Creation/Evolution Journal

Creationism and the First Amendment

Creationism and the First Amendment
Reviewed by
Delos B. McKown

In an enlightening but disturbing article, entitled "Freedom of Religion and Science Instruction in Public Schools" (Yale Law Journal, January 1978, 87:3:515-570), attorney Wendell R. Bird lays the constitutional foundation for demanding equal time in the public schools for "scientific creationism." Because this article is referred to so frequently by creationists, it will be necessary to analyze its main arguments in detail. Another article by Bird, this one a short popular piece entitled "Evolution in Public Schools and Creation in Students' Homes: What Creationists Can Do" (ICR Impact Series, March 1979, 69:i-iv), provides additional material on the same subject and is thus useful for interpreting the former. For thoroughness in analyzing Bird's constitutional arguments, these two articles will both be used, referred to respectively as the Y-article (Yale) and the I-article (ICR), followed by page and footnote numbers.

"A controversy is raging over public school instruction in the origin of the universe and life," says the opening sentence of Bird's Y-article (p. 515). The crux of this controversy is the general theory of evolution. Why, Bird agonizes, is this theory taught in the public schools as the only scientific approach to origins (I-article, p. i)? Dismissing the fact that (at present, at least) there is no scientific alternative to it, scientific creationists, hoping to rectify what to them is a deplorable situation, have rolled out the two biblical creation stories, dolled them up in scientific jargon, and offered them to the public as though they were one, rather than two, and scientific throughout.

The problem for Bird and his cohorts is how to get this model of divine creation accepted as a legitimate scientific theory on a par with the general theory of evolution. There is always the danger for them that some educators, courts, and enlightened citizens will detect old-fashioned biblical creationism behind the garb of scientific creationism—much as the little boy of legend saw the naked emperor behind his nonexistent finery. Since teaching biblical creationism in its unclothed form, so to speak, violates the First Amendment, as Bird points out (Y-article, p. 553), it is necessary for scientific creationists to resort to various stratagems. The first and most significant of these is Bird's charge that "exclusive public school instruction in the general theory of evolution, at the secondary and elementary

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levels, abridges free exercise of religion" (Y-article, p. 518). Second is the strenuous, if not frantic, attempt to recast biblical creationism as scientific in the hope that it will then be acceptable in public education. And third is the effort to prove that the general theory of evolution is somehow an article of faith, thus rendering it religious and on a par with creationism.

The Free Exercise Argument

Bird contends that exclusive public school instruction in the general theory of evolution abridges the free exercise of religion, because that practice, to him, elevates what is a mere theory to the level of fact. The "indoctrination" of creationist students, which results from the exclusive presentation of this theory, is supposedly unconstitutional because the Supreme Court has ruled that the public schools may neither undercut religious convictions nor violate religious practices—such as the practices of some sects requiring their children to avoid a much as possible exposure to worldly affairs (I-article, p. ii). From the same text Bird refers to such separatist practices as avoiding fellowship with the "unfruitful works of darkness." Moreover, the public schools may not compel students to make unconscionable declarations of belief (Y-article, pp. 526, 528, fn. 49). It is illegal, in his view, to ask creationist students any question that would require an evolutionist answer, for that would be a species of corrupt communication (hence, unconscionable), all forms of which are expressly forbidden to Christians (Ephesians 4:29).

Since the public schools are coercive through attendance requirements and prescribed curricula and since teacher influence and peer pressure promote conformity with whatever is being taught as fact, such as evolution, one possible constitutional remedy to this burden on the religious rights of creationists would be to give equal time to one or more alternative points of view. This, argues Bird would prevent indoctrination in any one position. And since the courts have already ruled, according to Bird (Y-article, p. 563), that it would be unreasonable to give equal time to all religious theories of origins, public school teachers would not have to master the many mythological accounts of creation. It would suffice if they were to master only one: the alternative view known as scientific creationism, a scientific model fully on a par with evolution and a benefit to no particular religion.

