana’s Balanced Treatment Act requires the

state’s public secondary and elementary schools to giv

“balanced treatment” to “creation-science”’ and “evolu-

tion-science.” * La. Rev. Stat. Ann. § 17:286.4(A)}. The

Act does not require either (or indeed any) theory of

origins to be taught, but it does require that whenever

evolution is taught, “creation-science’”’ must also be

taught. Jd. at § 17:286.5. This requirement applies to

classroom lectures, textbook materials, library materials

and other educational programs. /d. at § 17:286.4(A).

3oth evolution and “creation-science”’ are required to “be

taught as a theory, rather than as proven scientific fact.”

Id.

The Act also requires that each local school board de-

velop and provide to each public school teacher a cur-

riculum guide on the presentation of “creation-science,”’

id. at § 17:286.7(A), and it requires the governor to des-

ignate a panel of seven “creation-scientists” to assist lo-

eal school boards in developing the curriculum guides.

Id. at § 17:286.7(B).

Finally, the Act prohibits discrimination against any

teacher “who chooses to be a creation-scientist or to

teach scientific data which points to creationism.” /d. at

$ 17:286.4(C). It does not provide a similar protection

for teachers who choose to teach evolution.

Evolution has been described as “the greatest unifying

theory in biology,” E. Mayr, Populations, Species and

Evolution 1 (1970), and the vast majority of the world’s

“Balanced treatment” is defined as the “information and instruc-

tion in both creation and evolution models the classroom teacher

determines is necessary and appropriate to provide insight into

both theories.”” /d. at § 17:286.3(1). “Creation-science” is tautolog)

cally defined as “the scientific evidences for creation and inferenc¢

from those scientific evidences,” and “evolution-science”’ is similarly

defined. Jd. at 8 17:286.3(2), (8). The Act does not define “crea

tion” or “evolution.”

—

(

scientists believe that it best explains the facts relating

to the origin and development of life forms. The Balanced

Treatment Act does not require that public school teach-

ers simply explain that some religious groups reject this

important scientific theory, or simply identify ‘“creation-

science’ (or creationism) as the alternative belief of

those religious groups. Rather, it singles out evolution,

among all the secular matters in the public school cur-

riculum, and requires either that (1) the substance of

one alternative—creationism—be taught (whenever evo-

lution is taught) as if it were a science, or (2) that

evolution not be taught at all.

The narrow, but important, question thus presented

here is whether a state may require that evolution not

be taught in the public schools unless creationism is also

taught. Amici believe that such a requirement is incon-

sistent with the Establishment Clause of the First Amend-

ment, regardless of whether its ultimate aim and effect is

to eliminate evolution from the public school curriculum

or to promote the teaching of creationism.

The case also raises the more fundamental and far-

reaching issue of whether, as a general matter, a state

may require that the teaching of secular subjects be

“balanced” by the teaching of selected religious doctrine.

If Louisiana prevails here, there is no principled reason

why any majority, or any effective combination of mi-

norities, could not require that the teaching of any secu-

lar subject in the public schools be “balanced” by its

particular religious views.

If. THE ANTI-EVOLUTION ANTECEDENTS OF THE

LOUISIANA BALANCED TREATMENT ACT HAVE

BEEN HELD UNCONSTITUTIONAL BY THIS

COURT AND BY LOWER FEDERAL AND STATE

COURTS

The Balanced Treatment Act is the latest in a long

series of efforts by certain creationist religious groups to

foster the teaching of the Biblical account of creation in

the public schools and to eliminate the teaching of mod-

:

RQ

ern scientific theories of evolution. These efforts have

been part of a broader move—which this Court has con-

sistently and repeatedly rejected (whatever the asserted

justification) —to teach religious doctrine and conduct re-

ligious exercises in public schools.‘

The anti-evolution crusade began in earnest in the

1920’s, more than 60 years after Charles Darwin pub-

lished On the Origin of Species by Means of Natural

Selection (1859), his seminal work on the theory of

evolution.” With William Jennings Bryan as their most

prominent leader, creationists succeeded in enacting anti-

evolution laws in four states between 1923-28.° In the

celebrated Scopes Monkey Trial, the Tennessee anti-

evolution statute was held not to violate the Constitu-

tion.‘

1 See. e.g. Illinois ex rel. McCollum v. Board of Education, 323

U.S. 203 (1948) (use of public school facilities for religious classes

unconstitutional) ; Engel v. Vitale, 370 U.S. 421 (1962 recitation

of specific “non-denominational” prayer in public schools uncon-

stitutional); School District of Abington Township v. Schempp,

874 U.S. 203 (1963) (recitation of verses from Bible in public

schools unconstitutional, despite opportunity for students to be ex-

cused): Stone v. Graham, 449 U.S. 39 (1980) (per curiam (post

ing of Ten Commandments in public schools unconstitutional

Wallace v. Jaffree, 105 S. Ct. 2479 (1985) (minute of silence for

meditation or voluntary prayer unconstitutional

5 See E. Larson, Trial and Error: The American Legal Con

troversy Over Creation and Evolution 28-48 (1985).

