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Entries for November 2007

November 30, 2007

From Scopes to Dover-27: The Dover verdict

(For previous posts in this series, see here.)

The judge who presided in the trial Kitzmiller v. Dover seemed to have a more sophisticated idea of the nature of science than Judge Overton in the 1982 case of McLean v. Arkansas. Judge Jones's full analysis of how he came to his conclusion that intelligent design was religion and not science (p. 64-89) is well worth reading because it gives an excellent summary of some basic ideas in the history, philosophy, and methodology of science.

Judge Jones based his ruling on arguments similar to those used by Judge Overton in McLean v. Arkansas, in which the latter ruled that creation science was also a religious belief and not science. This aspect of the opinion may end up being the most significant part of the verdict, with devastating consequences for the Discovery Institute's long-term goal of slowly bringing religion and god back into the schools. The reason that IDC strategists wanted to have their theory considered a science was that then that it would have a better chance of passing the Lemon test for satisfying the establishment clause.

Judge Jones said in his ruling:

After a searching review of the record and applicable case law, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research. (p. 64)

Judge Jones further added: "It is notable that not one defense expert was able to explain how the supernatural action suggested by ID could be anything other than an inherently religious proposition." (p. 31) He also pointed to the expert evidence given by the pro-IDC witnesses themselves (Michael Behe, Scott Minnich, Steven Fuller, and statements made elsewhere by other leading IDC figures Philip Johnson and William Dembski) and to the Edwards v. Aguillard and the McLean v. Arkansas precedents to conclude that "ID’s religious nature is evident because it involves a supernatural designer." (p. 29)

Judge Jones said in his ruling (p. 46) that all the Supreme Court precedents imply that "[T]he Establishment Clause forbids not just the explicit teaching of religion, but any governmental action that endorses or has the primary purpose or effect of advancing religion."

We saw that the history of the actions of the Dover school board had made it fairly easy to determine that the board had violated the purpose prong of the Lemon test. To determine whether it had also violated the effect prong and the endorsement test, Judge Jones' said in his ruling that what determines whether a law passes constitutional muster on these grounds is not only how one parses the actual wording of the legislation but also whether a reasonable and informed observer would interpret the effect of the law as an 'endorsement' of a particular religious viewpoint.

(This 'endorsement test' standard was articulated by Justice Sandra Day O'Connor in her concurring ruling in the1984 case of Lynch v. Donnelly where she said that the key issue was whether a government policy would be seen as an 'endorsement or disapproval of religion'. The use of an 'informed, reasonable observer' as the standard for making such a determination was articulated by her in the 2004 case of Elk Grove Unified School District. v. Newdow 542 U.S. 1.)

Jones said that in general:

The test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy's language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose. (p. 15, my italics)

In the specific cases of challenges to evolutionary theory, he looked at history and legal precedent and especially at:

a factor that weighed heavily in the Supreme Court's decision to strike down the balanced-treatment law in Edwards, specifically that "[o]ut of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects." (p. 48)

He went on:

In singling out the one scientific theory that has historically been opposed by certain religious sects, the Board sent the message that it "believes there is some problem peculiar to evolution," and "[i]n light of the historical opposition to evolution by Christian fundamentalists and creationists[,] . . . the informed, reasonable observer would infer the School Board's problem with evolution to be that evolution does not acknowledge a creator." (p. 57, my italics)

Notice that the standard used for judging the purpose of the law is what an 'informed, reasonable observer' would infer from the action. IDC advocates and supporters tried to implement their strategy by carefully choosing words and sentences free of any obviously religious connotations so that they would meet the letter of the law and thus hope that the policy will pass constitutional scrutiny. But what Judge Jones said is that it is not merely how the law is worded but also how a particular kind of observer, who is assumed to be much more knowledgeable about the issues than your average person in the street, would interpret the intent of the law.

This is a very damaging part of the verdict to the IDC case. IDC strategy has always been to undermine the credibility of evolutionary theory in science by singling it out for special scrutiny. They have never called for 'teaching the controversy' in all the other areas of science. Judge Jones said that since an 'informed, reasonable observer' would know that Christians have had long-standing objections to evolutionary theory on religious grounds, singling it out for special treatment would be seen by such an observer as tantamount to endorsing a religious viewpoint. (I have noticed this personally. I sometimes come across people who say they are skeptical about the theory of evolution and then quickly add that their opposition is not due to religious reasons, because they know that religion is why evolution is commonly opposed.)

And this is where the ghost of the Scopes trial appears again. Ever since that trial, the presumption has been that anyone who opposes the theory of evolution has primarily religious reasons for doing so. Justice Scalia in his dissent in Edwards v. Aguillard referred to this as "an intellectual predisposition created by the facts and the legend of Scopes. . .an instinctive reaction that any governmentally imposed requirements bearing upon the teaching of evolution must be a manifestation of Christian fundamentalist repression." The burden of proof is now on those who oppose evolution to prove that they do not have religious reasons for doing so, and that is a high standard to meet.

In a further telling statement that has direct implications for the Discovery Institute's 'teach the controversy' strategy, Judge Jones said:

ID's backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM [Intelligent Design Movement] is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. (p. 89)

In other words, he had seen right through the entire 'Wedge' strategy. After all, their strategy had precisely been to single out evolutionary theory for special treatment. They have resolutely opposed any attempt to call for 'critical analysis' and 'teaching the controversy' in all areas of science.

There is no way to see the Dover ruling as anything but a devastating blow to the entire stealth strategy promoted by the Discovery Institute. It took apart every element of their carefully constructed edifice, leaving only rubble.

Judge Jones delivered his verdict on December 20, 2005. Just after the trial ended on November 4, the Dover school board elections were held and a slate of anti-IDC candidates, including one of plaintiffs, were elected to the school board, replacing all eight of the former pro-IDC people who were up for re-election. As a result, the Dover verdict will not be appealed to a higher court and thus, like the Scopes trial, will not formally set a legal precedent for the nation.

But the impact of Dover, like that of Scopes, will be far ranging. Its consequences started to be felt almost immediately, as we will see in the next posting.

POST SCRIPT: Lesson in magic from the masters

Those two wonderful magicians Penn and Teller show how sleight of hand works.

November 29, 2007

From Scopes to Dover-26: The Discovery Institute's dilemma

(For previous posts in this series, see here.)

The Dover school board policy was challenged in December 2004 as a violation of the establishment clause and so the two sides prepared to go to trial. The lawsuit for the plaintiffs led by Tammy Kitzmiller was filed by the ACLU of Pennsylvania and included experienced constitutional attorneys from the firm of Pepper Hamilton and from the Americans United for Separation of Church and State.

The lawyers who appeared for the Dover school board were from the Thomas More Law Center based in Ann Arbor, Michigan, which saw itself as a kind of Christian counterweight to the ACLU. The center was created in 1999 by Thomas Monaghan, founder of the Dominos pizza chain and financial backer of conservative Catholic causes. Their website is very direct about its mission: "Our purpose is to be the sword and shield for people of faith, providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square." They were the ones who urged the Dover school board to adopt their policy, offering to represent them in court if challenged. The fact that the Dover school board had this offer of free legal representation undoubtedly influenced board members in the decision to adopt a policy they knew would be controversial.

But as the Dover case prepared to go to the trial that began on September 26, 2005, it became clear that the More Center lawyers were going to face difficulties. While they were surely earnest in their beliefs in the rightness of their cause, dedicated to fighting for it, religiously gung-ho, and eager to do battle against evolution, they simply did not have the legal resources or expertise or even people to mount the kind of research and sophisticated arguments necessary for such an important case. In addition, they faced a highly sophisticated and well-organized team of constitutional lawyers for the plaintiffs. They seemed to be out of their league.

As we have seen, the Dover school board's actions went contrary to the long-term strategy of the intelligent design creationism (IDC) movement advanced by the Discovery Institute. But once the die was cast and the Dover policy was adopted and challenged in the courts, the Discovery Institute was placed in a quandary. They could see that the More Center was not fully up to the task facing them but it was not clear how they could help. Should they completely disassociate themselves from the Dover school board actions and distance themselves from the case as it went down to likely defeat? Or should they throw themselves fully into the fray, provide their own expert witnesses, pour their considerable financial and legal resources into the case, and hope to secure victory? While the latter was a better tactical option since it increased the chances of winning this case, it had the considerable strategic downside in that if they still lost the case despite their full participation, then the entire IDC movement, not just the Dover school board, would be perceived as having been defeated, and this would have serious repercussions, even possibly dooming their long-term plans.

It was a difficult choice and they waffled. At first they agreed to be part of the case and to provide lawyers and expert witnesses, but that collaboration turned out to be short-lived and they later withdrew, giving as their reason that the Thomas More Law Center objected to their request to have the Discovery Institute's own lawyers representing their clients. One serious and negative consequence of the Discovery Institute's decision to withdraw their expert witnesses at the last minute was that it was now too late for the More Center to get alternative expert witnesses for their side. As a result, the plaintiffs were able put forward their own expert witnesses in science and philosophy and theology to provide testimony on important questions that was not rebutted in court and thus was accepted as fact, seriously weakening the defense's case.

The whole episode caused bad feelings between the Discovery Institute and the More Center which spilled out into the open, as The Toledo Blade reported on March 20, 2006:

In fact, when Mr. Thompson [the head of the Thomas More Law Center] decided to defend the Dover intelligent design policy, he angered the group most associated with intelligent design: the Discovery Institute, a conservative think-tank based in Seattle.

"We were incredibly frustrated by arrogance and bad legal judgment of goading the [Dover] school district to keep a policy that the main organization supporting intelligent design was opposed to," says John West, the associate director of the Discovery Institute's Center for Science and Culture.

The Thomas More Center acted "in the face of opposition from the group that actually represents most of the scientists who work on intelligent design."

. . .

The Discovery Institute has never advocated the teaching of intelligent design, and told the Dover board to drop its policy, Mr. West says. It participated in the trial only reluctantly.

"We were in a bind," Mr. West says. "Our ideals were on trial even though it was a policy we didn't support."

The More Center's head Richard Thompson countercharged that all these were just excuses to hide the real reason, which was that the Discovery Institute people were essentially cowards, people who talk a tough game but don't put their beliefs on the line when it counts:

Mr. Thompson says the Discovery Institute's strategy is to dodge a fight as soon as one appears imminent.

"The moment there's a conflict they will back away . . .they come up with some sort of compromise." But in Dover "they got some school board members that didn't want compromise."

This intramural battle between two groups supposedly on the same pro-IDC side did not augur well for the trial.

While the Dover trial did not involve larger-than-life, nationally known and flamboyant personalities like the Scopes trial, or dramatic moments like the questioning of Bryan by Darrow, it did have its comedic moments, such as when IDC theorist Michael Behe, who had advocated broadening the definition of science so that IDC would be included under it, conceded under cross-examination that such a broadened definition would result in astrology too being considered a science. Observers considered that moment a pivotal one in dooming the IDC case.

As almost everyone interested in this subject knows by now, on December 20, 2005 federal US District Court Judge John E. Jones III ruled resoundingly in favor of the plaintiffs and against the Dover school board. Not only did he rule that the Dover school board action was unconstitutional, he was also harsh and unsparing in his criticism of the school board's actions, saying: "The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources." (p. 138)

The judge said that both the Lemon test, and the reconceptualization of its purpose and effect prongs as an endorsement test by Justice O'Connor, would be applied to determine the constitutionality of the Dover policy.

The history and actions of the Dover school board clearly showed that it had religious motivations in implementing their policy and thus made it easy for the judge to rule against the school board on the grounds that they had failed to meet the purpose prong of the Lemon test and was thus unconstitutional by virtue of that fact alone. In addition, he found that the policy also violated that effect prong and failed the endorsement test.

The judge went further and also ruled on whether IDC was science. The IDC strategists had desperately wanted to avoid having a judicial determination on whether intelligent design was a science and in fact the Discovery Institute had filed an amicus curiae ("friend of the court") brief explicitly asking him not to rule on the question of the scientific validity of IDC.

But the judge felt that such a determination was proper, justifying this action by saying that the lengthy discussion on this very question in the trial meant that the issue had received a thorough airing and making such a determination was both useful and even essential. He said: "[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us." (p. 63)

The judge ruled that IDC was not a science but a religion.

It is this aspect of the judge's ruling that is likely to be most damaging to IDC's future prospects. Because the topic had received such an exhaustive examination during the trial, and because Judge Jones in his opinion had analyzed this question in such detail extending to 25 pages (p. 64-89), it seems likely that any future case involving intelligent design will depend heavily on his opinion and thus have a strong presumption that IDC is a religion. This is what happened with the Supreme Court in the 1987 case of Edwards v. Aguillard, where they depended heavily on the analysis of the nature of creation science that was written by US District Judge Overton in the 1982 case of McLean v. Arkansas.

It is worthwhile examining Judge Jones's reasoning in his opinion in some detail because although, like the Scopes trial, this case will not reach the Supreme Court, it seems likely to cast a similarly long shadow. This will be done in the next post.

POST SCRIPT: Roy Zimmerman explains Creation Science 101

November 28, 2007

From Scopes to Dover-25: The Dover policy on teaching evolution

(For previous posts in this series, see here.)

I previously showed how that the intelligent design creationism (IDC) strategists had laid out a careful long-term stealth strategy aimed at discrediting the teaching of evolution and breaking through the restrictions placed on religion in the schools because of the establishment clause in the First Amendment. They should have paid heed to Scottish poet Robert Burns who in his poem To a Mouse cautioned those who place too much faith in detailed plans for the future:

The best laid schemes o' Mice an' Men, 

Gang aft agley.

When historians of the future write about the demise of the Intelligent Design Creationism (IDC) movement, they will likely point to the Dover, PA court decision as when the carefully thought-out plans and strategy of the IDC movement ganged agley in a big way.

In some ways, the Dover trial was fitting bookend to the Scopes trial. I mentioned earlier that the Scopes trial had more features of a comedy than of a drama, and so did Dover case. As in the Scopes trial, a colorful cast of local characters impulsively waded into the midst of a national debate and completely muddied the waters. (See Matthew Chapman's article God or Gorilla in the February 2006 issue of Harper's Magazine for entertaining insights into what was going on in that small town before and during the trial. Chapman, incidentally, is a great-great-grandson of Charles Darwin.)

The Dover trial was from the beginning a bad situation for the IDC people, especially the strategists at the Discovery Institute, because it took events out of their control and put them in the hands of people who did not really understand what IDC was all about. The IDC theorists were trying to implement a carefully crafted stealth strategy, avoiding any taint of religion. The Discovery Institute's 'Wedge Strategy" required everyone to very discreet, carefully avoiding any mention of god or religion or anything remotely connected to them.

The problem was that the Dover school board was much too clumsy in its attempts to introduce IDC ideas into its curriculum. They had little patience for the subtlety of the slow, long-range plan envisaged by the Discovery Institute. They wanted god and the Bible and prayer back in their schools and they wanted it now. As a result, they left their religious fingerprints all over the policy in a way that the sophisticated strategists suspected would be fatal to its case. While the main IDC strategists were walking on egg shells, the Dover school board members were clumping around in thick boots.

The Dover school board by a 6-3 vote in October 2004 passed a resolution that "Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught." The actual policy to be implemented in January 2005 required students in biology classes to have a statement read to them that said, in part:

Because Darwin's Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

In enacting this policy, the religious members of the Dover school board, thinking they were doing god's work, effectively sabotaged the entire stealth strategy of the Discovery Institute. By explicitly naming and introducing IDC into the science class, they were inviting a court challenge that would expose the idea of intelligent design itself to direct judicial review, something the Discovery Institute had been carefully avoiding.

