Darwinism and the Law:

Can Non-Naturalistic Scientific Theories Survive Constitutional Challenge?

H. Wayne House*

The entrance of Charles Darwin’s[1] Origin of Species[2] changed the world. This is not because belief in evolution was a new and exciting theory unconsidered before this time, for indeed a variation of the view existed in many ancient cultures.[3] In addition, several scientists already accepted a theory of evolution before the publication of Darwin’s book,[4] though certainly not the majority in Darwin’s time, since many of his contemporaries within the scientific community had serious concerns about his theories.[5] The benefit of Origin of Species, many of its various postulates having long been discarded by contemporary scientists,[6] is that it provided an alternative mechanism by which to explain the beginning and development of the cosmos and life.[7] The orthodox religious view of special creation (creatio ex nihilo)[8] no longer would be required to explain how life began and the battle between a theistic (supernaturalistic) and a non-theistic (naturalistic) explanation for the cosmos began.[9]

I. Background to the Conflict between Creation

and Evolution in American Law

A. The Scopes Trial

1. Backdrop to the Trial

The Scopes trial[10] was probably the beginning of public awareness of evolution in the United States. Scientists of the early twentieth century had already largely accepted evolution,[11] as had many Christian church leaders[12] and theologians.[13] The Scopes trial came in the midst of the fundamentalist-modernist controversy[14] which threatened to engulf all of religious America and was seen as the heart and soul of the church.[15]

The Scopes trial was initiated[16] by the American Civil Liberties Union[17] [hereinafter ACLU] in a newspaper ad[18] to test a Tennessee law[19] which forbade the teaching of the idea that human beings evolved from lower forms of life, in the state’s public schools,[20] because the idea contradicted the Biblical account of creation. The ACLU hired the famous defense attorney Clarence Darrow[21] to defend teacher John Scopes.[22] Scopes, a substitute science teacher,[23] agreed to confess to having violated the Tennessee anti-evolution law, teaching evolution from the popular biology book A Civic Biology,[24] although post-trial evidence indicated that he had not done so.[25]

The expected dignity of a court trial gave way to a circus-like atmosphere,[26] probably unlike anything experienced in the United States until the famous O.J. Simpson criminal trial,[27] but considerably different from Jerome Lawrence and Robert E. Lee’s fictional Inherit the Wind,[28] which was based on the Scopes trial. Journalists throughout the United States, and from other countries, crowded into the small town of Dayton, Tennessee.[29] William Jennings Bryan,[30] an eloquent speaker and three-time nominee for presidency of the Democratic Party,[31] was no match for the manner and tactics of Clarence Darrow, who was able to get Bryan on the witness stand as an expert in the Bible.[32]

Extravagant, exaggerated, and excessive claims were made by both sides in the trial. One account described the extravagant conditions this way:

Members of the jury were caught up more in the drama of the event than in the proceedings themselves. Former colleagues and acquaintances were now adversaries; both Darrow and Malone had assisted the political ambitions of Bryan. Scopes had been in the graduating class at Salem High School when Bryan delivered the commencement address. Scientific experts came from all over to testify, but none of their statements was allowed as evidence. Darrow was cited for contempt and Bryan took the witness stand. Scopes was never called to testify. Moreover, Scopes was a math teacher who only periodically taught biology as a substitute. He later admitted, “To tell the truth, I wasn’t sure I had taught evolution.” No matter. If Scopes was found guilty . . . Bryan would pay his fine, contending that the law should not have had a penalty.[33]

2. The Testimony of William Jennings Bryan

The interrogation of Byran by Darrow was highly unusual,[34] with Darrow attempting to demonstrate that the arguments upheld by Byran in the case were foolish ideas “that no intelligent Christian on earth believes.”[35] Bryan testified that the reason he would take the stand was not for strictly legal purposes but his desire to have a Christian testimony before the world:

Mr. Bryan—The reason I am answering is not for the benefit of the superior court. It is to keep these gentlemen from saying I was afraid to meet them and let them question me, and I want the Christian world to know that any atheist, agnostic, unbeliever, can question me any time as to my belief in God, and I will answer him.[36]

The questioning took several tacks but the underlying approach was to call into question the reasonableness of the literal approach to Scripture that Bryan supported, by seeking to get Bryan to admit that the miracles that he accepts from the Bible are nonsensical:

Q—But when you read that Jonah swallowed the whale—or that the whale swallowed Jonah—excuse me please—how do you literally interpret that?

A—When I read that a big fish swallowed Jonah—it does not say whale.

Q—Doesn’t it? Are you sure?

A—That is my recollection of it. A big fish, and I believe it, and I believe in a God who can make a whale and can make a man and make both what He pleases.

. . . .

Q—Now, you say, the big fish swallowed Jonah, and he there remained how long—three days—and then he spewed him upon the land. You believe that the big fish was made to swallow Jonah?