Suppose, however, that the schools, courts, and a majority of the parents of public school children were not to agree that scientific creationism is scientific or on a par with evolution and that they were to recognize its clear benefits to the literalist, fundamentalist, evangelical wing of Christianity? What then? Bird points out that the Constitution does not require states to provide public school (Y-article, pp. 565-566, fn. 262). Furthermore, states have the authority to abolish

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instruction in a topic or a discipline in public school curricula. If instruction in origins were to become too expensive due to litigation or too divisive in the communities of a state to make it worth retaining, such instruction could simply be eliminated.

This means that the simplest way to remove the burden on free exercise of religion is to remove all teaching related to the origins of the universe and life. Bird maintains that the state has no compelling interest in having the public schools teach anything in this area. The state's compelling interests lie, rather, in producing future citizens who will be literate and knowledgeable of the history and civics of their country. Even granting that the state has some interests in acquainting students with certain elements of science, there is little or no reason why information on origins should be included.

In public utterances and in print, scientific creationists usually pose as people who are asking for no more than equal time in the public schools for what they believe is the scientific alternative to the general theory of evolution (Y-article, p. 517). In private, however, it seems clear that they would like to drive the general theory of evolution from the classroom altogether and have only creationism taught. If they cannot accomplish the latter, they will accept the former. If they cannot accomplish the former, it seems reasonable that they will do whatever they can to have the threat implicit in Bird's Y-article carried out. That is, their cause would be well served by getting as many states as they could to eliminate all instruction in scientific theories concerning the origin and development of the universe, earth, and life. If science instruction should be gutted in the process, so be it!

The error in Bird's reasoning seems to be his view that the exclusive teaching of evolution is a threat to the religious rights of creationists. At least two recent court decisions counter this argument. In Crowley vs. Smithsonian Institution, the U.S. District Court of Washington, D.C., ruled that creationists' free exercise of religion was not impaired simply because they might happen upon a public museum exhibit on evolution that was distasteful to their faith. In Segraves vs. California, the Sacramento County Superior Court ruled that the state's guidelines on the exclusive teaching of evolution in the public schools did not represent such a burden.

Bird, of course, disagrees. He cites McCollum vs. Board of Education as though it applies in the case of creationists. But the McCollum decision ruled against sectarian religion in the public schools. Such religious instruction is not only a burden on the free exercise rights of nonreligious children but is an unconstitutional breech of the wall of separation between church and state—even if there are no students or parents who complain. The remedy in such a case is always to remove the instruction. But in the case of instruction of evolution, there is no presentation of sectarian religion. There is simply a situation where a student's beliefs clash with particular nonreligious subject matter. Without student

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complaint, no problem would exist. So in these cases, the solution is always to remove the student (in a manner that would spare the child from derision by his or her peers). This is sometimes how matters are handled when parents object to sex education.

But even if these court rulings had supported Bird's reasoning, there is a more practical remedy than Bird's choice of either equal time for creationism or removal of all instruction in origins. Interestingly enough, Bird suggests this remedy himself. Since elimination of origins from the curriculum "would obstruct the state concern in presentation of the general theory," then interference of this type "might be minimized by elimination of instruction in a particular topic, the general theory, in only an alternate class. Another existing biology class might continue presentation of the general theory" (Y-article, p. 577, fn. 277). Each year a different biology teacher could be set aside to teach a biology class denuded of all references to origins. This would be for conscientious objectors and would involve neither creation nor evolution. No one but the teacher and the objecting students would need to know about it, thus eliminating the risk of peer pressure. It is not surprising that Bird would relegate this idea to a mere footnote at the end of his Y-article and never mention it again. His purpose is to promote creationism or ban evolution in the public schools. This footnoted alternative would do neither and therefore is probably not to his liking.

The Creationism Is Science Argument

The second stratagem of Bird and other creationists is the attempt (really a propaganda blitz) to convince all and sundry that there is a creationist model of origins on a par with the general theory of evolution—namely, scientific creationism. Bird agrees wholeheartedly that to teach biblical creationism in the public schools would surely violate the establishment clause of the First Amendment (Y-article, p. 553). But, he continues to say that instruction in scientific creationism avoids this prohibition (pp. 554-555). If the scientific version happens to conform with the religious version, this is merely a coincidence.