6 The states were Oklahoma (1923), Tennessee (1925), Missis-

sippi (1926) and Arkansas (1928). See Larson, supra note 5, at

48-57, 75-81. Anti-evolution measures were introduced, but not

enacted, in 16 other state legislatures between 1921-29. See Ameri-

can Civil Liberties Union, The Gag On Teaching 8 (3d ed. 1940

In addition, the Florida legislature adopted a concurrent resolution

in 1923 declaring the teaching of evolution to be “ ‘improper and

subversive to the best interests of the people,’” Larson, supra note

5, at 53, and state and local educational boards in California, North

Carolina, Texas and Louisiana administratively restricted the teach

ing of evolution during the 1920's. See id. at 75.

7 This Court was prevented from reviewing the constitutionality

of the Tennessee statute when the Tennessee Supreme Court re-

9

The anti-evolution forces were publicly ridiculed as a

result of the Scopes trial, and over the next thirty years

no new anti-evolution legislation was enacted. Neverthe-

less, during that same period, efforts to repeal existing

anti-evolution laws failed, restrictions against the teach-

ing of evolution were imposed by local school boards, and

textbook publishers de-emphasized evolution because of

existing restrictions and fears of further controversy.*

Not until 1968 did this Court declare prohibitions on

the teaching of evolution to be unconstitutional. In Ep-

person v. Arkansas, 393 U.S. 97, 109 (1968), the Court

held that such a prohibition violates the Establishment

Clause because of its religious purpose and effect: “to

suppress the teaching of a theory which, it was thought,

‘denied’ the divine creation of man.” ®

Following Epperson, creationists adopted new tactics.

They first challenged, unsuccessfully, the teaching of

evolution as inhibiting their constitutional free exercise

rights."° They also challenged certain forms of govern-

mental support for evolution instruction as inhibiting

the free exercise of creationist religions and as estab-

lishing a religion of “secular humanism.” Again they

were unsuccessful.”

versed Scopes’s conviction for a technical error in sentencing. Ses

Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927

* See Larson, supra note 5, at 81-90.

® The Mississippi Supreme Court declared its anti-evolution stat-

ute invalid on the basis of Epperson in Smith v. State. 242 So. 2d

692 (Miss. 1970). Tennessee had repealed its statute in 1967. and

Oklahoma had repealed its law much earlier, in 1926.

' See Wright v. Houston Independent School District. 266 F.

Supp. 1208 (S.D. Tex. 1972), aff'd, 486 F.2d 137 (5th Cir. 1973

(per curiam), cert. denied, 417 U.S. 969 (1974); see also Mozert

v. Hawkins County Public Schools, No. CIV-2-83-401 (E.D. Tenn.

filed Dec. 2, 1983) (asserting claim that teaching of evolution and

other secular subjects violates free exercise rights

'l See Willoughby v. Stever, No. 1574-72 (D.D.C. 1972) (National

Science Foundation funding of textbooks discussing evolution held

10

+

Creationists also pressed state school authorities to

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discourage the teaching of evolution and permit the teach-

ing of creationism. In California, for example, the state

Board of Education was pressed into adopting a policy)

in 1970 giving equal recognition to creationism and evo-

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lution.'? The Board, however, repealed this policy in 1972

‘

and replaced it with one requiring simply that “ ‘dog-

matism be changed to conditional statements where spec-

ulation is offered as explanation for origins.’” '* This

policy was later approved in a lawsuit brought by crea-

tionists challenging the allegedly dogmatic presentatior

of evolution in California’s public schools."

In Texas, the state Board of Education was pressed

into adopting a policy in 1974 that required textbooks

to identify evolution as one of several explanations of

the origins of man and explain that any material pre-

sented on evolution was theory rather than verified fact.

In 1984, after the state Attorney General opined that

the policy was unconstitutional,’ the Board changed the

policy LO require only that all “ ‘[t|heories shall be clearly

distinguished from fact and presented in an objective

educational manner.”

In Indiana, the state Textbook Commission approved a

creationist text in 1975 for use by the state’s public

schools. When two local school boards adopted only the

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creationist text, the state Commission’s approval of that

text was challenged and struck down as an establishment

of religion.'*

Most recently, creationists have promoted the notion

that the Biblical account of creation is supported by sci-

entific evidence, and they have urged various state legis-

latures to compel the teaching of that account in public

schools. A Tennessee statute that required that evolu-

tion be identified as theory in public school textbooks, and

mandated “equal space” for other theories “including,

but not limited to, the Genesis account in the Bible,” was

declared “patently unconstitutional” by the Sixth Cir-

cuit.’

Arkansas’s “balanced treatment” statute, which closely

resembled the Louisiana Act, was recently ruled uncon-

stitutional by a federal district court:

[The Arkansas statute] was simply and purely an

effort to introduce the Biblical version of creation

into the public school curricula. The only inference

which can be drawn from these circumstances is that

the Act was passed with the specific purpose by the

General Assembly of advancing religion. The Act

therefore [violates the Establishment Clause].

McLean v. Arkansas Board of Education, 529 F. Supp.

1255, 1264 (E.D. Ark. 1982).*° Like its cousin in Arkan-

sas, the Louisiana Act also violates the Establishment

Clause of the First Amendment.

1S See Hendren v. Campbell, No. 8577-0139 (Ind. Super. Ct. 1977

19 Daniel v. Waters, 515 F.2d 485, 492 (6th Cir. 1975): see also

Steele v. Waters, 527 S.W.2d 72 (Tenn. 1975) (per curiam

“0 Measures similar to the Arkansas statute were introduced in

eight state legislatures in 1980 and fourteen in 1981. Only Arkansas

and Louisiana enacted balanced treatment laws. See Larson, supra

note 5, at 151. Earlier, in 1976, Kentucky adopted a statute that

gives public school teachers the option of presenting creationism

along with evolution. Students who receive such instruction can

receive academic credit for correctly learning the Biblical account.