A—I am not prepared to say that; the Bible merely says it was done.[37]

Some of that questioning was harsh and entertaining at the same time:

Mr. Darrow—You insult every man of science and learning in the world because he does not believe in your fool religion.

The Court—I will not stand for that.

Mr. Darrow—For what he is doing?

The Court—I am talking to both of you.

. . . .

Q—Wait until you get to me. Do you know anything about how many people there were in Egypt 3,500 years ago, or how many people there were in China 5,000 years ago?

A—No.

Q—Have you ever tried to find out?

A—No, sir. You are the first man I ever heard of who has been interested in it. (Laughter.)

Q—Mr. Bryan, am I the first man you ever heard of who has been interested in the age of human societies and primitive man?

A—You are the first man I ever heard speak of the number of people at those different periods.

Q—Where have you lived all your life?

A—Not near you. (Laughter and applause.)

Q—Nor near anybody of learning?

A—Oh, don’t assume you know it all.[38]

Other questions from Darrow to Byran reveals that Bryan was less a religious fundamentalist than has been popularly thought, since he testified that the days of creation may not have been solar days of twenty-four hours, and that the earth might be very old:

Q—Have you any idea how old the earth is?

A—No.

Q—The book you have introduced in evidence tells you, doesn’t it?

A—I don’t think it does, Mr. Darrow.

Q—Let’s see whether it does; is this the one?

A—That is the one, I think.

Q—It says B.C. 4004?

A—That is Bishop Usher’s calculation.

Q—That is printed in the Bible you introduced?

A—Yes, sir. . . .

Q—Would you say that the earth was only 4,000 years old?

A—Oh, no; I think it is much older than that.

Q—How much?

A—I couldn’t say. . . .

Q—Do you think the earth was made in six days?

A—Not six days of twenty-four hours.

Q—Doesn’t it say so?

A—No, sir. . . .

Q—. . . Does the statement, “The morning and the evening were the first day,” and “The morning and the evening were the second day,” mean anything to you?

A—I do not think it necessarily means a twenty-four-hour day.

Q—You do not?

A—No.

Q—What do you consider it to be?

A—I have not attempted to explain it. If you will take the second chapter—let me have the book. (Examining Bible.) The fourth verse of the second chapter says: “These are the generations of the heavens and of the earth, when they were created in the day that the Lord God made the earth and the heavens,” the word “day” there in the very next chapter is used to describe a period. I do not see that there is any necessity for construing the words, “the evening and the morning,” as meaning necessarily a twenty-four-hour day, “in the day when the Lord made the heaven and the earth.”

Q—Then, when the Bible said, for instance, “and God called the firmament heaven. And the evening and the morning were the second day,” that does not necessarily mean twenty-four hours?

A—I do not think it necessarily does.

Q—Do you think it does or does not?

A—I know a great many think so.

Q—What do you think?

A—I do not think it does.

Q—You think those were not literal days?

A—I do not think they were twenty-four-hour days.

Q—What do you think about it?

A—That is my opinion—I do not know that my opinion is better on that subject than those who think it does.

Q—You do not think that?

A—No. But I think it would be just as easy for the kind of God we believe in to make the earth in six days as in six years or in 6,000,000 years or in 600,000,000 years. I do not think it important whether we believe one or the other.

Q—Do you think those were literal days?

A—My impression is they were periods, but I would not attempt to argue as against anybody who wanted to believe in literal days.

. . . .

Q—The creation might have been going on for a very long time?

A—It might have continued for millions of years.[39]

What is especially interesting about Bryan’s testimony is that he does not fall into the category of recent age creationists as is so usually suspected of those who seek to advocate a creationist position.[40]

3. Darrow to the Defense

As entertaining, and at times very noncommittal, as Mr. Bryan’s testimony was, the testimony for the defense also was problematic. None of their scientific experts gave oral testimony at trial,[41] and some of the testimony provided was inaccurate scientific information.[42]

In reality, Darrow wanted to lose this case—admitting to the court that the charges against his client were all true[43]—so that he might appeal to higher courts.[44] He knew that the ultimate decision would have considerable impact on the future of science and religion in the United States.

B. Renewed Interest in Teaching Evolution

1. Race to Space

It was more than thirty years before the matter of evolution became of paramount national importance again. Generally, the battle regarding the teaching of evolution in public schools, except for occasional skirmishes,[45] was calm in the 1930s and 1940s and the scientific establishment was almost lethargic in pushing the evolutionary view. But things changed in the 1950s due to two major occurrences. One was the advancement of scientific interest in America caused by the Soviet Union’s launch of Sputnik in 1957,[46] suggesting a Russian scientific superiority over the American scientific community. This motivated Americans to support reforming the science curriculum in public schools.[47]

2. 100^th Anniversary of Darwin’s Origin of the Species

The second event that renewed interest in evolution was the 100^th anniversary, in 1959, of the publication of Darwin’s Origin of Species. This occasion awakened the scientific establishment,[48] engendering a greater push to present evolution in the classrooms of America. This was particularly so with the Biological Science Curriculum Study, which had as its basis the theory of evolution,[49] as well as the National Association of Biology Teachers,[50] which had been in the forefront of promoting evolution.