What is worse, the Dover school board even advocated a particular book Of Pandas and People, which had a blatantly creationist pedigree. The book had been around a long time and in its earlier incarnations was clearly advocating creationism. But creationism was ruled in Edwards v. Aguillard (1987) to be a religious belief that had no place in public schools. After that setback, a 'new' edition of the book came out that seemed to differ from the earlier versions mainly in the fact that someone had used the 'search and replace' function of their word processor to remove all references to the word 'creationism' and replace it with 'intelligent design' or its derivatives. The replacement was so blatant and sloppy that in one place in the drafts of this new edition, while seeking to replace the word 'creationists' with 'design proponents', they ended up with 'cdesign proponentsists'. This discovery, when revealed during the Dover trial, added weight to the argument that 'intelligent design' was simply creationism thinly repackaged, nothing more.

Recall that it was because of that same Edwards v. Aguillard decision that the Discovery Institute had carefully avoided any mention of creationism in its work. In fact, the entire 'Wedge' strategy was based on tailoring a policy that avoided all the features of religion mentioned in that landmark decision, and thus could hope to pass future constitutional scrutiny. IDC strategists feared that such a flimsy disguise as replacing the word 'creationism' with 'intelligent design' and their cognates, as the Of Pandas and People book did, was unlikely to fool the courts. Even worse, it would make it look as if the two terms were synonymous.

(The IDC strategists were right to be concerned about this weakness because Judge Jones said in his ruling that: "By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards. This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content.") (p. 32, italics in original)

The Dover board's actions thus made a hash of the IDC strategy, because it mixed creationism, intelligent design, and opposition to Darwin into one big entangled mess. To make it worse, the advocates of this Dover policy made no secret of the motives for their actions, and in school board meetings and other public forums spoke about how they were adopting their policy so as to bring god back into the schools. Even leading IDC advocate William Dembski ruefully noted the problem raised by his supposed allies:

Unfortunately, members of the Dover school board have, through their actions, conflated ID with an apparent religious agenda. For instance, it doesn't help the ID side that William Buckingham, then a member of the Dover school board, in trying to get the Dover policy adopted, remarked: "Two thousand years ago somebody died on the cross, can't somebody stand up for him?"

(Incidentally it was Dembski who in 2002 had explicitly laid out the goal of the IDC movement when he said: "So long as methodological naturalism sets the ground rules for how the game of science is to be played, IDT [intelligent design theory] has no chance [in] Hades. . . In the words of Vladimir Lenin, What is to be done? Design theorists aren't at all bashful about answering this question: The ground rules of science have to be changed. We need to realize that methodological naturalism is the functional equivalent of a full blown metaphysical naturalism. Metaphysical naturalism asserts that the material world is all there is (in the words of Carl Sagan, "the cosmos is all there ever was, is, or will be").")

As another example of the religious motivation behind the school board's actions that would cause problems during the trial, Buckingham had raised money in churches to buy sixty copies of the creationist textbook Of Pandas and People, gave the money to his fellow board member Alan Bonsell's father, who then donated them 'anonymously' to the school's library to be available as 'reference' books for biology students. Both Buckingham and Bonsell then denied, under oath in their depositions, any knowledge of where the books had come from. During the trial, this and other blatant acts of perjury were revealed in open court and clearly angered the judge and did not help their case, with the judge saying in his ruling "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."

The challenge to the Dover policy was not long in coming, when in December 2004 some Dover parents led by Tammy Kitzmiller, challenged the constitutionality of the school board's decision. The stage was now set for the latest courtroom confrontation involving the teaching of evolution.

POST SCRIPT: More stuff on Dover and intelligent design creationism

For all the documents pertaining to the Dover case including trial transcripts, depositions, and briefs, see the comprehensive Wikipedia page.

Judgment Day: Intelligent Design on Trial, the two-hour documentary on the Dover trial on PBS by the Nova producers can now be viewed online.

The documentary about IDC called A Flock of Dodos is available on DVD and a pro-IDC documentary Expelled: No Intelligence Allowed is to be released on Darwin's birthday in February 2008. (See Bad Idea Blog for a seven-minute promo for the latter film and a critique of it.)

November 27, 2007

From Scopes to Dover-24: Three trials leading up to Dover

(For previous posts in this series, see here.)

While all the strategizing in the wake of the 1987 Edwards v. Aguillard case was being done by the intelligent design creationism (IDC) advocates under the auspices of the Discovery Institute, three other cases all set legal precedents for what would happen in Dover.

In 2000, a case involving religion in schools but not directly involving evolution reached the US Supreme Court. This was Santa Fe Independent School District v. DOE 530 U.S. 290. This was a case where a challenge was made to a policy where the school district had a practice of one student, who had been elected as Santa Fe High School's student council chaplain, delivering a prayer over the public address system before each home varsity football game.

In a 6-3 ruling, the court ruled that such prayers were unconstitutional. For its ruling, the court relied on an alternative reading of the purpose and effect prongs of the Lemon test that was written by Justice Sandra Day O'Connor in the 1984 case of Lynch v. Donnelly involving the display of a nativity scene by a municipality. O'Connor articulated what is now called the 'endorsement test'. She said:

The second and more direct infringement [of the establishment clause] is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Writing for the majority in the 2000 Santa Fe case, Justice John Paul Stevens used that same language to overrule the policy of student-led prayer at football games:

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

This precedent was also used in the Dover case.

The second important case was also one that did not deal explicitly with evolution but had implications for Dover. It was the much publicized 2004 Elk Grove Unified School District. v. Newdow 542 U.S. 1 in which a parent Michael Newdow had challenged his daughter's school for including the phrase "Under God" in the Pledge of Allegiance. The US District Court ruled against him but this was overruled by the Ninth Circuit Court of Appeals who found in his favor. The case was then appealed to the US Supreme Court.

The Supreme Court reversed the Appeals Court verdict 8-0 but on mixed grounds (Justice Scalia did not take part in the case). Five justices said that due to a family dispute about whether the father or mother had custody of the child and the standing to sue, the courts had no jurisdiction to review the case. Thus they did not go into the merits of the case and decide whether saying the phrase "Under God" in schools was constitutional or not. Justices Rehnquist, O'Connor and Thomas agreed with the verdict overturning the Appeals Court decision but said that the Supreme Court should have reviewed the case on the merits. They then proceeded to do so and said that the practice was constitutional.

In her concurring opinion on the ruling, Justice Sandra Day O'Connor said the decision on whether the government is involved in an impermissible endorsement of religion had to be made from the viewpoint of a 'reasonable observer' who “must embody a community ideal of social judgment, as well as rational judgment. . .must be deemed aware of the history of the conduct in question, and must understand its place in our Nation’s cultural landscape."

The third case actually dealt with evolution and arose in 2002 when a school board in Cobb County, GA inserted stickers into their biology textbooks that informed students that "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."

The sticker policy was challenged and in January 2005, in Selman v. Cobb County School District, US District Court judge Clarence Cooper ruled the policy unconstitutional, applying again the Lemon test.

He said that the sticker policy passed the 'purpose' prong of the Lemon test:

[A]fter considering the additional arguments and evidence presented by the parties and evaluating the evidence in light of the applicable law, the Court remains convinced that the Sticker at issue serves at last two secular purposes. First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution. For the foregoing reasons, the Court concludes that the Sticker satisfies the first prong of the Lemon analysis.

However, he said that the sticker failed the 'effect' prong and this made it unconstitutional and thus the stickers had to be removed. He used Justice Stevens' language about endorsement in the 2000 Santa Fe case, and Justice O'Connor's appeal to how a 'reasonable observer' might perceive the action, as part of his justification.

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders.

All these legal precedents set the stage for the most recent court battle over the teaching of evolution, in which IDC came under direct scrutiny. This occurred in Dover, PA in 2005 in the case of Kitzmiller v. Dover, which I will begin to examine in the next post in this series.

POST SCRIPT: What topics are conservatives most interested in?

Some time ago, I wrote about how some people are trying to create an alternate reality on the internet so that people will not find their beliefs routinely challenged. Remarkably, such people consider Wikipedia and YouTube as part of this threatening reality, and created alternatives called Conservapedia and GodTube.

So now that time has passed, what topics are conservatives most interested in finding out about? Conservapedia has published the statistics. The results are interesting.

November 26, 2007

From Scopes to Dover-23: Why some religious people hate the theory of evolution

(For previous posts in this series, see here.)

To understand why there is such a deep-seated opposition to Darwin's theory of evolution by natural selection and how intelligent design creationism (IDC) came into being, one needs to understand its essential idea and the motivations of the people behind it.

On the surface, IDC seems to accept almost all of evolutionary ideas since it seems to leave unchallenged almost all of the key elements of the Darwinian structure, such as the non-constancy of species (the basic theory of evolution), the descent of all organisms from common ancestors (branching evolution), the gradualness of evolution (no sudden discontinuities), the multiplication of species, an old Earth, and natural selection as the driving mechanism for the process.

So how was IDC to advance the cause of religion if it seemed to accept so many evolutionary ideas? The strategy is explicitly outlined in an internal strategy document that has been labeled the 'Wedge Strategy' or the 'Wedge Document' put out in 1999 by the Center for Science & Culture of the Seattle-based Discovery Institute, which is the well-funded 'think-tank' that funds and supports the work of intelligent design creationists. This document came to light fairly recently, before the Dover trial, and it helped to undermine the case for the school board since it showed the religious motivations of those behind IDC.

Here is an extended passage from the introduction of the document that outlines the issues as seen by them:

The proposition that human beings are created in the image of God is one of the bedrock principles on which Western civilization was built. Its influence can be detected in most, if not all, of the West's greatest achievements, including representative democracy, human rights, free enterprise, and progress in the arts and sciences.

Yet a little over a century ago, this cardinal idea came under wholesale attack by intellectuals drawing on the discoveries of modern science. Debunking the traditional conceptions of both God and man, thinkers such as Charles Darwin, Karl Marx, and Sigmund Freud portrayed humans not as moral and spiritual beings, but as animals or machines who inhabited a universe ruled by purely impersonal forces and whose behavior and very thoughts were dictated by the unbending forces of biology, chemistry, and environment. This materialistic conception of reality eventually infected virtually every area of our culture, from politics and economics to literature and art. (my italics)

The cultural consequences of this triumph of materialism were devastating. Materialists denied the existence of objective moral standards, claiming that environment dictates our behavior and beliefs. Such moral relativism was uncritically adopted by much of the social sciences, and it still undergirds much of modern economics, political science, psychology and sociology.

Materialists also undermined personal responsibility by asserting that human thoughts and behaviors are dictated by our biology and environment. The results can be seen in modern approaches to criminal justice, product liability, and welfare. In the materialist scheme of things, everyone is a victim and no one can be held accountable for his or her actions.

Finally, materialism spawned a virulent strain of utopianism. Thinking they could engineer the perfect society through the application of scientific knowledge, materialist reformers advocated coercive government programs that falsely promised to create heaven on earth.

Discovery Institute's Center for the Renewal of Science and Culture seeks nothing less than the overthrow of materialism and its cultural legacies. (my italics)

This is why these religious people violently oppose Darwin's theory. They see him, along with Freud and Marx as the source of the decline of modern society. Of course, Darwin is the most prominent target since the works of the other two do not carry quite the same paradigmatic status and are not taught in public schools.

A little later in the Wedge document one comes across the "Governing Goals" of the movement, which are:

  • To defeat scientific materialism and its destructive moral, cultural and political legacies.
  • To replace materialistic explanations with the theistic understanding that nature and human beings are created by God.

So the goals of the IDC movement are clear. It takes aim at what it sees as the source of all evil, the idea that materialism is the basis of all knowledge. They feel that if they can displace materialism as an operating principle, then they can hope to eventually bring back a non-material god into the schools as an acceptable explanation of phenomena. The way they tried to do that was by arguing that there were a few biological systems of so-called 'irreducible complexity' whose existence was inexplicable using Darwinian materialistic methods and thus had to have non-material causes.

The long-term strategy of the Discovery Institute seems to be to first have the ideas of evolution undermined by allowing for the possibility of non-material causation for at least some evolutionary changes, then later introduce IDC as an alternative to the undermined theory of evolution, then bring god back into science education, and finally put god and the Bible and prayer back into public schools everywhere, thus saving the world from sin. They saw this as a slow, incremental advance, taking many years to reach its goal.

The strategy was quite carefully crafted and seemed to be making some progress. They got supporters elected to state school boards in Kansas and Ohio who inserted IDC-inspired language critical of evolution into their state science standards.

The IDC movement knew that eventually someone would challenge the use of IDC ideas in schools in the courts, and tried to avoid giving any reason for ruling IDC out on the basis of establishment clause violations. Their whole approach was to run a stealth campaign, based on what was essentially a public relations strategy. They carefully avoided talk of god as much as possible (at least in public). They did not even insist on teaching intelligent design in schools. Instead they adopted the strategy of asserting that evolution was 'just a theory,' that it had problems, that there was a controversy over some of its basic tenets, and that good science and teaching practices required that students be exposed to the nature of this alleged controversy. They got Cobb County in Georgia in 2002 to insert stickers in their biology textbooks that asserted that evolution was only a theory and not a fact.

This stealth approach caused some tension within the religious community since many religious people did not quite get it. Many fundamentalist Christians are militantly proud of their faith and do not feel at all apologetic about their attempts to kick evolution out and put god back in the classroom, since they felt he rightfully belonged there. They were proud of being Christians and they felt that the US was a Christian country. They viewed the delicate maneuvering of the IDC strategists not as a constitutionally astute strategy but as being somewhat cowardly, and needlessly accommodating of anti-Christian beliefs.

When I attended various IDC meetings in 2002 and 2003 I found a huge gulf between the IDC theorists who were the main speakers, and the rank and file attendees. The latter were largely fundamentalist, young Earth, Biblical literal Christians and they did not speak the sophisticated language of the IDC theorists. These people had a much simpler view of the world. In their view, the US was rapidly going to hell in a hand basket. Everywhere they looked, they saw signs of increasing decadence: more nudity, sex, pornography, abortions, crime, violence, profanity, blasphemy, and so on. They saw this as a direct consequence of removing god from the schools and teaching godless evolution, which said that we were no better than monkeys,

So while everyone agreed on the ultimate goal of removing the teaching of evolution from schools, the religiously naïve wanted to mount a direct assault to bring religion back into the classroom, while the more sophisticated IDC strategists felt that one needed to first subtly undermine the idea that materialist explanations were the only ones allowed by science, before introducing more overtly religious ideas.

These internal differences and tensions within the religious community about how to deal with the Darwinian menace stayed below the radar screen. It took the Dover trial to bring them completely out into the open.

POST SCRIPT: Chomsky on Iran

An interesting interview with Noam Chomsky on US-Iran relations.

November 23, 2007

The evil of the consumer economy

Each year, the Thanksgiving holiday is ruined by the revolting attention that the media pays to the retail industry in the days immediately following Thanksgiving. They wallow in stories of sales, of early-bird shoppers on Friday lining up in the cold at 4:00am to get bargains, fighting with other shoppers to grab sale items, people getting trampled in the crush, the long lines at cash registers, the year's "hot" gift items, and the breathless reports of how much was spent and what it predicts for the future of the economy. The media eggs on this process by giving enormous amounts of coverage to people going shopping, a non-news event if there ever was one, adding cute names like "Black Friday" and more recently "Cyber Monday."