Ky. Rev. Stat. § 158.177 (1980).

12

Iii. THE LOUISIANA BALANCED TREATMENT ACT

VIOLATES THE ESTABLISHMENT CLAUSE OF

THE FIRST AMENDMENT

The First Amendment provides that “Congress shall

make no law respecting an establishment of religion.” *'

Over the years, this Court has developed a wel!-defined,

three-part test to resolve Establisnment Clause questions.

To pass constitutional muster, (1) a “statute must have

a secular legislative purpose,” rather than a religious

purpose, (ii) “its principal or primary effect must be

one that neither advances nor inhibits religion,” and

(iii) it “must not foster ‘an excessive government entan

glement with religion.’” Lemon, 403 U.S. at 612-13

(quoting Walz v. Tax Commission, 397 U.S. 664, 674

(1970)). This three-pronged test is the legal standard

against which the Balanced Treatment Act must be

judged. As this Court noted recently, “‘We_have par-

ticularly relied on Lemon in every case involving the

sensitive relationship between government and religion

in the education of our children.” Grand Rapids School

Mstrict v. Ball, 105 S. Ct. 3216, 3222 (1985) .*

A statute is invalid under the Establishment Clause

if it fails to meet even one part of the Lemon test. As

The Establishment Clause is applicable to the states through

the Fourteenth Amendment Everson . Board of Education, 330

U.S. 1 (1947

“2 Appellants’ suggestion that the “alternative historical test’

employed in Mars/ . Chambers, 463 U.S. 7838 1983), should be

applied in this case, see Brief of Appellants at 29-32, is untenable.

As appellants themselves recognize, Marsh, in essence, carves out

an exception from the Establishment Clause for practices—such as

the opening of legislative sessions with a prayer offered by a chap-

lain paid with public funds—that were accepted as constitutional

at the time the First Amendment was adopted. Balanced treatment

yf creationism and evolution is not such a practice.

13

we now show, the Balanced Treatment Act runs afoul

of all three parts.”

A. The Purpose of the Balanced Treatment Act Is To

Advance Religion

The objective of the Balanced Treatment Act is self-

evident: it seeks either to promote the teaching of crea-

tionism in the public schools, or to eliminate the teaching

of evolution. Either way, its purpose is to advance

religion.

As a matter of common understanding, creationism is

a religious concept.** It involves the belief that life, mat-

“3 Justice O’Connor has articulated a refined version of the Lemon

test under which the Balanced Treatment Act also fails to pass

constitutional muster. See infra notes 36 and 41.

Justice Brennan has articulated still another test to measure

compliance with the Establishment Clause which invalidates involve-

ments of religious with secular institutions that, inter alia, “(a)

serve the essentially religious activities of religious institutions;

lor b) employ the organs of government for essentially religious

purposes... .”’ Schempp, 374 U.S. at 231 (Brennan, J., concurring

The Balanced Treatment Act also runs afoul of the Brennan test

since Louisiana is using its public schools to do the work of religious

institutions, viz., teach religious doctrine.

“4In a 1981 survey conducted by the Louisiana Department of

Education, more than 74 percent of Louisiana’s school] superin-

tendents said they understood “creation-science” to be a religious

doctrine: 39.5 percent identified it as the Biblical account of crea-

tion, and another 34.9 percent identified it as “the argument that

the universe was made by a creator.” Joint Appendix E—798-99

a Ray

Creationism is patently religious, notwithstanding appellants’ in-

sistence that it has a nonreligious meaning: “ ‘origin through abrupt

appearance in complex form of biological life, life itself, and the

physical universe.’” Brief of Appellants at 15 (quoting from affi-

davit submitted in support of appellants’ opposition to motion for

summary judgment). This “definition” appears nowhere in the Act

or its legislative history. Indeed, those who promote “creation-

science” understand it to include the following tenets: (i) that a

divine Creator created life and the universe from nothing; (ii) that

the Creator fashioned distinct “kinds” of plants and animals that

cannot give rise to new “kinds”; (iii) that a worldwide flood formed

14

]

i

ter and the universe were created from nothing by some

Supreme Being. These are undeniably religious tenets.

See, e.g., Torcaso v. Watkins, 367 U.S. 488, 489 (1961);

Davis v. Beason, 183 U.S. 333, 342 (1890). Creationism

is derived from. the Genesis account of creation in the

Bible, and this Court has previously observed that “the

place of the Bible as an instrument of religion cannot be

gainsaid.” Schempp, 374 U.S. at 224. A law that seeks

to introduce religious dogma into the public school class-

room indisputably has a religious purpose. See, ¢.g.,

Stone v. Graham.*®

Louisiana has attempted to avoid this result by calling

creationism “science.” But, as this Court has repeatedly

held, labels such as “science” or “morality” do not trans-

form religion into nonreligion. See, e.g., Stone v. Graham;

School District of Abington Township v. Schempp; Engel

v. Vitale.