This "coincidence" calls for careful scrutiny. Bird lists six points that constitute the model of scientific creationism, each of which is quoted and analyzed below (Y-article, p. 554).

First is the "special creation of matter and life." Creationists cannot abide the idea that what we commonly call "matter-energy" names The Given—that is, the ultimate that can only be accepted on its own terms and remains to be explained and understood on those same terms insofar as is humanly possible. Scientific creationists try to transcend matter-energy by positing its creator. For such folk, the creator then becomes The Given, The Underived One, the same yesterday, today, and forever.

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But even if there were a given of this latter sort, what, we must ask, are the compelling reasons for believing that the biblical God resembles it? After all, the world has known many gods, not a few of whom have been creators in one way or another. Merely to say that matter-energy and life have been created is not to specify how or by which divine agency. David Hume, the Scottish philosopher, once observed that for all we can know this world may be "only the first rude essay of some infant deity who afterwards abandoned it, ashamed of his lame performance," or, perhaps, the work of some "dependent, inferior deity" whose handiwork is the "object of derision to his superiors" or, finally, the product of the "old age and dotage in some superannuated deity," an artifact that "ever since his death has run on at adventures from that first impulse and active force which it received from him." Bird, however leaves no doubt as to which deity he has in mind (I-article, pp. i-ii). That he has committed the fallacy of assuming the creator of matter-energy and the biblical God to be one and the same seems to have escaped him.

Second is the "stability of original plant and animal kinds." In Genesis the various kinds of plants and animals are commanded to bring forth after their own kind (1:11-12, 21, 24-25). Just why descent with modification (evolution) after an initial creation should be objectionable to a creator-deity is never made clear. Why, for example, would a world whose life forms evolve toward greater order and complexity not be as excellent as a world whose species were fixed? It is obviously not just any creator of matter-energy and life but the biblical God whose wishes in the matter are at issue.

Third is the denial of any "common ancestry of human beings with apes." Bird is right in thinking that neither of the Genesis accounts of human creation (1:27 and 2:7, 22) announces that Adam and the apes came from a common rib, so to speak. But then again, Genesis never mentions the existence of apes. Why so important a classification of animals as the primates is excluded from specific mention is curious, especially in view of the astonishing similarities in blood proteins between humans on the one hand and chimpanzees and gorillas on the other.

Fourth, scientific creationism "offers catastrophism." What a strange locution! Why not simply say that the evidence leads scientific creationists to hypothesize that physical processes occurring now may not always have occurred at the same rates during all past epochs? That would serve to distinguish uniformitarianism (the belief that processes similar to those occurring now occurred at similar rates in the past) from catastrophism (the belief that some processes have been subjected to radical alteration in rate on one or more prior occasion). The solution to the strange locution is best left until the sixth point is discussed.

Fifth, scientific creationism "suggests that the law of entropy, or change toward disorder, applies to the earth and living organisms." Granted, but applies is a very weak term—one too weak to permit Bird to propose that entropy

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prevents the evolution of life from nonliving molecules and of complex forms of life from simpler ones (I-article, pp. ii-iii). Entropy would hold no theological charm for scientific creationists if it could not be trundled out conveniently to render evolution impossible. But does it? All thermodynamicists (excepting committed Christians or related fundamentalists) who believe that the second law of thermodynamics prevents organic evolution would do us a great favor if they would identify themselves and give their reasons for so believing. We should not expect a stampede; no, a corporal's guard would be more like it, for there is nothing inconsistent between entropy as a fact about the universe taken as a whole and the evolution of life at specific places in the universe, such as on earth, at least for limited periods of time. Scientific creationists do not merely grasp at entropy as a drowning person grasps at the proverbial straw, some at least believe the second law to be revealed, even if darkly, in Genesis 3:17, which says, "cursed shall be the ground because of you"—that is, because of Adam and Eve for their indulgence in forbidden fruit. The precise consequences of this curse are spelled out in the verses of Genesis immediately following and have nothing whatsoever to do with thermodynamics.