Frankly, I find this obsessive focus on consumption disgusting. In fact, I would gladly skip directly from Thanksgiving to Christmas, because the intervening period seems to me to be just one long orgy of consumerism in which spending money is the goal. The whole point of the Christmas holiday seems to have become one in which people are made to feel guilty if they are not spending vast amounts of time and money in finding gifts for others. There is an air of forced jollity that is jarring, quite in contrast to the genuine warmth of Thanksgiving. And it just seems to stress people out.

Since I grew up in a country where people were encouraged to be frugal, often out of necessity, I still find it disquieting to be urged to spend as if it were somehow my duty to go broke in order to shore up the retail industry and help "grow the economy." I still don't understand that concept. An economy that is based on people buying what they do not need or can even afford seems to me to be inherently unsustainable, if not downright morally offensive.

There is a curious schizophrenic attitude one finds in the media to this consumption. On the one hand people bemoan the fact that the savings rate in the US is so low that the country has to borrow from overseas to meet its investment needs, that individual Americans are not saving enough for retirement, that they are living beyond their means because of easy access to credit, and that personal bankruptcies are on the rise. The current sub-prime mortgage debacle has been caused by people being urged to pay more for houses than they could afford, and now many face foreclosure and homelessness.

On the other hand, the media gleefully cheerleads when it is reported that people are going shopping, since this is supposed to be a 'consumer economy', and the stock market goes up when retail sales are high.

I don't get it. Apart from the fact that buying stuff other than to meet a direct need is simply wasteful, surely people must realize that we live in a world of finite resources, not just of fossilized energy but of minerals and other raw materials and even fresh water. Surely we should be cutting back on consumption so that we can leave something for future generations?

We are using up resources like there is no tomorrow and I am amazed that people don't see the disastrous consequences of this. It is not even a long-term issue since the resources crunch will start to manifest itself in around thirty years or so. I know that the 'end-timers', the rapturists and the like who think that the world is on the verge of coming to an end see this problem (and that of global warming) as nothing to worry about since Jesus will return very soon. But what about the others? Is it that religious people think that since we are special in the eyes of god, he will somehow pull a miracle out of his hat and save us from our profligate selves?

To me the long-term problem faced by the Earth having finite resources is so obvious that I am amazed that we are not doing anything drastic about it. Here is a suggestion to start. We begin by boycotting Black Friday, staying at home and enjoying a quiet day. We should also decide that we will only buy Christmas gifts for children under twelve years of age, and then too just a few simple things, rather than the expensive "must have" items that advertisers thrust on us. We must force a shift from a consumer economy to a sustainable economy

And we use the holidays mainly to spend time with people, enjoying the old-fashioned art of socializing.

POST SCRIPT: High finance explained

I have to admit that the world of high finance baffles me by its seeming irrationality. Two British comedians give the best explanation I have heard so far about the volatile stock market and the sub-prime mortgage crisis.

November 22, 2007

Thanksgiving musings

(This is a repost from Thanksgiving of last year, considerably added to and modified.)

For an immigrant like me, the Thanksgiving holiday took a long time to warm up to. It seems to be like baseball or cricket or peanut butter, belonging to that class of things that one has to get adjusted to at an early age in order to really enjoy. For people who were born and grew up here, Thanksgiving is one of those holidays whose special significance one gets to appreciate as part of learning the traditions and history and culture of this country. As someone who came to the US as an adult and did not have all the fond memories associated with the childhood experience of visiting my grandparents' homes for this occasion for a big family reunion, this holiday initially left me unmoved.

But over time, I have warmed to the holiday and it now seems to me to be the best holiday of all, for reasons that have little to do with its historical roots.

The first thanksgiving was supposedly held in 1621, sometime between September 21 and November 11, as a secular feast by the newly arrived pilgrims and was based on British harvest festivals. But this feast wasn't repeated and so cannot be considered the basis of the tradition. The modern thanksgiving tradition began with Abraham Lincoln in 1863, in an effort to unite a nation divided by the Civil War, declaring the last Thursday of November as Thanksgiving Day.

Commercial considerations have also been a part of the holidays with merchants being influential in setting the date. They want it close enough to Christmas so that people associate the holiday as a kick off for the shopping orgy, but not too close or people won't have a lot of time to shop. President Franklin D. Roosevelt wanted to change Thanksgiving Day to the third Thursday in November so as to lengthen the Christmas shopping season, but that was rejected by Congress and the compromise date of the fourth Thursday in November was approved in 1941 and that has been the date since.

I personally would like to see Thanksgiving shifted a month earlier to the last Thursday or so in October, not to lengthen the shopping season, but because there is a long drought of holidays between Labor Day and Christmas, and this would fall nicely in the middle. The weather would also be better for traveling, and it would coincide nicely with a mid-term break for college students.

I mainly like the fact that the holiday has (still) managed to avoid being commercialized and merchandized to death. There are no gifts and cards associated with it. There are no ritualized ceremonies, religious or otherwise, that one has to attend. There are no decorations or dressing up. Although the holiday's roots lie in giving thanks to god at the end of the harvest season for bounties received, that thin veneer of religiosity can be easily discarded and it is now essentially a secular holiday so no one need feel excluded. The thanks that are offered are just for the good fortune of being with family and friends, and not overtly religious. Our family has traditionally celebrated it with friends, all of whom have different religious heritages but are now secular. No prayers are said. We are just thankful for the opportunity to be together.

Thanksgiving is just a time to get together with family and friends around that universal gesture of friendship, sharing food. And even the traditional menu of turkey, stuffing, potatoes, yams, cranberry sauce, and pies, is such that it is not too expensive, so most people can afford to have the standard meal for a large number of people without going into debt. And although there is much talk of anticipated gluttony, in practice this also seems like just a ritualized and familiar joke, and most people seem to eat well but not in excess. There is also no tradition of drinking too much and rowdiness.

Thanksgiving seems to symbolize a kind of quiet socializing that is a throwback to a simpler, less crass and commercial time. It remains mostly an opportunity to spend a day with those whom one is close to, sharing food, playing games, and basking in the warmth of good fellowship. How can one not like such a holiday?

The only catch with Thanksgiving is that it is immediately followed by the horror show known as the "Christmas shopping season" which involves a disgusting orgy of consumption and waste, with merchandisers and the government urging people to buy things they do not need for people who may not want them.

I sincerely hope that Thanksgiving does not also become corrupted by merchandizing the way that Christmas has. But in our the present spend-spend-spend, buy-buy-buy culture you can be sure that retailers are eyeing that holiday too and it will require great vigilance to prevent it from sliding down that particular slope.

Happy Thanksgiving everyone!

POST SCRIPT: The power of prayer

American Dad goes to church and his prayers are answered.

November 21, 2007

From Scopes to Dover-22: Creation science is reborn as intelligent design

(For previous posts in this series, see here.)

It was with this history of US Supreme Court decisions in mind that we can understand the emergence of the intelligent design creationism (IDC) movement. IDC has to be understood as a carefully crafted theory that was designed to overcome the legal restrictions placed by the establishment clause on inserting religion back into the public schools.

The fundamental goal was still the same: to undermine the theory of evolution and to bring back into schools a god-centered view of creation. But mindful of all the legal setbacks that previous efforts had met, IDC advocates like Berkeley law professor Philip Johnson, tried to find a way to make it acceptable to the courts. Johnson is considered the father of the intelligent design creationism movement, and his book Darwin on Trial (1991) marked its beginning.

The Berkeley Science Review describes the founding of the movement:

Two years later [i.e. 1993], Johnson organized a meeting at Pajaro Dunes near Monterey to bring like-minded thinkers together. Its participants would become the major public figures in intelligent design: Scott Minnich and Michael Behe, who would testify on behalf of ID in Dover, Steven Meyer, who would direct the Discovery Institute's Center for Science and Culture, and Jonathan Wells, who pursued a PhD in molecular and cell biology at Berkeley after becoming convinced that he "should devote [his] life to destroying Darwinism."

As we have seen, a succession of judicial rulings had drastically narrowed the range of options open to evolution's opponents. To recapitulate, in the early days of the republic, public schools taught a generic Protestant-based ideology and the King James's Bible. But even before the theory of evolution had been announced by Charles Darwin in 1859, the idea of separation of church and state had gained ground and largely resulted by the end of the 19th century in the elimination of religious instruction and the Bible from schools. As the theory of evolution gained ground and became widely taught in schools in the early days of the 20th century, those who were sensitive to its negative implications for religion sought to ban its teaching in schools in order to restore neutrality between what they saw as religious and anti-religious viewpoints.

But attempts to forbid the teaching of evolution had been ruled unconstitutional in Epperson v. Arkansas (1968), the case that was the rightful successor to the Scopes case. The subsequent attempt in 1974 by Tennessee to restore the balance by explicitly teaching the Genesis theories of creationism along with evolution had been ruled unconstitutional by an appeals court and did not even reach the US Supreme Court. (The ever-resilient people of Tennessee tried again in 1996 to pass legislation restricting teaching evolution in schools. The effort failed, presumably because enough legislators realized that they were facing an uphill constitutional battle. (Larson, p. 262))

Realizing that trying to keep evolution out of the schools was futile and introducing explicitly religious ideas into the curriculum to balance evolution was also going nowhere, religious people adopted the 'equal time' or 'balanced treatment' strategies that Arkansas and Louisiana attempted in 1981. This removed explicit references to religion and the Bible, and instead requested equal time for something called "creation science" to counter the effects of evolution. That strategy had not swayed the courts either, with the Arkansas statute overturned in 1982 in a federal district court and the Louisiana statute overturned by the US Supreme Court in 1987 in Edwards v. Aguillard.

This did not leave religious advocates with much room to maneuver. People who wanted to bring back god into the classroom realized that it required a much more subtle and sophisticated strategy than what had been tried before. The first thing they had to do was to disown any formal links with earlier creationism movements such as "creation science" since those movements had already been tainted by being identified with one particular religious view and teaching that view been rejected by the courts as violating the establishment clause. In Edwards v. Aguillard, the court had made this point quite clear: "The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching." The decision said that the creation science legislation failed all three Lemon tests: the legislation must have a secular purpose, its primary purpose must be neutral towards religion, and avoid excessive entanglement of the government with religion.

This is why the IDC people tried to avoid at all costs being associated with "creationist" label. It was seen as the kiss of death, as far as constitutional acceptability went. The IDC strategy would be to never even mention the Bible or god or Christianity or creationism or creation science, or even to require the teaching of any alternative theories to evolution, since that too had been seen as constitutionally suspect.

The only option that remained was to seek to discredit the theory of evolution altogether by undermining its credibility. In order to do this, two of the original IDC strategists, Michael Behe and Jonathan Wells wrote their own books, Darwin's Black Box (1996) and Icons of Evolution (2000) respectively, both targeting evolution and alleging that the theory had fatal weaknesses. These books would become the sacred texts of the IDC movement. Wells' book follows up a 1978 book that also sought to highlight the alleged weaknesses of evolution, Evolution – The fossils say no! by Duane Gish. (It is interesting that the IDC movement umbrella covers a wide spectrum of religious believers, with Behe being a Roman Catholic and Wells a member of the Unification Church of Reverend Sun Myung Moon.)

Of course, such a minimalist strategy of merely discrediting the theory of evolution by natural selection fell far short of the goals that fundamentalist religious people wanted, which was to bring back into the schools prayer and Bible readings as well as the Genesis story. Since the IDC movement needed the political and economic support of these religious people, what we saw was a delicate maneuvering, trying to balance the legal requirement to avoid seeming to have anything to do with religion, while at the same time reassuring religious believers that intelligent design was a way of getting religion back in the schools.

So there developed an elaborate and carefully choreographed dance, consisting of nods and winks and nudges to the faithful that the IDC movement was merely the vanguard designed to get the religious nose into the tent of the schools. Once that had been established, once the wall of separation in the establishment clause prohibition had been breached in that way, it was felt that the other religious practices could be slowly re-established. This strategy was fully laid out in an IDC internal document known, appropriately enough, as the 'Wedge Strategy', which will be described in the next posting.

POST SCRIPT: Creation Science 101


November 20, 2007

From Scopes to Dover-21: The death of 'creation science'

(For previous posts in this series, see here.)

In the previous post we saw how the goal of trying to get creationist ideas back into the science classroom took the form of the birth of 'creation science' and calling for it to be taught along with evolution. While 'creation science' had no explicitly religious language, it was clearly a Genesis-based, young Earth, Biblical creationism. The 1981 Arkansas law calling for the balanced treatment of creation science and evolution was promptly overturned in 1982 by a US District Court judge.

The Louisiana 'balanced treatment' act of 1981 was less restrictive than the Arkansas one, since its call for teaching creation science merely meant talking about the "scientific evidences for creation and inferences from those scientific evidences". So while that gave its backers initial hopes that it would survive constitutional challenge, by now the historical record of religious-based efforts to undermine the teaching of evolution, starting with the Scopes trial, was too heavy a baggage for these efforts to overcome. It had become increasingly difficult to argue that the fight against the teaching of evolution was not religion-based, and this ended up dooming the Louisiana statute. The Louisiana Act, like its Arkansas counterpart, was overturned by a US District Court. The case was then appealed to a federal Appeals Court, where the District Court ruling was upheld by a narrow 8-7 margin.

The trail linking opposition to the teaching of evolution to advocacy of religion was just too long, and the ghost of the Scopes trial emerged from the shadows again. As the federal Appeals Court panel said when it made its ruling: "The case comes to us against a historical background that cannot be denied or ignored. . .The Act continues the battle William Jennings Bryan carried to his grave. The Act's intended effect is to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief. The statute therefore is a law respecting a particular religious belief. . . and thus is unconstitutional." (Summer of the Gods, Edward J. Larson, 1997 p. 259)

The narrowness of the margin must have given the law's supporters hope that the US Supreme Court might overturn the verdict, and the Appeals Court ruling was appealed. But their hopes were dashed. The Supreme Court in a 7-2 ruling (with Chief Justice Rehnquist and Justice Scalia dissenting) issued its verdict on this case in 1987 in Edwards v. Aguillard 482 US 578, in which it said that the Louisiana statute violated the establishment clause.

The summary of the majority opinion stated:

(a) The Act does not further its stated secular purpose of "protecting academic freedom." It does not enhance the freedom of teachers to teach what they choose, and fails to further the goal of "teaching all of the evidence." Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a "basic concept of fairness" by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism, but not for teaching evolution, by limiting membership on the resource services panel to "creation scientists," and by forbidding school boards to discriminate against anyone who "chooses to be a creation scientist" or to teach creation science, while failing to protect those who choose to teach other theories or who refuse to teach creation science. A law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counterbalancing its teaching at every turn with the teaching of creationism.

(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. (my italics)

By now it was clear that the Supreme Court had determined that attempts to teach anything along the lines of 'creation science' or to discredit evolution sprang from basically a religious motivation and thus any legislative attempts to do so ran into the immediate presumption that it violated both the purpose and effect prongs of the 1971 Lemon test, thus violating the neutrality requirement set forth in the 1947 Everson ruling.

The next establishment clause case was not directly related to religion in schools but had implications for it that showed up in later cases. It was the 1989 case of County of Allegheny v. ACLU 492 US 573 where some citizens had challenged the practice of having a crèche and a menorah on display in the county courthouse. The court in a 5-4 ruling said that the crèche was unconstitutional. In the majority opinion, Justice Harry Blackmun reiterated the belief that the government must be secular and also addressed the issue of whether denying Christians the right to display their religious symbols was, in effect, favoring nonbelievers.

The Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating against citizens on the basis of their religious faiths. Thus, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of nonadherents must fail, since it contradicts the fundamental premise of the Establishment Clause itself. In contrast, confining the government's own Christmas celebration to the holiday's secular aspects does not favor the religious beliefs of non-Christians over those of Christians, but simply permits the government to acknowledge the holiday without expressing an impermissible allegiance to Christian beliefs.

Although the close 5-4 vote in this case may have initially given some hope to religious groups, even the minority opinion, while disagreeing with this specific verdict and arguing that the crèche was merely a passive symbol reflecting the heritage of the nation and unlikely to lead to the establishment of a state religion, reiterated the basic consensus that the government should not be in the position of seeming to favor one religion.

[T]he Establishment Clause permits government some latitude in recognizing the central role of religion in society. Any approach less sensitive to our heritage would border on latent hostility to religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion, and so to the detriment, of the religious. Thus, this Court's decisions disclose two principles limiting the government's ability to recognize and accommodate religion: it may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to a religion in such a degree that it, in fact, establishes a state religion or tends to do so. In other words, the government may not place its weight behind an obvious effort to proselytize on behalf of a particular religion. (my italics)

So although this case did not involve evolution, it reinforced the legal principle that the government should practice strict neutrality when it came to matters of religion.

It is in the light of all these US Supreme Court precedents that the intelligent design creationism movement came about. It was designed specifically to overcome these restrictions, especially those that had been enunciated in the 1987 Edwards v. Aguillard ruling.

POST SCRIPT: Mickey and the Pope

I recently viewed the film The Da Vinci Code which was largely a waste of time because of its preposterous plot (perhaps the book is better) and was barely made watchable by the engaging presence of its two stars Tom Hanks and Audrey Tatou.

The story makes much of the hidden symbolism in Leonardo Da Vinci's painting The Last Supper. What some people may not know is that the Pope also commissioned Michelangelo to do a similar portrait that, alas, did not turn out well, as this clip shows.

November 19, 2007

From Scopes to Dover-20: The birth of 'creation science'

(For previous posts in this series, see here.)

Following the overturning of the 1974 Tennessee "equal emphasis" law, neighboring Axis of Weevils member state Arkansas took the lead in trying to find ways to undermine evolution and introduce religious ideas of creation into the biology curriculum in ways that would not violate the establishment clause. The lesson they drew from the Tennessee case was that any legislation aimed at achieving these goals had to be worded in neutral ways that avoided any and all religious language or references to the Bible. What emerged from this effort is what is now known as 'creation science', a superficially non-religious alternative to the theory of evolution by natural selection.

On March 19, 1981, the Governor of Arkansas signed into law Act 590, titled Balanced Treatment for Creation-Science and Evolution-Science Act. Its essential mandate is stated in its first sentence: "Public schools within this State shall give balanced treatment to creation-science and to evolution-science." The Act stated, among other things, that "Creation-science is an alternative scientific model of origins and can be presented from a strictly scientific standpoint without any religious doctrine just as evolution-science can, because there are scientists who conclude that scientific data best support creation-science and because scientific evidences and inferences have been presented for creation-science." (my italics)

The statute defined both 'creation science' and 'evolution science' as follows:




"Creation-science" includes the scientific evidences and related inferences that indicate:

(1) Sudden creation of the universe, energy, and life from nothing;


(2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism;

(3) Changes only within fixed limits of originally created kinds of plants and animals;

(4) Separate ancestry for man and apes;


(5) Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and

(6) A relatively recent inception of the earth and living kinds.

"Evolution-science" includes the scientific evidences and related inferences that indicate:

(1) Emergence by naturalistic processes of the universe from disordered matter and emergence of life from nonlife;

(2) The sufficiency of mutation and natural selection in bringing about development of present living kinds from simple earlier kinds;

(3) Emergence by mutation and natural selection of present living kinds from simple earlier kinds;

(4) Emergence of man from a common ancestor with apes;

(5) Explanation of the earth's geology and the evolutionary sequence by uniformitarianism; and

(6) An inception several billion years ago of the earth and somewhat later of life.

Notice that there are no explicit references to the Bible or religion or god in the definition of creation science, although the original source of the ideas behind them is quite obvious. Creation science is essentially Biblical, young Earth creationism, just using different words.

This law was, of course, challenged and in 1982 in McLean v. Arkansas, US District Court Judge William R. Overton, declared the law to be unconstitutional. He said that it failed to meet all three prongs of the Lemon test for constitutionality.

Discerning the intent or purpose of a law is not straightforward, as Justice Hugo Black pointed out in his opinion in Epperson, and courts take into account more than just the wording of the statute or what legislators say is the intent of a law. As Judge Overton said:

Courts are not bound, however, by legislative statements of purpose or legislative disclaimers. In determining the legislative purpose of a statute, courts may consider evidence of the historical context of the Act, the specific sequence of events leading up to passage of the Act, departures from normal procedural sequences, substantive departures from the normal, and contemporaneous statements of the legislative sponsor.

In his ruling Judge Overton, using the testimony of philosopher of science Michel Ruse as a guide, tried to define what science is, saying:

A descriptive definition was said to be that science is what is "accepted by the scientific community" and is "what scientists do."...More precisely, the essential characteristics of science are:
It is guided by natural law;
It has to be explanatory by reference to natural law;
It is testable against the empirical world;
Its conclusions are tentative, i.e. are not necessarily the final word; and
It is falsifiable.

The judge said that creation science failed to meet these criteria and was thus not science. He added "The creationists' methods do not take data, weigh it against the opposing scientific data, and thereafter reach the conclusions stated in Section 4(a). Instead, they take the literal wording of the Book of Genesis and attempt to find scientific support for it. . . While anybody is free to approach a scientific inquiry in any fashion they choose, they cannot properly describe the methodology as scientific, if they start with the conclusion and refuse to change it regardless of the evidence developed during the course of the investigation."

Many philosophers of science have criticized the judge's use of this definition of science (and the testimony of Ruse that it was based on), saying that it is not supported by the historical record of science. (For a thorough airing of the philosophy of science issues raised in this trial, see the book But Is It Science? (1996, edited by Michael Ruse) which is a collection of articles by those who criticized and supported the position put forward by Ruse in the trial.) They argued that while such a definition of science may have served the short-term purpose of keeping creationism out of science classrooms, making the definition of science into this kind of prescriptive list was not only unjustifiable but allowed people to try and find ways to insert religion into the curriculum by devising ways to conform to this definition while yet subverting science. Some philosophers argued that what was wrong with creation science and why it should not be taught was that it was really bad science. But of course, the establishment clause of the US constitution does not explicitly prohibit the teaching of any theories just because they are bad or discredited or even downright silly. Which brings us once again to the unresolved question of who should decide what should be taught in schools and what constraints, if any, apply to them.

Meanwhile, also in 1981, the third member state of the Axis of Weevils (Louisiana) passed an act similar in spirit to the Arkansas one, called the Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act that said that "Commencing with the 1982-1983 school year, public schools within this state shall give balanced treatment to creation-science and to evolution-science." It further said that 'balanced treatment' means "providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories."

Unlike in Arkansas, where creation science was explicitly described in the statute itself, in the Louisiana statute this was left vague, merely saying that teaching creation science meant just teaching "the scientific evidences for creation and inferences from those scientific evidences." The backers presumably hoped that this vagueness would not constitute a requirement for religious instruction, and thus pass constitutional muster.

Not surprisingly, the Louisiana statue was also challenged and, as we shall see next, the resulting 1987 verdict in the case of Edwards v. Aguilar became, after Epperson in 1968, the next landmark US Supreme Court ruling dealing directly with the teaching of evolution in public schools.

POST SCRIPT: Ask an atheist

The Case Campus Freethought Alliance (CFA) is having a panel discussion titled Ask an atheist, where popular misconceptions about atheism can be discussed and dispelled. The session will be held on Tuesday, November 20, 2007 at 7:00 pm in Strosacker Auditorium.

The panel consists of Gary Parker (double alumnus of electrical engineering of Case and member of the North East Ohio chapter of the Center for Inquiry), Christopher Ryan (physics graduate researcher), Batool Zaidi, (chemistry and biology undergraduate), and myself.

Some topics that might arise are:

How do atheists perceive morality?
Is life empty without religion?
Is atheism the same as nihilism?
Are atheists arrogant?
How do atheists deal with death?

The CFA is "dedicated to promoting and defending reason, science and freedom of inquiry in education, and to the enhancement of freethought, skepticism, secularism, humanism, philosophical naturalism, rationalism, and atheism on college and high school campuses throughout North America and around the world."

Drop by if you are in the neighborhood.

November 16, 2007

From Scopes to Dover-19: The Lemon test for the establishment clause

(For previous posts in this series, see here.)

The 1968 Epperson ruling left open the question of what should be done about the teaching of some scientific theory that went clearly went against a religious belief. Wouldn't allowing the teaching of just that theory without balancing it with the teaching of the religious belief violate the strict neutrality, as required by the 1947 Everson verdict?

The concerns raised by Supreme Court Justices Black and Stewart in Epperson were good ones and it was another case in 1971 Lemon v. Kurtzman, 403 U.S. 602 that, although not dealing directly with the teaching of evolution, led to further clarification of this tricky issue and lay the groundwork for future evolution cases.

The Lemon case arose from two separate laws bundled together. One was passed in Rhode Island that provided "for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion." The second law was passed in Pennsylvania and authorized "the state Superintendent of Public Instruction to "purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." "

In overturning both these laws by votes of 8-0 and 8-1, the Court promulgated what is now called the 'Lemon test' that says that for any law to pass establishment clause constitutional muster, it must meet a three-pronged test:

First, the statute must have a secular legislative purpose (the 'purpose' prong)
Second, its principal or primary effect must be one that neither advances nor inhibits religion (the 'effect' prong);
Finally, the statute must not foster "an excessive government entanglement with religion." (the 'entanglement'' prong)

This set of guidelines tried to address Black's concerns expressed in the Epperson case by requiring that laws must have a secular purpose and that the primary effect of the law must be religiously neutral. In other words, the intent of the law must be secular and just because some law had the incidental effect of advancing or inhibiting religion did not automatically disqualify it. It also added a third criterion, requiring that the law must not result in the government getting too mixed up in the affairs of religion. The court ruled that the Rhode Island and Pennsylvania policies would result in the state having to have detailed and complicated financial and other dealings with parochial schools, thus violating the entanglement prong.

Thus applying the Lemon test, even if a scientific theory like evolution expressly goes against a religious belief, teaching just that theory and not the opposing religious belief does not violate the neutrality requirement of the establishment clause because teaching science has a clearly secular purpose, since the goal of teaching science is to advance scientific knowledge and not to undermine religion. If religion happens to be undermined because of teaching a particular scientific theory like evolution, that is an incidental, not primary, effect. By contrast, it would be unconstitutional to teach a theory whose primary intent or effect was to undermine religion.

Faced with these strong majorities by the Supreme Court on religion in schools, religious groups who opposed the teaching of evolution and/or wanted to introduce creationist alternatives into the science curriculum tried to find ways to do so that would (a) make creationism scientific (thus meeting the needs of the secular 'purpose prong' standard) and (b) be at least neutral in its primary effect (thus meeting the 'effect prong' standard).

Such groups felt that these conditions could be met by appealing to the principle of 'fairness', that students should be taught both sides of any controversial issue as part of good teaching practice.

As I wrote in Quest for Truth: Scientific Progress and Religious Beliefs (2000, p. 5):

Rather than seek the elimination of the teaching of evolution, a strategy that had not worked earlier, the emphasis now shifted to what was called a "balanced treatment" approach to the teaching of science. Creationists argued that the theory of evolution was just that, a "theory" and not a proven scientific fact. While conceding that this alone did not disqualify it from being taught in schools, they asserted that simple fairness demanded that other theories of life (such as creationism) that also had not been proven should be given equal time in the classroom. Students would then be able to evaluate for themselves which theory made the most sense. Creationists argued that, in addition to meeting the fairness criterion, such a balanced treatment would enhance critical thinking skills in students by encouraging them to think for themselves and make choices, rather than being told what to believe.

An early attempt to adopt this strategy occurred in 1974 in the never-say-die state of Tennessee, which passed yet another law requiring that states give an equal amount of emphasis in their biology textbooks for alternative theories of origins, including the Genesis account.

The law passed by the state said (Section 1) that:

Any biology textbook used for teaching in the public schools, which expresses an opinion of, or relates a theory about origins or creation of man and his world shall be prohibited from being used as a textbook in such system unless it specifically states that it is a theory as to the origin and creation of man and his world and is not represented to be scientific fact. Any textbook so used in the public education system which expresses an opinion or relates to a theory or theories shall give in the same text-book and under the same subject commensurate attention to, and an equal amount of emphasis on, the origins and creation of man and his world as the same is recorded in other theories, including, but not limited to, the Genesis account in the Bible.

Of course requiring the teaching of "other theories" of origins might open the door to all manner of ideas that were undesirable so the legislators added a sentence that said "The teaching of all occult or satanical beliefs of human origin is expressly excluded from this Act."

The religious writers of this legislation also tried to address another problem in that the use of the Bible in schools might also be excluded under this law since that book obviously contained a 'theory about origins or creation of man and his world' and yet did not include other theories. But they thought they had a way out. Since the above restrictions applied only to textbooks, they added another section to the law (Section 2) that said:

[T]he Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work and shall not be required to carry the disclaimer above provided for textbooks.

The law was, of course, promptly challenged and the case Daniel v. Waters went to trial. The problem was that by asking for the specific inclusion of an explicitly religious belief based on the Genesis account of the Bible, they had stepped over the constitutional line. By that time, the Supreme Court had laid down so many fairly clear guidelines for adjudicating such cases that lower courts had little trouble determining that such an explicit appeal to include religious ideas in the public school curriculum violated the establishment clause of the First Amendment

In a 2-1 majority ruling in 1975 striking down the law, the US Sixth Court of Appeals said:

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. For a state to seek to enforce such a preference by law is to seek to accomplish the very establishment of religion which the First Amendment to the Constitution of the United States squarely forbids.

The court also argued that the law ruling out the teaching of all "occult or satanical beliefs" would violate the entanglement prong of the Lemon test because it would get the state involved in all kinds of messy theological disputes.

Throughout human history the God of some men has frequently been regarded as the Devil incarnate by men of other religious persuasions. It would be utterly impossible for the Tennessee Textbook Commission to determine which religious theories were "occult" or "satanical" without seeking to resolve the theological arguments which have embroiled and frustrated theologians through the ages.

But the advocates of religion were undeterred by this setback in Tennessee and tried to craft legislation in even more religiously neutral terms, while still seeking to undermine the theory of evolution and advance creationist alternatives. They realized that they had to avoid explicitly religious language or references to the Bible.

Thus was born what became known as 'creation science', which consisted of Biblical creationist ideas carefully wrapped in the language of science. That development will be described in the next posting.

POST SCRIPT: Redacted

Brian De Palma's much praised and anticipated and controversial film Redacted dealing with the Iraq war opens in some cities today and later in others. (Cleveland release date is November 30th at the Cedar Lee)

The film is a fictionalized account of a real incident in which US soldiers in Iraq raped and murdered a 14-year old girl. De Palma takes "a raw, cinema-verite approach what's essentially a faux documentary, telling the story with the aid of soldiers' blogs, video diaries and online testimonials — all invented for the film, but based on materials De Palma found online."

