January 12, 2006
-- John Witte, Jr.
Eighty years ago, the nation stood transfixed by the spectacle of two
giants, William Jennings Bryan and Clarence Darrow, fighting valiantly
over the place of creation and evolution in public schools. Bryan, three-time
presidential candidate, defended creationism as "inerrant fact"
and denounced evolution as "atheistic fiction." Darrow, representing
the new ACLU, insisted that evolution was "scientific fact"
and creationism "obsolete myth." Bryan won the argument. But
the 1925 Scopes Trial was a signal for many battles to come.
This fall, the nation stood transfixed again by the same battle rejoined in Dover, Pennsylvania—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 that creationism be given equal time with evolution in the science curriculum. Creationism is religion, not science, and has no place in public school science classes—whether directly or indirectly.
Given these precedents, the result in Dover was almost inevitable. The public school board had required teachers to tell their students that evolution is "not a fact" but "a theory" fraught with "gaps" in the "evidence." Students were thus encouraged to consider the "explanations of intelligent design" as well.
Judge John Jones, a recent Bush appointee and professed Christian, found the school's policy patently unconstitutional and described its litigation strategy as "breath-taking inanity." Intelligent design 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." 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 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 only from public school science classes. It does not preclude it from public school classes in philosophy, cosmology, literature, and others. The decision applies only to actual instructional time in the classroom. It does not preclude voluntary student groups from teaching and celebrating creation after school hours. And the decision applies only to public schools, not to private 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 much religion in public schools. But the First Amendment free exercise clause protects all religion in private schools. While confessional creationism is barred from public schools, it is welcome in private schools, including their science classes.
This two-sided compact of religion and education, while by no means perfect, strikes me as a prudent way to negotiate the nation's growing pluralism. Both the right and the left should stop trying to renegotiate the basic terms of the compact, and work instead to maximize liberty 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 should have funded 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 could have shored up many public schools that are disastrously failing.
We have the luxury of litigating about issues of religious symbolism in public life, but we might do better if we tended to the weightier matters of the law.
John Witte, Jr., is Jonas Robitscher Professor of Law and Director of the Center for the Study of Law and Religion at Emory University.