3y the same token, evolution is-a venerable scientific

doctrine. While there is controversy as to which theories

of evolution best explain the origins and development of

man and other complex forms of life, there is near uni-

versal agreement among scientists that complex forms

fossils and other geological phenomena; and (iv) that life and the

universe were created relatively recently. See Amicus Curiae Brief

of 71 Nobe! Laureates, et al. at 7, 20-21. The parallels between

these tenets and the Biblical account of creation are obvious, and

they “convey an inescapable religiosity.”” McLean, 529 F. Supp. at

1265.

“5 See also Malnak v. Yogi, 592 F.2d 197, 215 (3d Cir. 1979

Adams, J., concurring “Once SCI/TM is found to be a religion,

the establishment resulting from direct government support of that

religion through the propagation of its religious ideas in the public

school system is clear.”

Appellants implicitly concede that the Act’s purpose is religious

when they argue that the Act ensures a neutral balance between

religion and nonreligion which “exclusive instruction in evolution

thwarts.” Brief of Appellants at 45. In other words, appellants

concede that evolution is a nonreligious subject and that “creation-

science’ is a religious doctrine that Louisiana seeks to “balance”

against it

15

of life did evolve from simpler forms over a period of

millions of years.*® It is also a matter of common knowl-

edge that that view is perceived by certain fundamental-

ist religious groups as irreconcilable with their belief in

the Genesis account of creation, and bitterly resisted for

that reason. Epperson, of course, teaches that a law that

prohibits a “theory which is deemed antagonistic to a

particular [religious] dogma,” 393 U.S. at 107, has a

religious purpose every bit as much as a law that prefers

a particular religious doctrine.

The religious purpose of the Balanced Treatment Act

is also apparent from other factors that the Court should

consider—the historical context in which the law was

enacted, the language and structure of the statute, and

its particular legislative history.*’ See McLean, 529 F.

Supp. 1268.

1. The Historical Context In Which the Balanced

Treatment Act Was Enacted Demonstrates That

Creationism Is a Religious Concept and That

Evolution Is Opposed by Some Religious Groups

Because It Is Viewed as Antagonistic to Their

Beliefs

The historical context in which the concept of “creation-

science” and the idea of balanced treatment legislation

developed has already been described. It is clear from

a review of that background that promotion of creation-

ism and attacks on evolution go hand in hand, and that

“6 See generally National Academy of Sciences, Science and Crea-

tionism (1984). It is significant that the five affidavits submitted by

appellants in opposition to appellees’ motion in the district court for

summary judgment offer no positive support for any alternative

theory of origins. Rather, they purport only to establish that par-

ticular theories of evolution are unproven. See Appendix B to Brief

of Appellants.

“7 In determining the “purpose” of a statute challenged under the

Establishment Clause, courts are not bound by legislative state-

ments of purpose, legislative disclaimers, or explanations advanced

during litigation by the statute’s proponents. See Stone, 449 U.S.

at 41-42; Schempp, 374 U.S. at 223-24.

16

both are products of deeply felt religious belief. See es-

pecially Epperson, 393 U.S. at 98, 107-09; Crowley, 636

F.2d at 741-48; McLean, 529 F. Sapp. at 1258-62;

Wright, 366 F. Supp. at 1209-11.

Moreover, it is significant that the organizations that

have attempted to give content to “creation-science,” ac-

tively promoted its introduction into the public school

curriculum, and orchestrated attacks on the teaching of

evolution, are clearly fundamentalist religious organiza-

tions.** Applicants for membership in the Creation Re-

search Society, for example, must sign a statement of

belief :

that the Bible is the written word of God and that

its assertions are historically and scientifically true;

that all basic types of living things, including man,

were made by direct creative acts of God as de-

scribed in Genesis; and that the Noachian Deluge

was a historical event.”®

The faculty at the Institute for Creation Research, the

research division of the Christian Heritage College, must

swear that they agree with the following doctrinal posi-

t10n:

‘We believe in the absolute integrity of Holy Scrip-

ture and its plenary verbal inspiration by the Holy

Spirit as originally written by men prepared for

God for this purpose. The scriptures, both Old and

New Testament, are inerrant in relation to any sub-

ject with which they deal, and are to be accepted in

their natural and intended sense . . . all things in

the universe were created and made by God in the

six days of special creation described in Genesis. The

creationist account is accepted as factual, historical

“8 These groups include the Institute for Creation Research, the

Creation Research Society, the Creation Science Research Center,

the Bible Science Association, and the Genesis School of Graduate

Studies. See McLean, 529 F. Supp at 1259-60; D. Nelkin, The

Creation Controversy: Science or Scripture in the Schools 77-87

(1982); Scheid, Evolution and Creationism in the Public Schools,

9 J. Contemp. L. 81, 94 n.55 (1983).

29 Nelkin, supra note 28, at 79.

17

and perspicuous and is thus fundamental in the un-

derstanding of every fact and phenomenon in the

created universe.’ *°

See also McLean, 529 F. Supp. at 1259-61.

In sum, passage of the Balanced Treatment Act was

not an isolated event. It was part of a process, reaching

more than sixty years into the nation’s past, that was

and continues to be pervasively religious. As the Court

of Appeals correctly noted:

(T]his case comes to us against a historical back-

ground that cannot be denied or ignored...

. . . Our decision is not made in a vacuum, aor do

we write on a clean slate. We must rec_gnize that

tie theory of creation is a religious belief. We cannot

divorce ourselves from the historical fact that the

controversy between the proponents of evolution and

creationism has religious overtones.

