Emory Report
January 17, 2006
Volume 58, Number 15


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January 17, 2006
Scopes II and beyond

John Witte is Jonas Robitscher Professor of Law and director of the Center for the Study of Law and Religion.

Eighty summers ago, the nation stood transfixed by the spectacle of two giants, William Jennings Bryan and Clarence Darrow, in the muggy courthouse of tiny Dayton, Tenn., fighting valiantly over the place of creation and evolution in the public school.

Bryan, three-time presidential candidate, defended creationism as “inerrant fact” and denounced evolution as “atheistic fiction.” Darrow, representing the newly formed American Civil Liberties Union (ACLU), insisted that evolution was “scientific fact” and creationism “obsolete myth.”

Bryan won the argument. But the 1925 Scopes case was a storm signal of many battles to come between lawand religion and religion and science.

This past fall, the nation stood transfixed again by the battle rejoined in Dover, Pa., now pitting proponents of intelligent design (ID) against the ACLU. This time the ACLU won handily. Their main argument: ID is simply biblical creationism by another name, and to teach it in public schools violates the First Amendment prohibition on government establishments of religion.

The ACLU had strong precedent on its side. In 1968, the Supreme Court ruled that states may not ban the teaching of evolution in public schools. In 1987, the court ruled that states may not require creationism be given equal time with evolution in the science curriculum. Creationism is religion not science, several later federal courts concluded, and the establishment clause forbids its teaching, directly or indirectly, in the public
school science classroom.

Given these precedents, the result in the Dover case was almost inevitable. Dover school board officials required biology teachers to tell their students that evolution was “not a fact” but “a theory” with ample “gaps” for which “there is no evidence.” The teachers thus encouraged students to consider the “explanations of intelligent design” and directed them for more information to a standard ID textbook—one derived in part from
an earlier book on “scientific creationism.”

Federal district court Judge John Jones, a recent Bush appointee and professed Christian, found the Dover school policy patently unconstitutional and its litigation strategy a form of “breath-taking inanity.” ID is not science but creationism in a new guise, he concluded, and the school board’s attempts to deny its religious inspiration and implications depended on “subterfuge” and “hypocrisy.”

The judge was particularly incensed that the defenders of the policy “who so staunchly and proudly touted their religious convictions in public” were repeatedly caught “lying” and engaging in “sham arguments” to disguise their true religious convictions.

For all its purplish prose, and for all the national celebration and lamentation it has occasioned, the Dover decision is legally very narrow: It applies only to a single district in Pennsylvania, not to the whole nation. The decision precludes ID instruction only from public school science classes; it does not preclude stories of creation and ID theories from public school classes in philosophy, logic, poetry, literature, cosmology or other subjects. The decision applies only to actual instructional time in the classroom; it does not prohibit the teaching or celebration of creation by voluntary student groups meeting in public school classrooms after school hours (let alone when they leave the school grounds). And the decision applies only to public schools. It has no bearing on private—religious—schools.

This last point bears emphasis. The Dover case reflects only one side of the two-sided compact that the Supreme Court has constructed over the past half-century to govern religion and education questions. Yes, the First Amendment establishment clause prohibits religion from much of the public school. But the First Amendment free exercise clause protects religion in all parts of the private school. While confessional creationism might not be welcome in public schools, it can have full ventilation in private schools, in Bible and science classes alike.

The court has long forbidden confessional religion from the public school using this logic: The public school is an arm of the state. It must communicate basic democratic and constitutional values to its students, including those of the First Amendment. The state compels students to go to school. These students are young and impressionable. Some relaxation of constitutional values might be possible in other public contexts, where mature adults can make informed assessments of the values being transmitted.

But no such relaxation can occur in public schools attended by impressionable youths who are compelled to be there. Particularly, the First Amendment establishment clause cannot be relaxed. The establishment clause requires separation of church and state, the court has long held. In the public school, if nowhere else in public life, no religious texts, teachers, symbols or rituals are allowed.

The converse logic governs private schools. Private schools are viable and valuable alternatives to public schools, the court has repeatedly held, and they allow students to be educated in their own religious tradition. Given that public education must be secular under the establishment clause, private education may be religious under the free exercise clause.

To be accredited, private schools must of course meet minimum educational standards. They must teach reading, writing and arithmetic, not to mention history, geography, social studies and the like, so that their graduates are not culturally or intellectually handicapped. But these religious schools are perfectly free to teach all those subjects with a religious slant and to teach religious courses beyond them.

This two-sided compact on religion and education, while by no means perfect, strikes me as a prudent way to negotiate the nation’s growing religious and intellectual pluralism. Religious liberty litigants, on both the right and the left, should stop trying to renegotiate the basic terms of this compact and spend more time trying to maximize liberty and justice for all within these terms.

The right has spent untold millions the past two decades trying to introduce bland prayers, banal morals and now bleached theology into public schools. That money could have been much better spent on a national scholarship and voucher program that gives real educational choice to the poor.

The left has spent untold millions more trying to cut religious schools and their students from equal access to funds, facilities and forums available to all others. That money would have been much better directed to shoring up the many public schools that are demonstrably failing.

We have the luxury in this country of litigating about religious symbolism. But we would be better served by tending to weightier matters of the law.

A version of this essay first appeared in The Atlanta Journal-Constitution.