You can listen to a Fresh Air interview with De Palma about the film.

November 15, 2007

From Scopes to Dover-18: The Epperson opinions

(For previous posts in this series, see here.)

The landmark 1968 Epperson case is interesting for a couple of reasons. The shadow of Scopes influenced the ruling and, although the verdict was unanimous, the differences in reasoning by the various justices influenced the strategies adopted in later attempts to combat the teaching of evolution.

In their opinions giving their different reasons for overturning the statute, Justices Abe Fortas and Hugo Black essentially repeat the debate that had occurred nearly a half-century earlier between Darrow and Bryan. In fact, Fortas resurrected the ghost of the Scopes trial in his opinion, referring to the "sensational publicity" surrounding that trial.

In Fortas's majority opinion, he took roughly the Darrow position and said:

While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment's prohibition, the State may not adopt programs or practices in its public schools or colleges which "aid or oppose" any religion. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma. (my italics)
. . .
Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read.

Black, however, was uneasy about the reach of the ruling on establishment grounds, preferring to rule it unconstitutional on the grounds of its vagueness, saying: "Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin's theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process."

Black seemed sympathetic to Bryan's point that the people's right (expressed through the agencies of government) to determine what should be taught in schools should not be dismissed too easily.

It may be, instead, that the people's motive was merely that it would be best to remove this controversial subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the "motives" behind its passage were improper; it is simply too difficult to determine what those motives were.
. . .
I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, political, or religious subjects that the school's managers do not want discussed. This Court has said that the rights of free speech, "while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." . . . I question whether it is absolutely certain, as the Court's opinion indicates, that "academic freedom" permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him."

Justice Potter Stewart concurred with Black in agreeing that the statute was unconstitutional on the grounds of vagueness, not because it violated the establishment clause. He also pointed that the rights of states to choose their curricula should not be infringed upon too readily. He also tried to draw a line between the kinds of teaching a state was entitled to determine and what it wasn't.

The States are most assuredly free "to choose their own curriculums for their own schools." A State is entirely free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know that other languages are also spoken in the world? I think not.

It is one thing for a State to determine that "the subject of higher mathematics, or astronomy, or biology" shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment and made applicable to the States by the Fourteenth.

The Arkansas Supreme Court has said that the statute before us may or may not be just such a law. The result, as MR. JUSTICE BLACK points out, is that "a teacher cannot know whether he is forbidden to mention Darwin's theory at all." Since I believe that no State could constitutionally forbid a teacher "to mention Darwin's theory at all," and since Arkansas may, or may not, have done just that, I conclude that the statute before us is so vague as to be invalid under the Fourteenth Amendment.

Hugo Black made some other interesting points about the idea that the theory of evolution was anti-religious. If it were so, then wouldn't teaching it violate the idea that the state should be neutral in matters of religion?

A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion. (my italics)

Black is making an interesting point here. There is no question that the theory of evolution has serious negative consequences for religious beliefs. In that sense, it is 'anti-religion'. More generally, suppose a scientific theory contradicts some religious belief. Doesn't teaching just that theory and not the opposing religious belief contradict the neutrality requirement of the establishment clause? Wouldn't neutrality require teaching both or omitting both?

Religious apologists who support science try to avoid this dilemma by arguing that scientific truths cannot, almost by definition, be anti-religious. There is only one truth, they argue, and any seeming contradiction between an established scientific theory and religious beliefs must be due to an erroneous interpretation of religion. This is what those who argue that science and religion are compatible say, dismissing as 'pure nonsense', in Black's words, 'the views of those who consider evolution an anti-religious doctrine.'

But is it that straightforward? For example, I am convinced that science and religion are incompatible belief systems, and that the more one appreciates the wonder of the scientific viewpoint and the power of methodological naturalism to uncover the truths of the world, the less appeal the supernatural elements of religion have. So is support for the teaching of more and better science necessarily also advocating an anti-religious view and thus violating the neutrality requirement of the establishment clause?

The Epperson case did not need to resolve this particular question and Supreme Court was able to reach a unanimous verdict that the Arkansas law banning the teaching of evolution was unconstitutional while avoiding having to take a position on it. The problem raised by Black was resolved three years later in 1971 in the case of Lemon v. Kutzman that set down the rules by which to judge whether any law violated the establishment clause. That case will be reviewed in the next posting in this series.

POST SCRIPT: Chessboxing?

Is this really a sport?.

Do you ever get the impression that real life is imitating a Monty Python sketch?

November 14, 2007

From Scopes to Dover-17: Teaching of evolution is back in court

(Note this has been updated)

(For previous posts in this series, see here.)

1968 was a watershed year for attempts to ban the teaching of evolution in schools. The events of that year arose because of the rise of creationist thinking in the 1960s. Influential in the rise of the creationist movement was the publication in 1961 of the book The Genesis Flood by John Whitcomb and Henry M. Morris. This was a 500-page book that tried to make the case that scientific evidence supported a literal interpretation of the Bible, down to a 6,000 year old Earth and Noah's flood. While Whitcomb was a theologian, Morris had a doctoral degree in hydraulic engineering with minors in geology and mathematics. He later founded in 1970 the Institute for Creation Research to advance these ideas.

These new creationist groups took the Bible very literally, more so than William Jennings Bryan, and in fact they thought that during the Scopes trial Bryan had betrayed Christianity by allowing that the creation days of Genesis may have lasted longer than 24 hours, thus allowing the possibility that universe may have been around for more than 6,000 years. The new creationists were having none of that wishy-washiness. Coupled with their strict literal interpretation of the Bible was the powerful feeling that the teaching of evolution had to be countered.

As I wrote in Quest for Truth: Scientific Progress and Religious Beliefs (2000, p. 4):

Initial challenges to the theory of evolution took the form of demands that schools and textbook publishers acknowledge that Darwinian evolution was "only a theory" and not a scientific "fact," and hence it should be eliminated from the science curriculum since science was supposed to be only concerned with facts. . . But these initial challenges had only minor success. Schools and teachers could hardly be expected not to say anything at all to students about how life and the universe came to be. Since Darwinian evolution had become accepted by professional scientists as the main organizing principle in understanding the appearance of different life forms, it was inevitable that science textbooks and the training of science teachers would reflect that thinking, albeit in a fairly ad-hoc manner.

The paradox was that despite the near universal teaching (in one form or another) of Darwinian evolution in schools, surveys showed a surprising resistance among the general public to key tenets of the theory, especially the one that said that humans and apes had common ancestors. As recently as 1988, 38% of college students believed that human life originated in the Garden of Eden. Feeling that perhaps the reason for this state of affairs was that evolution was not being taught properly, the scientific community planned and implemented a thoroughgoing reform of biology science texts, culminating in the 1960s with the BSCS (Biological Sciences Curriculum Study) textbook series that had evolutionary ideas as a major theme permeating the texts. In these books, there was no escaping the fact that evolution was seen as the organizing principle in biology with no viable alternative.

The BSCS series was widely adopted by schools; but was perceived by creationists as a direct assault by the scientific community on their religious beliefs and galvanized them into responding.

Part of the thrust towards better science education was due to the shock that the launch of the Sputnik satellite in 1957 created. The sense of panic that accompanied the idea that the US was falling behind the Soviet Union in science and technology no doubt helped policymakers override religious believers. These developments led to the next round of court cases.

Recall that even as late as the 1960s, the 1925 Butler Act prohibiting the teaching of evolution was still technically on the books in Tennessee as being constitutional although in the wake of the Scopes trial nobody had enforced it. Texas and Louisiana had also passed laws prohibiting any mention of evolution in textbooks that were approved by the state. ((Summer for the Gods, Edward J. Larson, 1997, p. 221)

In 1928, Arkansas (like Tennessee in 1925) had passed a law by popular referendum that made it unlawful for a teacher in any state supported school or university to teach or to use a textbook that teaches "that mankind ascended or descended from a lower order of animals." This law, like the Butler Act after Scopes, was also never enforced until 1965 when the state adopted the BSCS textbooks that emphasized evolution. But since the law banning the teaching of evolution was still on the books and since the new textbooks explicitly required the teaching of evolution, the state teacher's organization saw the opportunity to put the law to the test and challenged it using, as in Scopes, another young biology teacher (Susan Epperson) as the key player, this time as the lead plaintiff challenging the validity of the law, rather than as someone accused of breaking the law.

The trial judge ruled in favor of Epperson and overturned the law on the grounds that it unconstitutionally limited the teacher's freedom to teach about theories of origins. The state appealed and the Arkansas Supreme Court overruled the trial judge saying that the Arkansas law was a valid exercise of the State's power to specify the curriculum in public schools.

(As a footnote, as the Arkansas case worked its way up to the Supreme Court, in Tennessee another teacher Gary Scott was threatening to take similar legal action against the Butler Act. This case was initiated in 1967 and coming along at the same time as the release of the memoirs of Scopes, had the potential to make Tennessee the laughing stock of the nation again. This put pressure on the state legislature and in 1967 they finally decided to repeal the Butler Act, bringing that particular chapter of the religion-evolution wars to a close, although other battles would continue.)

So after the passage of more than four decades, the Epperson case achieved what the Scopes case had aspired to do but had failed: be a test case on basic First Amendment issues to be adjudicated by the US Supreme Court. When the Epperson v. Arkansas case finally reached the US Supreme Court in 1968, the court unanimously ruled that the statute effectively banning the teaching of evolution was unconstitutional. But the court but did not agree on the reasons for doing so. Most initially wanted to overturn it on the grounds that the statute was too vague rather than that it violated the establishment clause, but in the end Justice Abe Fortas wrote the majority opinion saying that it was indeed a First Amendment establishment clause violation.

In the summary of the ruling on Epperson v. Arkansas 393 US 97, it states among other things:

"(b) The sole reason for the Arkansas law is that a particular religious group considers the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis. . .

(c) The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. . .

(d) A State's right to prescribe the public school curriculum does not include the right to prohibit teaching a scientific theory or doctrine for reasons that run counter to the principles of the First Amendment.. . .(my italics)

(e) The Arkansas law is not a manifestation of religious neutrality."

Note that in the italicized section, the court rejects simple majoritarian thinking, saying that constitutional restrictions limit the power of school boards to completely prescribe the curriculum.

But while the 1968 Epperson ruling was a clear victory for the teaching of evolution and provided the definitive answer that the 1925 Scopes case had sought and failed to deliver, the opinions of the various judges provides some interesting perspectives and arguments that are worth reviewing, and will be the subject of the next post.

POST SCRIPT: Teasing telemarketers

Telemarketers are annoying but I also feel sorry for them because it must be a really awful job. I do not give them a hard time, instead politely terminating the conversation quickly. But someone named Tom Mabe decided to have some fun at the expense of a telemarketer.

November 13, 2007

From Scopes to Dover-16: The rise of creationist thinking

(For previous posts in this series, see here.)

In the 1962 Engel case, the Supreme Court had ruled that having students say a state-drafted 'official' prayer, however generic, was an unconstitutional violation of the establishment clause. But this left open the constitutionality of 'spontaneous' prayers not written by the state. Soon after in 1963, a new case addressed this very issue in School District of Abington Township, Pennsylvania v. Schempp 374 U.S. 203.

These were really two cases taken together. In one (Abington v. Schempp), the state of Pennsylvania had passed a law that "At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian."

It was the other companion case (Murray v. Curlett) that received the greatest amount of publicity because it was brought by the prominent atheist Madalyn Murray (later Madalyn Murray O'Hair). This involved a challenge to a 1905 Maryland law that required starting the school day with a reading, without comment, of a passage from the Bible and/or saying the Lord's Prayer. Parents who objected to the practice could, however, request that their children be excused from this exercise.

The US Supreme Court overturned both policies, ruling that "no state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the beginning of each school day."

In its majority opinion (which included Justice Black), Justice Clark disputed the claim that keeping religion out of schools was equivalent to fostering another religion, that of "secularism". This was something that William Jennings Bryan had argued at the time of the Scopes trial and which one still hears today.

It is insisted that, unless these religious exercises are permitted, a "religion of secularism" is established in the schools. We agree, of course, that the State may not establish a "religion of secularism" in the sense of affirmatively opposing or showing hostility to religion, thus "preferring those who believe in no religion over those who do believe." We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion. (my italics)

None of the Supreme Court decisions discussed so far in this series of posts dealt directly with the teaching of evolution as such, and there still was no precedent dealing specifically with that particular topic. But all these cases set the stage on which the re-emergence of controversies over the teaching of evolution would be adjudicated, starting in the mid-1960s.

In the forty years that had passed since the Scopes trial, opposition to the teaching of evolution had remained strong and anti-evolution laws such as Tennessee's Butler Act still remained on the books, as was a similar law passed in 1928 in neighboring Arkansas. Neither law had been enforced, presumably because of the negative publicity generated by the Scopes trial. But that period of dormancy was soon to end. As we will see, three states Tennessee, Arkansas, and Louisiana (the 'Axis of Weevils'?) played central roles in the renewed legislative efforts to combat the teaching of evolution in public schools.

As I wrote in Quest for Truth: Scientific Progress and Religion Beliefs (Chapter 1, 2000), popular support for teaching a Bible-based creation model was by no means eliminated by the adverse publicity generated by the Scopes case, and the 1960s saw a dramatic resurgence in creationist views, as well as a shift in their emphasis. Ironically, . . .the newer version, now bearing the name of 'creation science', was even less accommodating of mainstream scientific views than the creationist views advocated by William Jennings Bryan during the Scopes trial. As creation science gained popularity, it was accompanied by attempts to displace evolutionary theory from its dominant position within the educational system as the explanation for the origin of life. The main arenas for these battles were local school districts, and primarily involved the selection of textbooks. Textbook publishers, wary of losing lucrative markets, were under increasing pressure to either eliminate Darwinian evolution theory entirely from textbooks or to tone down its claims to success and offer alternative, implicitly creationist, versions as well. It was inevitable that the conflict would sooner or later spill over in the legal arena again.

In 1968, the issue of whether schools could ban the teaching of evolution, the issue that had riveted the nation when Darrow and Bryan argued it in Dayton Tennessee in 1925, finally reached the US Supreme Court. It arose out of a law similar to the Butler Act, but passed in neighboring Arkansas in 1928. This time, the case involved the use of textbooks that included the theory of evolution.

POST SCRIPT: It's Magic Man!

In order to get ready for the two-hour special documentary on the Dover trial called Judgment Day: Intelligent Design on trial scheduled for tonight (Tuesday, November 13, 2007) at 8:00pm EST (check your local PBS station for exact dates and times), watch comedian Robin Ince perfectly summarize the difference between intelligent design creationism and science.

November 12, 2007

From Scopes to Dover-15: Religion gets edged out of schools even more

(For previous posts in this series, see here.)

In the previous posts, we saw that by the first half of the twentieth century, the idea of the separation of church and state had taken such hold in the country that most religion-based practices had been taken out of the schools, although a few practices still remained. As religious groups tried to get more religion back into the schools, these various efforts led to more court cases.

The next major religion in schools case came in 1948, the year following the landmark Everson ruling, as a result of the growing practice of public schools granting 'release time' for the teaching of religion. This practice arose because some parents felt that relegating religious instruction to just the weekends to be done by private individuals or priests diminished the importance of religion in the eyes of children when compared to the secular curriculum taught as part of the regular school day. So they requested and received permission from schools to use part of the school day to teach religion, although the details of implementation varied from place to place.