Aquillard v. Edwards, 765 F.2d 1251, 1253, 1256 (5th

Cir. 1985) (emphasis added).

2. The Language and Structure of the Balanced

Treatment Act Demonstrate That its Purpose

Is To Advance Religion

The Balanced Treatment Act is a unique incursion by

the Louisiana legislature into the public school classroom.

The Act is not part of any general legislative program of

curriculum oversight or designation.*' It singles out crea-

* Id. at 81 (quoting Christian Heritage College Catalog (1974) ).

‘The Louisiana legislature has addressed a small nuiaber of

other curricular matters, but only in very different and limited ways.

For example, it has enacted laws requiring that public schools offer

certain courses of study—such as the Constitution, French language

and culture, and civics—without in any way prescribing the content

of those courses. La. Rev. Stat. Ann. §§ 17:261, :272 (West 1982),

:274.1 (West 1982 & Supp. 1986). It has also established overall

objectives for a limited number of courses. See, e.g., La. Rev. Stat.

ie.

nis} ne among the alternative explanations ol

rins, labels “science” and requires that it be taught

] ? | ; ? ‘ 7.) ,

e} n is taug! By so doing, the Act accords

sn favored status. This specia! status 1s

enhanced bv the Act’s. prohibition of discrimination

S | win teacl creationism and its failure O

liati

those who teach evolutio1

and by its explic

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The Legislative listory of the Balanced Treat

ict Demonstrates That its Pur pose Is To

idvance Religion

ment

19

Creationism was described there as the “‘theory of creation

ex nihilo” and defined as:

the belief that the origin of the elements, the galaxy,

the solar system, of life, of all the species of plants

and animals, the origin of man, and the origin of all

things and their processes and relationships were cre-

ated ex nihilo and fixed by God.”

J.A. E—la-lb.

Those who testified for the bill in hearings before the

Senate Committee on Education confirmed that they un-

derstood creationism to ve a religious concept. For ex-

ample, the lead witness for the bill, Luther Sunderland,

an expert on “scientific creationism,” testified that:

the universe could not have generated itself accord-

ing to every known basic law in science that we know

about today. Therefore, this model postulates that

eve ryth ing was created by some intelligence or power

external to the universe. The original organisms that

were created, whatever these kinds were, were func-

tionally complete when created including man. Man

was ready to go when he hit this earth, so was every

ther originally created organism. ... Now we can-

not precisely define the creative kind but perhaps

there Was some mankind, dogkind, and horse kind,

etc. and from these we have gotten the many vari-

PLIES,

J.A. E—9-10 (emphasis added). Babs Minhennete, an-

her supporter of the bill, testified that:

[I think if you teach children that they are evolved

from apes, then they will start acting like apes. If

we teach them possibiv that they were created by an

Almighty God, then they would believe that they

20

were a creature of God and start acting like one

of God’s children.

J.A. E—25.

On June 24, 1980, the Senate Committee on Education

deferred action on the bill and authorized the committee

to study “scientific creationism.” Shortly thereafter, a

well-known creationist named Paul Ellwanger sent a copy

of his “Model Balanced Treatment Act” to Senator

Keith.** See Letter from Ellwanger to Keith (Aug. 5,

1980), J.A. E—749-52. In a September 9, 1980 letter to

Senator Keith, Ellwanger stated that:

I view this whole battle as one between God and

anti-God forces. .. . if evolution is permitted to con-

tinue with its monopoly in public education, then, in

effect, it will continue to be made to appear that a

Supreme Being is unnecessary. . . . So it behooves

Satan to do all he can to thwart our efforts and

confuse the issue at every turn.

J.A. E—763-64. In the same letter, he advised Senator

Keith to keep religious supporters of the balanced treat-

ment bill behind the scenes. J.A. E—764.

The Joint Subcommittee on Elementary and Secondary

Education held hearings in November and December,

1980, pursuant to the study resolution. During those

hearings, Senator Keith presented as his lead witness

Edward Boudreaux, a member of the Creation Research

Society. In his prepared statement, Boudreaux stated

that:

E]volution can in no way be accepted as authentic

science. Creation, on the other hand, requires the

direct involvement of a supernatural intelligence, and

thus cannot be directly tested by the scientific

method. ... Jt takes faith to accept creation as a

viable explanation of origins.

84 Eliwanger is described in McLean as an activist in the creation-

ist movement, and as a person who believes that “evolution is the

forerunner of many social ills, including Nazism, racism and

abortion.” 529 F. Supp. at 1261

21

J.A. E—153-54 (emphasis added). The Pro-Family

Forum, a conservative Christian political action group,

testified in a similar vein:*

The creation model postulates that all the basic sys-

tems of nature, including elements, stars, planets,

life and the major kinds of organisms, including man,

were created fully developed by super-natural crea-

tive processes during a primeval period of special

creation, following which conservative (rather than

creative) processes were established to govern the

completed creation.

J.A. E—169 (emphasis added). And during those same

hearings, Senator Keith stated that:

[I]t is my understanding that there are only two

basic concepts for the origins. One concept is that a

creator however you define that creator was respon-

sible for everything that is in this world. The other

concept is that it just evolved.

J.A. E—280.

In April, 1981, Senator Keith introduced a modified

version of Ellwanger’s Model Act as Senate Bill No. 86.

