The evolution controversy did not come before the U.S. Supreme Court until Epperson v. Arkansas,[39] a 1968 challenge to the constitutionality of an Arkansas statute prohibiting the teaching of evolution.[40] By this time, the nonestablishment clause had been applied to the states, and in this case the Jeffersonian and Madisonian view of that clause carried the day. In other words, the challenge to the Arkansas law was successful because the case was seen as a dispute between religion and science.
An amicus brief in Epperson demonstrated to the Court that science was in fact at stake by including a statement signed by 179 biologists asserting that evolution “is firmly established even as the rotundity of the earth is firmly established.”[41] Another brief for the opponents of the statute, in a passage with roots in the eighteenth century, argued that the uninformed use “all forms of physical and mental torture, to maintain the status quo of their unenlightenment and their accepted beliefs.”[42] During oral argument, counsel for the State was asked, “What if Arkansas would forbid the theory that the world is round?”[43] And the Court’s opinion, in striking down the statute under the establishment clause, featured excerpts from arguments against fundamentalist religion generally.[44]
Commentary on Epperson has tended to focus on the doctrinal point that the Court found the statute unconstitutional because it had been enacted for a religious purpose.[45] But the Court’s proof of an illegal purpose consisted merely of citation to newspaper advertisements, letters to the editor, and law review articles.[46] No statement of any legislator was included. In other cases where a religious purpose seems likely, the Court has declined to find one or even to look very hard.[47] Academic emphasis on purpose or motive in the usual sense is misplaced here. The Court’s scrutiny of the statute was more intense than in the usual establishment case because the competing value at stake was science. Indeed, the Court said as much: “The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment.”[48] The Arkansas statute’s improper purpose was not to aid religion, but rather to aid religion at the expense of science.
The Supreme Court believed in Epperson that what it called the “monkey” law might be a curiosity from an earlier era, noting that, apart from Arkansas, only Mississippi had an anti-evolution statute on its books.[49] In 1970 the Mississippi law was struck down on the authority of Epperson.[50] But, contrary to the Court’s belief, the subject of the teaching of evolution in the public schools has remained a lively one. The fundamental challenge Darwin poses to the beliefs of many Americans cannot easily be put to rest.
Thus litigation has continued as anti-evolutionists try new techniques. But nothing they try can shake the dominance of the scientific world view in this legal arena. In 1975, the U.S. Court of Appeals for the Sixth Circuit struck down a Tennessee statute requiring that the teaching of evolution in public schools be accompanied both by a disclaimer that it is “theory” not “scientific fact,” and by an explanation of the Genesis account in the Bible without such disclaimer.[51] The court held that putting science at this disadvantage compared to religion was, under Epperson, a violation of the establishment clause.[52]
References:
39. 393 U.S. 97(1968).
40. The Arkansas statute was similar to the Tennessee statute involved in the Scopes case, Scopes v. State, 289 S.W. 363 (1927). See Harry A. Kalven, A Commemorative Case Note: Scopes v. State, 27 U. CHI. L. REV. 505, 510 n.14 (1960); Thomas I. Emerson & Herbert Haber, The Scopes Case in Modern Dress, 27 U. CHI. L. REV. 522 (1960); Malcolm P. Sharp, Science, Religion, and the Scopes Case, 27 U. CHI. L. REV. 529 (1960). See also Note, Constitutional Law: Validity of the Tennessee Anti-Evolution Law, 5 TENN. L. REV. 242 (1927).
41. Brief of the National Education Ass’n of the United States and the National Science Teachers Ass’n as Amici Curiae at 13a, Epperson v. Arkansas, 393 U.S. 97 (1968) (No. 7).
42. Brief for Appellants at 16, Epperson v. Arkansas, 393 U.S. 97 (1968) (No. 7).
43. Transcript of Oral Argument at 17, Epperson v. Arkansas, 393 U.S. 97 (1968)(No. 7). Counsel for Arkansas replied, “I would, first of all, hope that the Courts and the people would think that would be an unreasonable encroachment.” Id.
44. See 393 U.S. at 102 nn.9 & 10.
45. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 229 n.10, 230, 592, 836–37, 867 (1978); Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95, 120 n.125 (1971); John H. Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L. J. 1205, 1318 (1970); Frederic S. LeClercq, The Monkey Laws and the Public Schools: A Second Consumption?, 27 VAND. L. REV. 209, 217 (1974); Laurence H. Tribe, The Supreme Court 1972 Term: Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 22 n.103 (1973).
46. 393 U.S. at 107–9.
47. In Board of Education v. Allen, 392 U.S. 236 (1968), for example, the legislature enacted a textbook loan program that included parochial schools. The Court’s entire discussion of religious purpose consists of the following: “The express purpose of {701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose.” Id. at 243. In Epperson, however, the Court refused to accept the argument that the anti-evolution statute might have been motivated by a desire to keep a controversial subject out of the schools. 393 U.S. at 112–13 (Black, J., concurring).
48. 393 U.S. at 107.
49. 393 U.S. at 101, 102.
50. Smith v. State, 242 So. 2d 692 (Miss. 1970).
51. See Daniel v. Waters, 515 F.2d 485, 487, 489 (6th Cir. 1975).
52. Id. at 489–91. The court found that “the result of this legislation is a clearly defined preferential position for the biblical version of creation as opposed to any account of the development of man based on scientific research and reasoning.” Id. at 489. In Steele v. Waters, 527 S.W. 2d 72 (Tenn. 1975), the Supreme Court of Tennessee, following the Sixth Circuit decision, agreed that the Tennessee statute violated the establishment clause.