In the case McCollum v. Board of Education (333 U.S. 203), a parent challenged the release time policy of the local public schools, whereby thirty to forty five minutes were set aside each week for teachers of religion, paid by a private consortium of religious organizations, to come to the schools to provide religious instruction to students whose parents had consented to have them attend. Children whose parents did not want such instruction for their children had to leave their classrooms and go to other parts of the building for secular studies. One such parent challenged the practice and the case went all the way to the US Supreme Court.

The Supreme Court in an 8-1 decision ruled that this practice was unconstitutional and effectively barred all religious instruction within public schools. Citing the Everson guidelines, Justice Black in his majority ruling struck down this policy saying that this use of the public school building and time to further religious education:

is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.
. . .
For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.

Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State.

1952 saw a variant of the McCollum case Zorach v. Clauson, 343 U.S. 306, in which schools would authorize students during school hours, on written requests of their parents, to leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises. In this case, the US Supreme Court ruled in a split decision that this practice did not violate the establishment clause.

The next major case that resulted in further separation of religion and schools was in 1962 in Engel v. Vitale 370 U.S. 421. The New York state Board of Regents had adopted a policy whereby each class had to begin each day by saying aloud in the presence of the teacher the following prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

Ten parents filed an objection to this so-called Regent's Prayer. The US Supreme Court struck down the policy saying that having such governmental composed prayers, even if every student were not compelled to say it aloud, was unconstitutional. The ruling said that "state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day -- even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited."

Justice Hugo Black was again the author of this majority 6-1 opinion, and in it he said that: "The respondents' argument to the contrary, which is largely based upon the contention that the Regents' prayer is "nondenominational" and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer, but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. . . When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."

He drew upon history arguing that this kind of state-sponsored religion was precisely what the early colonialists had tried to escape in Europe and he deplored the tendency of people who oppose acts when they are in the minority singing a different tune when they become the majority. "It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.. . .It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies."

Black rejected the argument that prohibiting practices such as this was demonstrating hostility to religion. He said that the founding fathers were instead trying to avoid the pitfalls that inevitably ensue when religion and the state get entangled, saying that they had "well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to."

Next: All prayer and Bible reading in schools is ruled unconstitutional

POST SCRIPT: Dover trial on Nova

The PBS show Nova is having a two-hour special documentary on the Dover trial called Judgment Day: Intelligent Design on trial, which is what my current series of posts is leading up to. If I was better organized, or not as long-winded, my series would have started earlier and my final posts, which deal with this trial would have coincided with the broadcast. Oh, well,…

The show is scheduled to be broadcast tomorrow (Tuesday, November 13, 2007) at 8:00pm EST but check your local PBS station for exact dates and times.

Here is a preview of the program

There is also a companion website.

November 09, 2007

From Scopes to Dover-14: Religion gets edged out of the schools

(For previous posts in this series, see here.)

Following their failure to have the separation of church and state incorporated as an amendment into the US constitution, proponents of separation in the late 19th century then shifted strategy, urging changes in state constitutions and arguing that the federal constitution had implicitly advocated separation all along and that what was necessary was a reinterpretation of its key clauses. A broad coalition of forces – including Baptists, Jews, atheists, Masons, the Ku Klux Klan - supported this idea, some to prevent the encroachment into government by particular religious sects (especially Catholics), others because they really did want all religion out of government institutions. (Separation of Church and State (2002), Philip Hamburger, p. 481) Thus the idea of the separation of church and state, although not explicitly stated in the federal constitution, became widely accepted as a basic underlying principle of the country.

Because the idea of separation had gained considerable popularity by the time of World War I, state supreme courts in several states had started questioning the practice of Bible reading in public schools (Hamburger, p. 369). Use of the Bible in public schools started decreasing to such an extent that parents started becoming concerned that the public schools were providing too little or no religious instruction at all. A Baptist minister in 1919 put it this way, that the tendency "toward the complete secularization of education . . .had grown out of an overemphasis of our doctrine of separation of religious freedom." He felt that Baptists "have been so insistent on the separation of church and state that we have almost completely separated education and religion to the serious detriment of both." (Hamburger, p. 383)

Another Baptist summarized how this situation had come to pass:

Two forces, from opposite sides, have cooperated towards this general secularizing of our education. . .First, the Christian forces insisted on the absolute separation of Church and State, and thought of all religion in terms of church creeds and forms. Hence they set themselves against the teaching of Christianity in schools supported by public funds and controlled by boards of education. At the same time non-Christian influences were exerted by men who, like the churchmen, identified religion with the creeds of organized churches and felt that the churches would produce friction and confusion in the schools, would lay a hindering hand on freedom of thought and investigation. Thus the two operated together to eliminate religion from our education." (Hamburger, p. 383)

This was the climate in which the Scopes trial took place in 1925 and explains the line of argument pursued by William Jennings Bryan. It was a time when teaching of the Bible had largely disappeared from schools. Rather that trying to directly challenge the by-then accepted idea of separation of church and state and reverse the secularization of education that had led to the Bible not being used in public schools, Bryan tried to use the separation idea to his advantage, arguing that evolution was not a scientific fact but an idea based on an atheist doctrine, and thus violated the idea of separation. This line of argument, that the theory of evolution is less a scientific theory than an atheist inspired belief structure akin to a religion, is still widely heard today.

To understand the legal developments after Scopes, recall that prior to 1925, the First Amendment was seen to apply restrictions only on the powers of the federal government. It was the 1925 Gitlow case that expanded the 'free speech' and 'free press' clauses to state and local governments by incorporating them under the Fourteenth Amendment.

Then in 1940, in the case Cantwell v. Connecticut, 310 U.S. 296, the right of Jehovah's Witnesses to spread their message on a public street without seeking prior government approval was upheld unanimously by the US Supreme Court with the court agreeing with the Jehovah's Witnesses that such restrictions violated the 'free exercise' of religion clause in the First Amendment, and that this clause was also explicitly applicable to the states under the Fourteenth Amendment. In Cantwell, the court even stated more expansively that "The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.. . .The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."

As the debate over evolution and religion continued after the Scopes trial ended, subsequent court cases can best be understood as being caused by attempts to put at least some religion back into schools by those who felt that separation of church and state had been interpreted too broadly to mean the separation of religion and state.

One key development centered on whether the 'establishment clause' was also binding on the states. Although the Supreme Court had stated that it was in the 1940 Cantwell case, only the 'free exercise clause' that had really been at issue in that case. The case that definitively settled the 'establishment clause' issue was in 1947 in Everson v. Board Of Education (330 U.S. 1).

Everson involved a challenge to the policy of a local school district in New Jersey to reimburse parents for the cost of bus transportation for their children to attend parochial schools. In a close 5-4 decision, the court ruled that doing this did not violate the idea of separation of church and state. The majority ruled that such actions fell into the category of maintaining the general welfare of its citizens and that carrying the idea of separation to such extremes so that no interaction at all could exist between the state and parochial schools might prevent the state from providing even police or fire or other minimal protections and services to those schools.

Writing for the majority, Justice Hugo Black said:

Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. . . Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children's welfare. . . Of course, cutting off church schools from these services so separate and so indisputably marked off from the religious function would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.

At first, this ruling was seen as a major constitutional defeat for the principle of separation of church and state and Black, the author of the majority verdict, came in for severe criticism. Black has played an important role in the development of judicial doctrine on church-state relations and his history is interesting.

Black had been a member of the Ku Klux Klan in his native Alabama and had strongly supported its church-state separation policy. Before his elevation to the Supreme Court by Franklin Delano Roosevelt in 1937, Black had been elected to the US Senate from Alabama in 1926 with strong support from the KKK and other groups that saw him as someone who would strengthen that separation. Conversely, his nomination to the Supreme Court had been especially criticized by Catholics who saw him as someone opposed to them. His ruling was thus seen as a let down by those supporters who had rallied to his defense against the Catholics. They viewed his decision as a sop to Catholics, an attempt to deflect charges of being anti-Catholic.

But although his Everson ruling was criticized by advocates of church-state separatism, his ruling actually laid the foundations for subsequent rulings that ever more firmly established the idea that religion and the state should stay separate because it was in the Everson case that the court explicitly ruled that the 'establishment clause' protections of the First Amendment were also binding on state and local governments by virtue of the Fourteenth Amendment. (Today virtually every protection in the entire Bill of Rights is assumed to apply also to state and local governments by virtue of the Fourteenth Amendment.)

Even more importantly, Everson case also set general guidelines on what the establishment clause should be taken to mean, and explicitly inserted Jefferson's 'wall of separation between church and state' into its ruling, thus making that famous phrase part of constitutional law for the first time. Writing for the court, Justice Hugo Black wrote what has since become a major part of the framework for interpreting the establishment clause:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause ... was intended to erect "a wall of separation between church and State."

As Larson points out (Summer for the Gods, Edward J. Larson, 1997, p. 249), after Everson, "the Court quickly began purging well-entrenched religious practices and influences from state-supported schools." The precedent set in this case rapidly led to a whole series of Supreme Court decisions, several of them authored by Black, creating greater distance between religion and state, and especially removing religion from schools.

Hamburger suggests (p. 462) that Black was well aware that this would happen and that his Everson ruling that seemingly favored the interests of parochial Catholic schools was a shrewd move on his part, giving a small victory to parochial schools and thus mollifying those critics who had suspected that he was anti-Catholic because of his Ku Klux Klan past, while at the same time laying the foundation for advancing the idea of separation of church and state which he strongly supported but which Catholics felt was aimed at restricting them.

Next: Religious dominos fall in rapid succession

POST SCRIPT: V for Vendetta

One of my favorite films is V for Vendetta, in which the key character is based on Guy Fawkes, whose plot to blow up the British parliament is remembered in England every November 5th. Of course, as usual I forgot the anniversary but Norm Nason of Machines Like Us kindly reminded me of the day and sent me a link to a clip from the film where V gives a talk to the British public warning them of how they have been lulled into accepting an authoritarian system. Replace the British Chancellor with George Bush and you will see an almost exact parallel with what is happening in the US now, where a deliberately frightened public trades away its freedoms for a fraudulent sense of safety.

As the film says: People should not be afraid of their governments. Governments should be afraid of their people.

November 08, 2007

From Scopes to Dover-13: Rising calls for the separation of church and state

(For previous posts in this series, see here.)

At the dawn of the 19th century, while explicit support for specific religious instruction to advance a particular sectarian view was frowned upon, the fact that almost all the colonialists were Protestants meant that much of what we would now view as religious education was seen by them as simply ordinary education. Their view of the purpose of schooling was closely tied with teaching morals and values and these were believed to be religion-based. So while people were cool to the idea of the state supporting specific churches, they did not view a generic Protestant Christian ideology as representing a 'church'. It was seen as merely the personal beliefs of individuals which just happened to be shared by most people, and thus were 'natural'.

Since the schools were under local control and thus represented relatively homogeneous groups of Protestants, no challenges emerged to such tacit support for religion in those communities. As Philip Hamburger writes in Separation of Church and State (2002, p. 220), even in New York City, which was more diverse than the rest of the nation, the idea of a generic Protestantism as not being explicitly religious but merely neutral held sway.

Since the early 1820s, when it first acquired authority to distribute public school funds, New York's City Council had denied such funds to all sectarian institutions, including Baptist, Methodist, and Catholic schools. Instead, it gave most of its funds to the schools run by the Public School Society – a privately operated nondenominational organization. Yet the ostensibly nonsectarian schools of the Public School Society had some broadly Protestant, if not narrowly sectarian, characteristics. One goal of the society was "to inculcate the sublime truths of religion and morality contained in the Holy Scriptures," and its schools required children to read the King James Bible and to use textbooks in which Catholics were condemned as deceitful, bigoted, and intolerant.

Needless to say, Catholics did not share the view that this was a religiously neutral education, and as the number of Catholics in the city rose due to immigration from Ireland, they started pressing for public funds to create their own schools free of anti-Catholic bias and to teach their own brand of Christianity. But Catholics were widely seen at that time as being too much of a monolithic body, too subservient in their thinking to their priests and the Pope, and thus their allegiance to the new republic was seen as suspect. Some non-Catholics even went to the extent of suggesting that since the Catholic Church seemed to demand great obedience from its parishioners, such people had ceased to be independent thinkers and were thus not even worthy of being allowed to vote in a democracy. (Hamburger, p. 234-246)

Of course, when it was pointed out that the Public School Society still required students to read the Bible and other religious materials and thus could hardly claim to be religiously neutral, it "defended its position that its publicly supported schools were nonsectarian by offering to black out the most bigoted anti-Catholic references in the textbooks. It refused, however, to withdraw the King James Bible, which, although Protestant, no longer seemed to belong to any church." (Hamburger, p. 223)

The request by Catholics for funding of their own schools was opposed as leading to an alliance of church and state. In fact it was to deny the demands by Catholics for the funding of their own schools that led to the idea of separation of church and state gaining popularity. Up to that point, people had largely viewed the founding principle of the country, as enshrined in its constitution and associated documents, as prohibiting a union of the state with an organized church. The idea of the separation of church and state was an idea contained in a letter that Thomas Jefferson wrote in 1802 to a committee of the Danbury Baptist Association in which he said: "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State." (Hamburger, p. 1)

The latter view (creating a separation of church and state) was a much stronger statement than the former (preventing a union of church and state) and it started gaining ground in the mid-19th century onwards mainly as an argument to prevent Catholics from gaining funding for their own denominational schools.

This idea of separation (as opposed to preventing union) gained further ground when Pope Gregory XVI, in an encyclical published in 1832, condemned the doctrine of separation of church and state. This move backfired because it increased the fears of Protestants in America that the Catholics were seeking to eventually dominate the US, and thus increased support for the doctrine of separation of church and state as a way of limiting the ambition of Catholics. As I said before, the various Protestant sects could embrace this separation doctrine because they did not see themselves as acting as a single "church" but as individuals who happened to share a broad Protestant ethic. They thus excluded themselves from the 'sectarian' label and saw the separation of church and state as a way of maintaining the status quo.

Like so many other Protestants, Baptists desired to exclude any particular church from public institutions but welcomed Bible reading and other elements of Protestant religion, which seemed to be the faith of free individuals. In the 1870s, for example, although some Baptists protested the introduction of the Bible into public schools and argued that "the state had no right to teach religion," most Baptists saw no reason to go so far. As one Baptist, George C. Lorimer, explained in 1877: "The position of the Bible in the schools is not the result of any union between Protestants and the State; nor was it secured by the political action of one denomination, or of all combined. The Church, as such, did not put it there, and the Church, as such, cannot take it away. Instead, the "people" put the Bible in the schools." (Hamburger, p. 283-284)

So even as the idea of the separation of church and state was gaining popularity, it was not initially seen as a call for the separation of Christianity and the state. As is usually the case when a belief structure is ubiquitous, its adherents tend to see it as 'normal' and 'natural' and 'obviously' true, and not merely one of a spectrum of possible views.

But as the idea of separation of church and state became more widely accepted, it was inevitable that people, especially those who did not share these common beliefs, would see the benefits of extending that concept to mean that there should be a complete separation of religion (including Protestant Christianity) and the state. As Hamburger points out, initial calls for this stronger separation took the form of arguing that this was what the Founding Fathers had desired but not explicitly provided for in the constitution, and thus there were calls for a constitutional amendment to firmly entrench this principle into law.