Bill No. 86 defined “creation-science”’ as:

the scientific evidences for creation and inferences

from those scientific evidences. Creation-science in-

cludes the scientific evidences and related inferences

that indicate: (a) sudden creation of the universe,

energy, and life from nothing; (b) the insufficiency

of mutation and natural selection in bringing about

development of all living kinds from a single organ-

ism; (c) changes only within fixed limits or origi-

nally created kinds of plants and animals; (d) sepa-

rate ancestry for man and apes; (e) explanation of

the earth’s geology by catastrophism, including the

occurrence of a worldwide flood; and, (f) a relatively

re-ent inception of the earth and living kinds.

* Promotion of the teaching of creationism, and opposition to

the teaching of evolution in the public schools, is high on the agenda

of the Pro-Family Forum. The organization asserted in a recent

newsletter that “|ejvolution is the basis of every anti-Christian

teaching.” Pro-Family Forum Alert 2 (June, 1986).

JA. E—298-99. The coincidence of this definition and

the Genesis account is manifest.

During hearings on the bill before the Senate Com-

mittee on Education, Senator Keith expressed an un-

disguised hostility to evolution: “{O]ur public school

children are being molested by secular humanism.

and| the cardinal principal [sic] or the cardinal doctrine

of those teachings is evolution.” J.A. E—3812-13.

While subsequent Senate amendments deleted much of

the specific language defining “creation-science,”’ no one

suggested that the meaning of ‘“creation-science” had

been changed and supporters of the amended bill con-

tinued to attach a religious meaning to “creation-science.”

For example, Edward Boudreaux, the Creation Research

Society member, testified as Senator Keith’s first ‘“‘sci-

entific’ witness during hearings before the House Com-

mittee on Education:

I can say without a doubt that there is evidence in

all areas of physical science which support creation-

science, which incidentally is simply to say that the

objective information of science does indeed point to

conditi ns of a creator....

J.A. E—501-02 (emphasis added). Senator Keith com-

mented during those hearings that, ‘““My preference would

be that neither [creationism nor evolution] be taught.”

).A. E—621.

The legislative history is thus clear both that ‘“‘crea-

tion-science’’ was understood to be a religious doctrine,

and that the balanced treatment requirement was in-

tended to ensure either that creationism be taught in

Louisiana’s public schools or that evolution not be taught

because of its perceived antagonism to the beliefs of

certain religious groups.”

Justice O’Connor’s variant of the purpose prong of the Lemor

ks “whether the government intends a statute to col

e

idorsement or disapproval of religion.’’ Wa

23

4. The Asserted Purpose of the Balanced Treatment

Act—“ Academic Freedom”—Does Not Justify the

Teaching of Religious Doctrine in Public Schools

Louisiana claims that the Balanced Treatment Act was

enacted, not for the purpose of advancing religion, but

“for the purposes of protecting academic freedom.” La.

tev. Stat. Ann. § 17:286.2. This assertion is untenable.”

First, academic freedom means, in general, the ability

of a teacher to determine, within reasonable bounds,

course content and methodology of teaching. H. Hudgins,

Jr. & R. Vacea, Law and Education 206 (1985). See also

Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

It is apparent from remarks made during the debates

on the Act that the vast majority of science teachers

prefer—as a matter of free academic choice—to teach

evolution ind not “creation-science.” * It is unreasonable

to assert that a law that compels public school teachers to

teach something they would otherwise choose not to

teach, or eliminates a subject they would otherwise choose

to teach, was intended to further academic freedom.

105 8S. Ct. at 2500 (O’Connor, J., concurring) (emphasis added

Because the Balanced Treatment Act clearly intends a message of

endorsement, it also fails this test.

‘7 Commentators agree that this avowed purpose is a sham. See,

e.g., Whitehair, Teaching the Tnreories of Evolution and Scientific

Cre ationisn in t } f Publi Sc/ ools My T/ f First A ie ndn ent Re gion

Clauses and Permissible Relief, 15 U. Mich. J.L. Ref. 421, 451-52

(1982

* For example, Eleanor Thomas, President of the Louisiana Sci-

ence Teachers Association, testified on behalf of the Association’s

mem!

ership that:

[he members of this organization are opposed to this legisla-

tion since they consider creationism to be outside the boundaries

of bona fide science. Any scientific concept that’s based on es-

tablished fact can be included in our curriculum already, and

no legislation allowing this is necessary. This group is opposed

to any legislation allowing the teaching of a questionable con-

cept, such as scientific creationisn This would simply tend to

imply credibility to a questionable concept.

J.A. E—616-17.

24

Second, and more importantly, even if “academic free-

dom” meant what appellants contend it does (7.e., the

interest of students in receiving selected additional in-

formation, Brief of Appellants at 36), it would not alter

the fact that what the Act seeks to promote is a religious

doctrine. This Court has repeatedly held that assertions

of a facially secular purpose, such as “the promotion of

moral values,” do not justify, under the Establishment

Clause, laws that in substance promote the teaching of

religious doctrine in public schools. See, e.g., Stone

Graham; School District of Abington Township v.

justified

*

Schempp; Engel v. Vitale. If “academic freedom

the teaching of creaticnism, the same justification would

permit any state to require the teaching of any re-

ligious doctrine in its public schools.

In short, it simply does not matter whether Louisiana

would like to expose its public school children to one par-

ticular alternative theory of origins. That is not a valid

secular purpose because the alternative chosen is a reli-

gious doctrine.