C. Creationist Responses to Darwinism

Evolutionists were not the only group galvanized by the events of the late 1950s. Along with the renewed push from evolutionists came the formation of the creation-science movement. A few examples of creationist attempts to move the debate in the favor of creationism bear mentioning.

1. Formation of Scientific Creationist Organizations

In 1963 the Creation Research Society was established in order to give an alternate point of view to the predominant evolutionary approach espoused by the scientific establishment.[51] Since 1963, creationists,[52] though a small scientific community, have made considerable impact in the public at large with their books,[53] newsletters and magazines,[54] and debates with evolutionists.[55] Moreover, there have been several controversies over the creation-evolution issue regarding public school textbooks and classrooms:

creationist bills demanding equal time for a ‘creation model’ of origins have been submitted to legislatures in more than thirty states. State boards of education, including those in Texas and California, have been pressured to accept textbooks that include creationist materials. Local boards of education have also been targeted by creationists for grassroots action as a means of achieving their goals regardless of legislatures and state boards.

Publishers of science textbooks have also come under pressure. In order to have their books accepted as texts, a number of publishers have accommodated creationist demands in various ways. They have reduced the space given to discussion of evolution and referred to evolution as ‘only a theory.’ They have included creationist materials and placed references to evolution in a final chapter which the teacher can conveniently omit. In fact, some new biology texts have managed to avoid the word evolution altogether.[56]

Creationists’ influence in the formidable Christian community of the United States has been considerable, while they have caused no more than a ripple in the waters of academia. The majority of the American public has been in sympathy with the creationist perspective that desires a two-model approach to the issues of origins,[57] causing no small concern on the part of many of the nation’s scientists.[58]

2. The Tennessee Law of 1973

On April 30, 1973 the Tennessee legislature passed a bill which avoided the prohibition policy that it was reviewed in Scopes[59] and simply made illegal any textbook which presented the evolution of man and the world as scientific fact and did not state that evolution is a theory. Moreover, if evolution was presented in any textbook, alternate theories, including the Genesis account in the Bible, must be presented. A third requirement was that if the Bible is used a reference work in these classes, it would not be required to include the disclaimer as required in the science textbooks.[60]

Almost as soon as the bill passed the legislature law professor Frederic S. LeClercq began working with the assistance of the National Association of Biology Teachers[61] against what might be rightly considered the first balanced treatment law. After a series of legal maneuverings,[62] the case came before the Sixth Circuit, which declared the law “patently unconstitutional.”[63] For the first time in the creation-evolution controversy, a court used the three-prong test of Lemon v. Kurtzman[64] to determine whether the statute violated the Establishment Clause of the First Amendment.[65] In order to pass constitutional muster, “[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’”[66]

The court noted, that although the law does not forbid the teaching of evolution, it nonetheless preferred the Biblical version of creation over any scientific theory.[67] The court then concluded:

We believe that in several respects the statute under consideration is unconstitutional on its face, that no state court interpretation of it can save it, and that in this case, the District Court clearly erred in abstaining from rendering a determination of the unconstitutionality of the statute on its face.[68]

The court then provided its rationale. The state law required, if evolution be taught, that the Biblical account be also included and that all theories but the Biblical account must have a disclaimer. The result of the legislation would be a clear preference for the Biblical version of creation over views based on scientific reasoning and enforcement of the statute would establish religion, contrary to the first prong of the Lemon test.[69] Moreover, it would involve the State Textbook Commission in such a manner as to violate the third prong against excessive entanglement with religion.[70]

3. Introduction of the Balanced Treatment Acts

a. Model Act

In the early 1980s a number of states passed what has become known as the “Balanced Treatment Act.”[71] This came about due to a concerted effort on the part of persons within the creationist movement who desired to pass legislation that would insure that creationism would be taught alongside evolution in the public schools of those states. The uniformity of these various pieces of legislation is due to the work of Wendell R. Bird,[72] attorney for the Institute for Creation Research (hereinafter ICR), and based on the arguments he made in an article written in the Yale Law Journal.[73]

The different bills[74] presented throughout state legislatures took different forms, but include considerable verbal agreement and structure, indicating a common source. For example, the definition of scientific creationism found in these legislative bills incorporates most, if not all, of the elements contained in the Arkansas bill at issue in McLean v. Arkansas:[75]

(1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about the 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 of humans 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.[76]

The following chart demonstrates the similarities and differences among some of these legislative enactments.

State	Creatio ex-nihilo	No single organism evolution	Changes within fixed limits	Human & Ape Separate ancestry	Catastrophism or worldwide flood	Recent earth
Ga.[77]	Yes	Ambiguous	Only inferred	Ambiguous	No	No
Mo.