These calls for a constitutional amendment mandating the separation of church and state gained ground. As part of this drive, there were calls for the abolition of chaplains in publicly supported institutions, prohibiting the use of the Bible (either as a textbook or as a source of religious worship) in public schools, replacing religious judicial oaths with secular affirmations, abolishing tax exemptions for religious institutions, and so on. (Hamburger, p. 302-304) Even President Ulysses S. Grant urged stronger separation when he ran for reelection in 1875, advocating an amendment that would "[d]eclare Church and State forever separate and distinct, but each within its proper sphere."

In a speech made in 1875 to the Convention of the Army of the Tennessee, Grant said that the country should "Encourage free schools and resolve that not one dollar appropriated for their support shall be appropriated for the support of any sectarian schools. Resolve that neither the state nor the nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the church and state forever separated."

The separation movement gained ground as members of the various Christian denominations saw it as a means of preventing any particular denomination, particularly Catholics, from gaining supremacy in teaching their particular doctrine to the exclusion of the others. The idea of an amendment to the US constitution implementing stronger separation reached its peak around 1875 but failed to come to fruition, and that plan was eventually abandoned. But it did achieve some results, with Congress passing laws requiring any new state seeking admittance to the union to have clauses in their state constitution mandating the separation of church and state.

Next: A shift in strategy.

POST SCRIPT: Levitation

I sometimes hear from people who have witnessed seemingly paranormal phenomena (such as 'mind reading') with their own eyes and are convinced that people with such powers exist. They assert that they would have detected any trickery. I am reminded of what magician James Randi said, that it is really easy to fool people, and the more well educated they are and the more confident such people are of their own smartness, the easier it becomes.

I like magicians. Apart from the fun of watching them do their tricks, such people are a useful reminder of how we must be cautious of taking at face value even the things we "see" with our own eyes unless it is under tightly controlled conditions supervised by people who know the world of trickery and illusions.

Here is Dutch magician Ramana doing a levitation trick.

You can read and see more about Ramana here and here.

Apparently Ramana also does 'mind reading'.

November 07, 2007

From Scopes to Dover-12: The history of religion in US public schools

(For previous posts in this series, see here.)

It is interesting to note that in 1925, the attempt that was being made by religious believers was to keep evolution from being taught in the schools because Biblical creation theories had already been eliminated. William Jennings Bryan was essentially arguing for two things: (1) If religion was not to be taught in schools, then neither should evolution; and (2) the community of taxpayers had the right to decide what children should be taught in schools. Bryan was arguing for the state to be allowed to ban the teaching of evolution since public school teachers were already prohibited from presenting the biblical view.

Readers might be puzzled by Bryan's line of argument since the popular view now is that the banning of the teaching of religion from public schools is a late 20th century phenomenon coinciding with the rise of secularism, and that in earlier times public education was riddled with religious teaching, which was why the teaching of evolution was opposed. But the history of religious instruction in US public schools is more complicated.

In order to understand the real status of religious education in schools that led up to the Scopes trial, we need to go back to the early days of the founding of the republic. US Supreme Court Justice Felix Frankfurter in his concurring opinion in the 1948 case McCollum v. Board of Education, 333 U.S. 203 gives a nice history of the role of religion in schools. (By a curious coincidence, Frankfurter, then at Harvard Law School, was one of the people who worked with the ACLU on strategy for the Scopes case.) It was in the McCollum case that religious instruction in public schools was first explicitly ruled to be unconstitutional under the US constitution.

As Frankfurter pointed out, the original purpose of education was religious education.

Traditionally, organized education in the Western world was Church education. It could hardly be otherwise when the education of children was primarily study of the Word and the ways of God. Even in the Protestant countries, where there was a less close identification of Church and State, the basis of education was largely the Bible, and its chief purpose inculcation of piety. To the extent that the State intervened, it used its authority to further aims of the Church.

The emigrants who came to these shores brought this view of education with them. Colonial schools certainly. . .started with a religious orientation. When the common problems of the early settlers of the Massachusetts Bay Colony revealed the need for common schools, the object was the defeat of "one chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures."

But while this broadly religious sentiment was commonly accepted, the early colonialists and drafters of the constitution were also aware, from the history of the countries that they had left behind in Europe, that the close identification of government with any particular religious sect could drive huge wedges between people, and they were uneasy about repeating that history in the US.

In his opinion in the 1947 landmark case Everson v. Board of Education, Justice Hugo Black summarized the abuses that occurred in the early days of the American settlers and which led to the inclusion of the establishment and free exercise clauses in the First Amendment.

These practices of the old world were transplanted to, and began to thrive in, the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old-world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters.

These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.

What people were concerned about was not the teaching of religious ideas per se or even teaching the Bible, but the influence of any specific religious institution (a 'church') in schools. So they tended to oppose any formal links of government with religion.

To give a flavor for the kinds of debate going on at the time, consider James Madison's famous 1785 document called the Memorial and Remonstrance Against Religious Assessments which he wrote in opposition to a bill, introduced into the General Assembly of Virginia, that was designed to levy a tax to support the hiring of teachers of religion in the schools.

In his remonstrance, Madison presciently pointed out that although at any time all the people might believe in the same religion and thus feel that there is no problem with the state supporting it, once state support of religion was allowed it would not take much for narrower and narrower sectarian interests to jockey for control to give their particular beliefs pride of place at the expense of others. He said:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?. . . Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.. . . [E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.

Partly because of the powerful arguments made by Madison against state support of religion, the bill did not pass and instead the Virginia legislature in 1786 enacted Thomas Jefferson's Bill for Religious Freedom.

So we see that at the close of the 18th century, Americans, even though they were broadly religious, saw the dangers that a close identification of religion with the state could produce and were thus wary of any formal entanglement of the government with any specific sect or church.

Next: Rising calls for the separation of church and state

POST SCRIPT: Another scene from Soap

Here is an extended scene from Soap which features all the main characters. It takes place in the home of Jessica Tate (Mary Campbell's sister) just after the funeral of Bert Campbell's son Peter, who had been murdered.

The "rabbi" in this scene is actually Danny, Mary Campbell's son, who is in disguise because the mob wants to kill him.

November 06, 2007

From Scopes to Dover-11: The Scopes verdict appealed

(For previous posts in this series, see here.)

The Scopes 'monkey trial' came to an abrupt end on the eighth day, Tuesday, July 21, 1925.

The judge began the day by stopping the questioning of Bryan from continuing and ordered his previous day's testimony stricken from the record. But the damage had been done since the point of the case, after all, was not to persuade the jury in the room but to score points to a wider nationwide audience. Darrow had exploited his line of questioning of Bryan to gain a major propaganda victory for science, in the full glare of the national media, by showing that religious beliefs like Bryan's led to an intellectual cul-de-sac.

Following the judge's ruling on ending Bryan's testimony, the defense promptly rested its case and Darrow made a brief statement asking the jury to bring in a verdict of guilty. He told them:

As far as this case stands before the jury, the court has told you very plainly that if you think my client taught that man descended from a lower order of animals, you will find him guilty, and you heard the testimony of the boys on that questions and heard read the books, and there is no dispute about the facts. Scopes did not go on the stand, because he could not deny the statements made by the boys. I do not know how you may feel, I am not especially interested in it, but this case and this law will never be decided until it gets to a higher court, and it cannot get to a higher court probably, very well, unless you bring in a verdict.

The defense's strategy all along had been to argue against the Butler Act on constitutional grounds in the appellate courts, hopefully all the way to the US Supreme Court. In order to have grounds for such an appeal they needed to have Scopes found guilty in the lower court. Since pleading guilty at the outset would not have allowed Scopes to appeal, he had to plead innocent and yet be convicted, which explains the seemingly strange request of a defense counsel asking the jury for a guilty verdict.

But there was an additional benefit by resting the case without presenting a closing statement for the defense and simply asking for a directed verdict of guilty. According to trial rules, the defense not making a closing statement meant that the prosecution could not make one either. The defense was executing a deliberate strategy to prevent the prosecution, especially Bryan, from having the last word and making its own closing statement. So rather than Bryan ending the case with the kind of grand, eloquent, and sweeping speech that The Boy Orator was famous for, the last impression that he left was his dismal performance on the witness stand. Darrow had outmaneuvered Bryan again.

The jury duly complied with Darrow's request and after just a few minutes deliberation returned with the verdict, finding Scopes guilty. There then occurred a seemingly trivial bit of court business that would result later in the case not having the legal impact that had been sought. The jury said they had not decided on the size of the penalty and judge said he would impose the minimum sentence required by law, which was $100. The chief prosecutor said that he thought that Tennessee law required the jury, not the judge, to set the fine, but the judge said it was his understanding that as long as it was just the minimum fine, he could set it. All sides agreed to go along with this.

The case ended with both sides claiming victory, the prosecution getting a guilty verdict, the defense claiming that they showed the superiority of science over religion.

As epilogues to this part of the story, William Jennings Bryan died in his sleep just five days later, his death so soon after the grilling by Darrow giving him the air of a martyr and recapturing some of the momentum that the antievolution movement had lost because of the trial. Scopes accepted a scholarship offer to the University of Chicago and became a petroleum engineer. For most of the rest of his life he avoided the limelight and passed up speaking offers. Dayton, Tennessee returned to being a sleepy little town.

The case now went to appeal to the Tennessee Supreme Court. Many people on the defense side, including the ACLU, tried to have Darrow removed from the defense team for the appeal since they wanted the appeal to focus on the issue of free speech and feared that Darrow's strong antipathy to religion would result in the religion issue dominating once again. But Darrow and his allies outmaneuvered them and he stayed on.

The Tennessee Supreme Court heard oral arguments in May 1926. There were many briefs filed on both sides, the state again arguing the majoritarian view that what the elected representatives decided was binding whatever its merits, basing its argument on a recent US Supreme Court judgment that had upheld compulsory school vaccinations because of the public good. The case for the state said, "What the public believes is for the common welfare must be accepted as tending to promote the common welfare whether it does in fact or not." (Summer for the Gods, Edward J. Larson, 1997, p. 214) The state also argued that the Butler Act was not meant to promote any sectarian religious belief but instead was designed to level the playing field in education, that since the Bible could not be taught in public schools, anti-Biblical theories should also not be taught. They asserted that those challenging the statute were doing so to advance atheistic views and referred to Darrow's well-known opposition to religion to support their case.

The defense countered that "this theory would absolutely nullify constitutional government and inaugurate the dictatorship of the majority." In oral arguments, defense counsel Arthur Garfield Hays said that the Fourteenth Amendment to the US Constitution prevented the state from enforcing unreasonable laws and "Tennessee's "absurd" antievolution statute violated this standard as much as a law against teaching Copernican astronomy would." (Larson, p. 215)

Darrow argued a point that has continued to be debated to this day, that the anti-evolution statute in question was not designed to foster neutrality in education but that opposition to the theory of evolution essentially sprang from a religious foundation that was hostile to science, and thus any attempt to suppress its teaching was an attempt to advance religious views at the expense of science, and that this went counter to the purposes of public schools.

Even while the appeal was being made, the defense expected that the Tennessee Supreme Court would uphold the lower court conviction, and set about planning the appeal to the US Supreme Court, which is where they hoped to win the case on free speech grounds and thus advance individual liberties.

But in a surprise maneuver, the Tennessee Supreme Court did something that prevented the defense team from achieving its goal of having the Scopes trial serve as the first major victory for the ACLU in defense of free speech. In its ruling, the court first upheld the constitutionality of the state law saying that the Butler Act did not give any preference to any religion since it did not require teachers to teach anything specific. But it then overturned Scopes' conviction on a technicality that neither side had raised in the appeal or objected to in the original trial, and that was that according to Tennessee law, the fine of $100 levied on Scopes should have been set by the jury and not the judge.

Since Scopes was now unexpectedly a man with no conviction against him, no further appeal was possible and this particular constitutional challenge ended with a whimper and not a bang, with no constitutional principle established. The issue of whether it was constitutional to ban the teaching of evolution in public schools was not resolved for another four decades, when the US Supreme Court ruled in the 1968 case of Epperson v. Arkansas, to be discussed later.

In fact, the Butler Act stayed officially on the Tennessee books, but not enforced, until 1967, when the threat of legal action was raised by another biology teacher. The state legislature then decided that having Tennessee associated with one Scopes-like spectacle was enough and the Act was finally repealed.

But while the Scopes trial did not set a legal precedent, the publicity surrounding it and the play and film depicting it ensured that ever since then it is never far from the minds of people who have had to grapple with the teaching of evolution in schools.

Next: The historical role of religion in US public schools

POST SCRIPT: Bob's amazing mind reading ability

In a previous post, I described the funny TV sitcom from the 70's called Soap. Bert's son Chuck treated his even-present ventriloquist dummy Bob like he was real and eventually so did some of the others. Here is a clip from the show. Look at Bert's wife Mary. She does not say much but Cathryn Damon was superb in the way she used facial expressions for comedic effect.

November 05, 2007

From Scopes to Dover-10: And on the seventh day, no one rested

(For previous posts in this series, see here.)

In the Genesis account of creation, after six days spent in creating the universe, god rested on the seventh day. But in the Scopes trial, day seven (Monday, July 20) was when the fireworks occurred.

The written testimony prepared by experts over the weekend was accepted into the record, along with a two-hour reading of excerpts by defense counsel Arthur Garfield Hays. All of this was kept from the jury. It was then that the surprise event occurred that forever after defined the Scopes trial. Darrow said that he would call the prosecutor William Jennings Bryan as a (hostile) witness for the defense in the afternoon. Although the rest of the prosecution team saw no good coming from this and objected, Bryan relished the opportunity to have a verbal duel with Darrow, to fight for Christianity against the militant agnostic, and he said he would testify, provided he could put the defense team on the stand as well.

Finally, the clash of titans the entire nation following the trial had been waiting for occurred. When word got around of what was going to happen that day after lunch, huge crowds gathered to see the spectacle and the judge had to order that the trial be moved outdoors to accommodate the crowd, partly because of the sweltering heat indoors and partly because he feared the floor would collapse under their weight. Bryan took the stand for the defense on Monday afternoon and the rest, as they say, is history.

Bryan's testimony did not go well. While Bryan could hold his own in grand debates over the big ideas of evolution and religion, the constraints of being a witness in a court case worked against him because the scope of his responses was limited by the questions that Darrow chose to ask. In his questioning, Darrow did not allow Bryan to make sweeping statements on the nature of science, humans, god, the soul, and evolution. Instead Darrow pressed him on very narrowly focused questions based on specific assertions made in the Bible: Did Jonah actually live in the whale for three days? How could Joshua lengthen the day by 'stopping the Sun' when it is the Earth that rotates about its axis? When did the great flood occur? How old is the Earth? Do you believe the first woman was Eve? Do you believe she was made from Adam's rib? If the serpent in the Garden of Eden was compelled to crawl on its belly as punishment for tempting Adam and Eve, how did it move about before that? Did it walk on its tail? Where did Cain get his wife? (For a fascinating transcript of the questions and answers, see here.)

None of these questions had anything to do with human evolution but challenged Bryan on Biblical literalism and put him in a quandary. If Bryan stuck to the literal truth of the Bible in every detail, Darrow could make him look ridiculous by showing him to be completely out of touch with modern ideas, a prisoner of medieval thinking, thus discrediting the entire fundamentalist movement. If Bryan denied the literal truth and allowed for interpretation of at least some parts of the Bible as metaphors, then he weakened the prosecution's case since the defense was arguing that the law only forbade teaching "any theory that denies the story of the Divine Creation of man as taught in the Bible". Since other modernist theologians had said that the Bible could be interpreted so that it was compatible with evolution, the defense could argue that Scopes had not violated the law since there was no way of saying for certain what the Bible was saying about creation.