5B. The Primary Effect of the Balanced Treatment Act

Is To Advance Religion

Regardless of its purpose, the Balanced Treatment Act

violates the Establishment Clause because it will in-

evitably have the primary effect of advancing religion.

See Committee for Public Education & Religious Lib: rty

Nyquist, 413 U.S. 756, 773 (1973) (statute uncon-

stitutional because its effect was to advance religion, even

though it had a “secular legislative purpose’”’

First, the Act has the effect cf aiding in the dissemina-

tion of a religieus doctrine, and it does this in the

strongest possible way: by teaching it. While it is permis-

sible for a state to require public schools, for example,

o teach that certain religious groups believe in crea-

tionism as part o

€.d., Sehe mpp, 3

a course in comparative religion, sé

U.S. at 225, it is not permissible for

a State to require tnat the substance of a rells

2

Ain

OF

=

trine be taught as science in the public schools. “|The

| Establishment] Clause does absolutely prohibit govern-

ment-financed or government-sponsored indoctrination

into the beliefs of a particular faith.” Grand Rapids

School District, 105 S. Ct. at 3226.

Indeed, the Balanced Treatment Act advances a par-

ticular religious view, namely, that of certain funda-

mentalist Christian groups, and thus is especially inimical

to the Establishment Clause.*® As this Court explained in

Larson v. Valente, 456 U.S. 228, 244 (1982), “The clear-

est command of the Establishment Clause is that one

religious denomination cannot be officially preferred over

another.”

Second, the Act confers a symbolic benefit on religion

in violation of the effects test:

an important concern of the effects test is whether

the symbolic union of church and state... is suffi-

ciently likely to be perceived by adherents of the con-

trolling denominations as an endorsement, and by

the nonadherents as a disapproval, of their individ-

ual religious choices. The inquiry into this kind of

effect must be conducted with particular care when

many of the citizens perceiving the governmental

message are children in their formative years.

Grand Ramds School District, 105 S. Ct. at 3226 (foot-

note omi'ted); see also Larkin v. Grendel’s Den, Inc., 459

U.S. 116, 125-26 (1982).

Here, th» symbolic benefit arises by virtue of Louisiana’s

conferral of the “imprimatur of state approval” on one

particular religious group. Widmar v. Vincent, 454 U.S.

263, 274 (1981). Specifically, the Balanced Treatment

Act symbolically benefits certain fundamentalist religious

39 See Wood, “Scientific Creationism” and the Public Schools, 24

J. Church & St. 231, 240 (1982) (“‘[Sjcientific creationism’ has

been narrowly defined by a sectarian variety of Christian funda-

mentalism which is acceptable to neither mainline Christianity nor

to mainline Judaism, not to mention the numerous nontheistic reli-

gious traditions... .

‘)

6

sroups by mandating that one of their beliefs—creation-

ism-—be taught in public schools, and by explicitly pro-

5 |

viding that adherents of that belief be appeinted DY the

governor to participate in the curriculum development

ocess.*° Even if “creation-science”’ included some non-

reiigious elements, Loulslanas unique intrusion into tne

public school curriculum plainly would be perceived as an

1 . : ]

memes tee the ahate of o ennbionton ashiaton ' .

endorse Ine n D\ , if SLAC A aA raat VA Uidl reilglous move

. i ‘

ment

The Balanced Treatment Act, of course, may have the

effect, not of introducing creationism into the public

school curriculum, but of excluding the teaching of evo-

] - ] . + ; ‘ ; ++ Oo . > - — ] +

lution. In other contexts, this Court has recognized tha

“reply” or “equal time’ requirements are generally in-

hibitory. See, e.g., Miami Herald Publishing Co. v. Tor-

nillo, 418 U.S. 241, 257 (1974). School boards faced with

the balanced treatment requirement might we!l decide to

avoid controversy and teach neither evolution nor “crea-

tion-science.” This effect is made more likely by the fact

that the Act fails to prohibit discrimination against those

who teach evolution while prohibiting discrimination

. aan . | 4 n >} — _ 4 » . ,

against those who teach creationism. La. Rev. Stat. Anr

Chr S Part III.A.1

. Justice O’( nnors T 1 n f the effects test k whnetnel

rrespective f¢ rnment { pury e, the practice nder re

fact « message of endorsement or disappt

l Donne 165 U.S. 668, 690 (1984 O’Connor, J., con

irring); see also Wallace, 105 S. Ct. at 2501 (1985 O’Connor, J

concurring “The relevant issue is whether an objective observer,

cquainted with the text, leg tive history, and implementation of

the statute, would perceive it as a state endorsement of prayer in

The } need Treat nt Act ee does ! 1 message I

> . _+ 4 f : :

4 ernmen er rsemen relly nh pecaust I itionisn IS com

?

YY ’ | ’ TY | T er T rt 1 relly

Impeding the teaching of evolution because it is antag-

onistic to the religious beliefs of some is itself an imper-

missible religious effect. Epperson makes clear that a

law which has the effect of “blot({ting] out a particular

theory because of its supposed conflict with the Biblical

account” violates the Establishment Clause. 393 U.S. at

iU9,

Appellants defend the Act by arguing that it simply

ts an imbalance between religion and nonreligion.