Modernist theologians and religious scientists who opposed Bryan's crusade against evolution have criticized Darrow's line of questioning because it was based on old-fashioned views of Christianity and merely designed to make Bryan look foolish, and that if Darrow wanted to explore the important philosophical issues in the evolution-religion debate, he should have based his questions on a more sophisticated understanding of the Bible. But I think that Darrow, canny and experienced trial lawyer that he was, knew exactly what he was doing. He had zeroed in on the weakest point of his opponent. He must have known that religion is at its strongest when it is making grand sweeping statements on the nature of life and the universe, because those are vague and hard to pin down. It is at its weakest when trying to explain concrete details. (See here and here for previous postings on this where I elaborate on the difficulties that religion has in explaining details.)

Under Darrow's questioning, Bryan faced the same problem that religious people have to this day. It is easy to proclaim faith in grand beliefs but when applied to things like Noah's Flood or Jonah or a woman being created from Adam's rib, it becomes harder to explain how such things could possibly be literally true and if not, why you believe some things in the Bible and not others. As Darrow said later, his strategy was meant to force Bryan to "choose between crude beliefs and the common intelligence of modern times. . . or to admit ignorance." (Summer for the Gods, Edward J. Larson, 1997, p. 188)

If the trial took place with today's knowledge, Darrow might have asked additional questions like: If Jesus was a man born of a virgin, from where did he get his Y-chromosome? Whose genetic information was contained in it? How did Mary's egg get fertilized? If life begins at conception as some claim, does the human soul enter that very first fertilized cell? When that first cell divides into two, what happens to the soul in it? Does it stay within the first cell, does it split in two also, does it double, or does it somehow straddle the two cells? Since the majority of human embryos spontaneously abort, why does god cause that to happen? What happens to their souls and why did god bother to give them souls in the first place if he knew he was going to abort them later? And so on.

Confronted with Darrow's relentless questioning that focused on such very narrow questions of fact, Bryan chose the option of ignorance, saying that he was not interested in finding answers to the questions posed by Darrow, and thus could not answer them, although he believed that for god all things were possible, and that answers would be forthcoming some day. In other words, he resorted to that faithful old religious standby, the 'mysterious ways clause.' But since he had agreed at the beginning of his testimony that he had studied the Bible extensively for fifty years, having to repeatedly claim a lack of curiosity about such obvious questions, and pleading ignorance of scientific facts that were common knowledge, meant that he came across as an incurious know-nothing. This enabled Darrow to suggest that adopting Bryan's position on teaching would be to condemn students to ignorance, in contrast to science that advocated active curiosity and the search for answers. When Darrow said during his questioning of Bryan that "You insult every man of science and learning in the world because he does [not] believe in your fool religion …I am [examining] you on your fool ideas that no intelligent Christian on earth believes", he was not making his case to the jury but to the larger world.

The other members of the prosecuting team saw the damage being done by this line of questioning and repeatedly objected but Bryan bravely, and perhaps foolishly, insisted on continuing until the trial adjourned for the day, saying that he did not want to be accused of being afraid to answer questions. He also probably felt that he could repair any damage during his closing statement in the case, where he would have full rein to make the kind of grand arguments in favor of god and the Bible and against evolution that had proven so successful when he gave public speeches.

But as we will see in the next posting in this series, Darrow thwarted him there too.

POST SCRIPT: Courtroom climax in Inherit the Wind

Here is a clip of the climactic scene in the film on the Scopes (who was called Cates in the film) trial in which Darrow (Drummond) questions Bryan (Brady) on the witness stand. In order to maintain the intensity, the entire scene was apparently shot in one take. It is a terrific piece of filmmaking.

November 02, 2007

From Scopes to Dover-9: The Scopes trial begins

(For previous posts in this series, see here.)

The 1925 Scopes trial in Dayton, Tennessee was brief, lasting just eight days, much of it involving legal wrangling over technicalities that took place with the jury out of the courtroom. There were only two occasions when Bryan and Darrow were able to make speeches and these occurred in the middle of the trial during legal skirmishes.

The legal backdrop to the Scopes case did not involve the US constitution. Recall that the First Amendment to the constitution (ratified as part of the Bill of Rights on December 15, 1791) says simply: "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." It is important to realize that originally the First Amendment was considered to apply only to laws passed by the federal government, since the wording explicitly only barred Congress from passing any law that infringed on those rights.

It was the Fourteenth Amendment dealing with civil rights (adopted on July 9, 1868 following the end of the Civil War) that started the expansion of the scope of the Bill of Rights. This amendment said, among other things, that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The use of the more expansive word State instead of Congress in the 'equal protection' clause resulted in subsequent US Supreme Court cases expanding the reach of the 'due process' and 'equal protection' and 'life, liberty, or property' clauses of the Fourteenth Amendment so that the Bill of Rights protections could not be encroached by state and local governments and any body acting as an agent of the government.

The first expansive reading of this sort occurred in a Supreme Court ruling that occurred on June 8, 1925, when in Gitlow v. People 268 U.S. 652 (1925), the Supreme Court asserted that the freedom of speech and the press in the First Amendment were two of the liberties protected from infringement by state and local governments under the Fourteenth Amendment. The court said in its opinion:

For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.

Eventually, by a series of these kinds of expansions, all the First Amendment protections were construed as binding on state and local governments as well. But that was some way down the road, occurring long after the Scopes trial. The Gitlow verdict, delivered just a month before the Scopes trial, probably came too late to be part of the strategy of the defense team in the Scopes case, who chose to argue in favor of free speech under the Tennessee state constitution.

The Scopes trial has cast such a long shadow and has reverberated so much in public consciousness, that it is worthwhile to have a quick summary of events of that trial, in order to separate the facts from the folklore that has arisen around it. (For comprehensive review of the case, see Summer for the Gods, Edward J. Larson, (1997). For a brief description of the trial and excerpts from the trial transcript, see here. To get a flavor of the atmosphere during the trial, read excerpts from reporter H. L. Mencken's account. A timeline of the trial can be seen here.)

Day 1, Friday, July 10: The morning saw the grand jury and witnesses appear to issue a new indictment, since the older one had a technical flaw. Scopes had to tell a reluctant student that he would be doing him a favor by testifying against him and was duly indicted again. After lunch, jury selection took place.

Day 2, Monday, July 13: The defense made a motion to quash the indictment on the grounds that it violated, among other things, the Tennessee state constitution on individual freedom of speech and religion. The defense expected this to be overruled but needed to go through the motions in order to use these grounds to appeal to the higher courts later. The defense argued that the theory of evolution was as well established as the Copernican theory and thus forbidding teaching it was an unreasonable action by the state. The prosecution countered that the state had the right to prohibit the teaching of any subject at all. (Larson, p. 158-60).

Then Clarence Darrow rose to give the rebuttal and gave what some say was the best speech of his long career. He pointed out that Tennessee had been teaching about evolution for years with no problem until people like Bryan came along and tried to use the Bible to determine what should or should not be taught. He said the new law made "the Bible the yard stick to measure every man's intellect, to measure every man's intelligence, and to measure every man's learning. . . .The state of Tennessee under an honest and fair interpretation of the constitution has no more right to teach the Bible as the divine book than that the Koran is one, or the book of Mormon, or the book of Confucius, or the Buddha, or the Essays of Emerson. . .There is nothing else, your Honor, that has caused the difference of opinion, of bitterness, or hatred, of war, of cruelty, that religion has caused." His statement provided a rousing finish to the day.

Day 3, Tuesday, July 14: This saw some legal wrangling over the propriety of having opening prayers at such a trial and an investigation by the judge over the source of some leaks of his anticipated ruling on whether to quash the indictment and dismiss the charges.

Day 4, Wednesday, July 15: The judge, as expected, rejected the motion to quash the indictment and the trial proper got under way. The prosecution's opening statement consisted of just two sentences, merely saying that they would show that Scopes had violated the law by teaching that "mankind is descended from lower animals" and that therefore "he has taught a theory which denies the divine creation of man as taught in the Bible." The defense said in its opening statement that "We will show by the testimony of men learned in science and theology that there are millions of people who believe in evolution and in the story of creation as set forth in the Bible and who find no conflict between the two. The defense maintains that this is a matter of faith and interpretation, which each individual must make for himself." (Larson, p. 171)

Only four witnesses were called for the prosecution. The school superintendent testified that the official school textbook did refer to evolution and that Scopes had admitted to teaching it. Two students testified that Scopes had taught them evolution, and the chair of the local school board (in whose drugstore the whole plan for this trial had been hatched) testified that Scopes had admitted to him to teaching evolution. The prosecution completed its case in less than an hour.

The defense began by calling a religious zoologist Maynard Metcalf to provide by some expert testimony on evolution. Metcalfe distinguished between the fact of evolution having occurred, which he said was accepted by scientists, and the theory behind it, about which he said there were still unanswered questions.

Day 5, Thursday, July 16: The day began with a debate about whether further expert testimony on evolution should be allowed. Bryan gave a rousing two-hour speech, the only one he made at the trial, although he gave many speeches outside the courtroom during that period. In his speech, he recapitulated many of the points he had made in his New York Times essay, described earlier.

This was responded to by an equally rousing speech from another member of the defense team Dudley Fields Malone who said that the defense wanted a chance to prove the truth of evolution and the benefits of science. "We feel we stand with science. We feel we stand with intelligence. We feel we stand with fundamental freedom in America. We are not afraid." (Larson, p. 179)

Chief prosecutor Tom Stewart ended the day with another speech in which he said that evolution "strikes at the very vitals of civilization and Christianity and is not entitled to a chance." (Larson, p. 180) He also said "They say it is a battle between religion and science. If it is, I want to serve now, in the name of the great God, that I am on the side of religion. . .because I want to know beyond this world that there might be an eternal happiness for me and others." (Larson, p. 180)

Day 6, Friday, July 17: The judge ruled on the issue of allowing further expert testimony by saying that "defense could present written affidavits or read prepared statements into the record. . .but the prosecution could cross-examine any witness put on the stand." (Larson, p. 181) This requirement posed a problem for the defense. Although they wanted to present expert testimony on the stand, they did not want the scientists to be cross-examined because they feared that it would reveal that although the scientists were religious people, they did not believe in the literal truth of the virgin birth and other miracles. As another defense attorney Arthur Garfield Hays said, "It was felt by us that if the cause of free education was ever to be won, it would need the support of millions of intelligent churchgoing people who didn't question theological miracles" and that kind of testimony risked losing that support. (Larson, p. 181) So they agreed to provide written affidavits to be entered into the record for the purposes of appellate review.

Over the weekend, eight scientists prepared written testimony that essentially said that "evolution is a fact, and that a well rounded education cannot do well without it." (Larson, p. 184) Some sought to reconcile evolution with creation, as did four religion experts. (Larson, p. 186) But while that preparation was going on, Darrow was planning the surprise that would forever after grab the imagination of the public and define the trial.

Next: Williams Jennings Bryan takes the stand.

November 01, 2007

From Scopes to Dover-8: Freedom of speech or science versus religion?

(For previous posts in this series, see here.)

What is interesting about the 1925 Scopes 'monkey trial' case is that it was really fought on two levels, both of which have survived to this day. On the surface level, the legal arguments had little to do with the issue of inserting religion into the public schools. Bryan was arguing two points: (1) that the community, through their elected representatives, had the right to decide what should be taught in their local schools, and (2) that since the teaching of religious doctrines had already been eliminated from public schools, so should other unproven doctrines like evolution, especially since the latter doctrine undermined the former. As he said in his essay God and Evolution (New York Times, February 26, 1922, p. 84):

The Bible has in many places been excluded from the schools on the ground that religion should not be taught by those paid by public taxation. If this doctrine is sound, what right have the enemies of religion to teach irreligion in the public schools? If the Bible cannot be taught, why should Christian taxpayers permit the teaching of guesses that make the Bible a lie?
. . .
Our opponents are not fair. When we find fault with the teaching of Darwin's unsupported hypothesis, they talk about Copernicus and Galileo and ask whether we shall exclude science and return to the dark ages. Their evasion is a confession of weakness. We do not ask for the exclusion of any scientific truth, but we do protest against an atheist teacher being allowed to blow his guesses in the face of the student. The Christians who want to teach religion in their schools furnish the money for denominational institutions. If atheists want to teach atheism, why do they not build their own schools and employ their own teachers?

Bryan was trying to drive a wedge between what he felt were well-established scientific truths like the heliocentric model of the solar system, and unproven theories like evolution. Bryan was also advocating a majoritarian point of view, arguing that elected officials had the right to determine what was taught and to exclude the teaching of those things that were not scientific facts. Darrow and the ACLU, on the other hand, were arguing that this was an issue of academic freedom, that teachers should not be barred by law from teaching what they believed to be true. (Note that this is an interesting reversal from recent battles where it is the advocates of creationism who argue that not allowing the teaching of intelligent design in schools is a violation of the free speech rights of teachers. As we will see later, this switch has occurred because over time, as a result of several US Supreme Court decisions, the legal and constitutional issues involved have shifted considerably from those that were at issue in the Scopes trial.)

But beneath the surface level, there was clearly another level in which both Bryan and Darrow thought that the theory of evolution and religion did conflict, and this was the real fight that was relished by and sought for by both, to determine which worldview was true. This second front in the case caused some consternation to their respective allies, which consisted of state attorney general Tom Stewart for the prosecution and the ACLU for the defense.

The lead prosecutor Stewart wanted to try the case on a simple question of fact, whether Scopes had violated the law by teaching about human evolution. Hence he opposed the introduction of any scientific expert testimony and Biblical analysis, arguing that these were irrelevant.

But Bryan, the much-higher profile prosecution co-counsel of Stewart, felt that when the ideas of evolution were applied to human beings, it led to a devaluation of humanity and was the cause of much evil in the world. Being a political progressive and advocate of peace, he was concerned that the theory of evolution was leading to exploitation, injustice, and wars. He was thus eager to argue a much more expansive case and show that evolution was a false and dangerous theory.

The main strategy of the defense was to exploit the fact that the wording in the Butler Act only prohibited teaching evolution that "denies the story of the Divine Creation of man as taught in the Bible". This provided them with an opening to examine the role that interpretation played in understanding the message of the Bible and to show that more sophisticated interpretations seemed to make the Bible and evolution compatible. This enabled them to also teach about the theory of evolution, to show that that it was true and had the support of scientists, and that teachers should have the free speech right to teach accepted scientific theories without the threat of punishment. This strategy was what led them to request that they be allowed to provide the expert testimony of scientists and theologians.

But in addition to the free speech case, Darrow was also a well-known militant agnostic who thought that Christianity was just a bunch of superstitions and relished the chance to demonstrate the superiority of science and the absurdity of Christian beliefs.

With the two most famous people in the case, Bryan and Darrow, both eager to extend the case not only beyond narrow questions of fact, but also beyond the issue of free speech, it was inevitable that they would prevail and the case would become a high-profile contest between evolution and religion, just as the civic leaders in Dayton had hoped.

POST SCRIPT: The Beagle project

As I have mentioned before, 2009 will be a big Darwin year, commemorating the 200th anniversary of his birth as well as the 150th anniversary of the publication of On the Origin of Species. I came across The Beagle Project which seeks to create a replica of The Beagle, the ship on which Darwin made his epic voyage, and recreate the path taken on the original trip, starting in 2009 and ending in 2011.

The trip is not meant to be simply a joy ride. It will also carry out scientific experiments.