Brief of Appellants at 45. Appellants are wrong on the

facts, for the law clearly favors creationism (religion)

over evolution (nonreligion). But even if the Act did

no more than ensure even-handed treatment, it would still

be unconstitutional. The effects test does not permit a state

to advance religion by requiring that religious doctrine

be taught in the public schools simply because secular sub-

jects would otherwise predominate in the curriculum. To

the contrary, the Establishment Clause prohibits just such

state spons p -of religious doctrine in the public

schools. See, «.g., McCollum, 333 U.S. at 209-12. Were

the law otherwise, a state could justify the introduction

of any religious doctrine into the public schools on the

ground that it provided “balance” in the curriculum

In short, the Balanced Treatment Act confers a sym-

bolic, as well as tangible, benefit on religion, and “con-

vey[s] a message that religion or a particular religious

belief is favored or preferred.’ Wallace, 105 S. Ct. at

2497 (O’Connor, J., concurring). Its primary (indeed its

sole) effect is thus to advance religion in violation of the

Establishment Clause.*

‘ ’ r} . > »*7 . ‘*P—>

See Whitehair, supra note 37, at 454 Because

_ : __-s ee

model so closely parallels the biblical a int, it im]

— £ —— ~— 7 —_— ; |

aura of empirical certainty to a specipe religious story i! re

gious effect is its primary, indeed sole effect.”

28

C. The Balanced Treatment Act Fosters an Excessive

Entanglement Between Government and Religion

In Lemon, this Court explained that “political division

along religious lines’ is “one of the principal evils”

that the Establishment Clause was intended to prevent.

103 U.S. at 622. The entanglement test serves this pur-

pose by requiring separate spheres of administration—

church and state—free of excessive interference from

and entanglements with each other. Thus, what the Court

alled the “classic warning” of the Constitution against

excessive government entanglement with religion admon-

shes us to guard against laws that “entangle the state

in details of administration.” Jd. at 615 (quoting Walz,

397 U.S. at 695 (Harlan, J., concurring) ). The Balanced

Treatment Act will inevitably result in excessive entan-

lement under this standard.

assuming that “creation-science” could be

rirst, even

taught without reference to religion (which amici believe

‘annot), state and local schoo! officials would be re-

quired constantly to monitor its presentation to prevent

instruction in religious doctrine because “creation-science’”’

is so closely identified with the Genesis account in the

Bible.*® This concern is especially serious because the

[t applies not only to textbooks and library materials, but

ilso to classroom teaching and other educational pro-

ms. La. Rev. Stat. Ann. § 17:286.4(A).

lanced treatment required by the Act is comprehensive

The monitoring and surveillance the Act would require

more extensive than the simple act of “dis-

ing| between secular and religious books” that

.

Tar

woe

ie in Board of Education v. Allen, 392 U.S.

1968). As this Court noted in Lemon, “Unlike

r Cannot de inspected once so as to de-

29

termine the extent and intent of his or her personal

beliefs and subjective acceptance of the limitations im-

posed by the First Amendment.” 403 U.S. at 619. Under

these circumstances, “‘{T]he very restrictions and sur-

veillance necessary to ensure that teachers play a strictly

nonideological role give rise to entanglements between

church and state.’” Karen B. v. Treen, 653 F.2d 897,

902 (5th Cir. 1981), aff'd mem., 455 U.S. 913 (1982)

(quoting Lemon, 403 U.S. at 620-21); see also Aguilar »v.

Felton, 105 S. Ct. 3232, 3237-38 (1985); Meek v. Pit-

tenger, 421 U.S. 349, 370 (1975).

In McLean, the court summarized the entanglement

problems posed by a statute that closely resembled the

Balaneed Treatment Act:

The State Department of Education, through its text-

book selection committee, school boards and school

administrators will be required to constantly monitor

materials to avoid using religious references. The

school boards, administrators and teachers face an

impossible task. How is the teacher to respond to

questions about a creation suddenly and out of noth-

ing? . . . The answer is obvious because the only.

source of this information is ultimately contained in

the Book of Genesis.

529 F. Supp. at 1272. So, too, will Louisiana’s Act foster

excessive entanglement between the state and religious

matters.

The Balanced Treatment Act runs afoul of the entan-

glement test for a second reason. It requires the governor

to designate a panel of seven “creation-scientists” to

assist local school boards in developing curriculum guides

on the presentation of “creation-science,”’ which are to be

provided to all public schoo! teachers. La. Rev. Stat. Ann.

: 17:286.7. “Creation-scientists,” as a group, are distin-

guished by their belief in the literal truth of the Bible and

their adherence to other fundamentalist Christian doc-

30

trines. The Act thus has the effect of involving in the

curriculum development process people who hold particu-

lar religious views solely because they hold those views.

This enmeshing of religion in the exercise of govern-

mental functions is just as offensive to the Establishment

Clause as the intrusion of the state into religious affairs.

As this Court noted in Larkin:

The Framers did not set up a system of government

in which important, discretionary governmental pow-

ers would be delegated to or shared with religious

institutions. ...

Ordinary human experience and a long line of

eases teach that few entanglements could be more

offensive to the spirit of the Constitution.

159 U.S. at 127.

CONCLUSION

l 2

Lit

For the foregoing reasons, this Court should affirm t

judgment of the Court of Appeals.

) +f les . ] :

Respectfuily submitted,

TIMOTHY B. DYK

Counsel of Recerd

A. DOUGLAS MELAMED

KERRY W. KIRCHER

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

(202) 872-6000

Counsel for Amici Curiae *