Sixth is the contention that the "world and life came into existence relatively recently," by which scientific creationists mean not more than about ten thousand years ago. But why recently? There is nothing about the special creation of matter-energy or about the special creation of life by some divine agency that requires either recent or close dating. The recent date is a requirement of biblical literalism, of good old-fashioned fundamentalism. Furthermore, nothing in modern science necessitates or suggests that the universe, the earth, and life on earth all originated no more than about ten thousand years ago and within a few days of each other. It is dating internal to the Bible in general and to the first chapters of Genesis in particular that require the recent date mentioned above. In short, scientific creationists have not been led to the idea of a recent creation by evidence scientifically garnered but by faith alone. In fact, in order to bolster their young universe claims, scientific creationists have wheeled out the Noachian flood (Genesis 6:8-9:17) in an attempt to falsify the large body of evidence supporting dates of origin immensely more remote than anything suitable for Genesis.

The geological evidence for a planetary flood of water twenty-two feet above the highest mountain, lasting up to a year (Genesis suggests two different time spans) and occurring less than ten thousand years ago is, at best, scanty in the annals of science. Unabashed by this lack of historicity, scientific creationists proceed to out-do even the most fanciful of ancient mythmakers by claiming that the Noachian flood was a catastrophe of such planetary magnitude as to render uniformitarianism invalid when applied to processes occurring prior to the deluge and to falsify the dating of any events that occurred earlier than ten thousand years ago. Just how the flood invalidates dates of cosmic events that are based on

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studies of the red shift in stellar spectra is unclear, but it or something equally catastrophic must have, because, according to a literal reading of Genesis, the earth was created prior to the sun and other stellar bodies.

One can see now why Bird said earlier that scientific creationism "offers catastrophism." Indeed, it is so scientifically hard-up that it has to offer the catastrophe of a nonexistent event in the hope of nullifying any and all assumptions and techniques leading to belief in planetary and cosmic events occurring millions and billions of years ago. Since a literal reading of Genesis requires that creation be recent, the true believer must offer anything, even a modified Mesopotamian flood story, in order to make it so and must grasp at any straw, even the weak reed of entropy, in attempting to render evolution impossible.

Among the various kinds of fraud, pious fraud looms large and occurs with distressing frequency. A prime example is the creationist contention that the model of scientific creationism is based on scientific inquiry (rather than on faith in revelation) and only coincidentally conforms with biblical creationism. It is a fraud because four of the six points in the model of scientific creationism are biblically dependent rather than scientifically supported, and the remaining two are related to biblical texts covertly. The "special creation of matter and life," although seemingly deistic or religiously neutral, is actually biblical. Which god Bird has in mind is made clear by the fact that he continually argues that over "fourteen million individuals in the nation are adherents of religions that explicitly teach special creation" and that this is a major argument for equal time (Y-article, p. 550). "The stability of original plant and animal kinds" is biblical as is the denial of any "common ancestry of human beings with apes." Neither would be necessary in a merely monotheistic or religiously neutral creation science. Noah's flood is biblical and was certainly a catastrophe within the confines of the story, although hardly a catastrophe of the magnitude claimed for it by scientific creationists. In this respect our modern myth makers far exceed their ancient progenitors. Entropy, though not specifically biblical, can still be justified by reinterpreting the "curse" in Genesis 3:17 (not to mention Psalms 102:25-26; Matthew 24:35; Romans 8:22). And also the notion that the "world and life came into existence relatively recently" is biblical.

If, as Bird has admitted, the teaching of "biblical creationism would contravene the establishment clause" of the First Amendment (Y-article, pp. 553-554), then so too would scientific creationism, the two being practically the same.

The Evolution Is Humanism Argument

The third stratagem consists in trying to transmute the general theory of evolution into an article of faith, thus rendering it religious. In his Y-article, Bird disavows any intention of considering whether or not "unneutral instruction in the general

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theory of evolution is an establishment of religion" and thus a violation of the First Amendment (p. 518, fn. 15). Nevertheless, he cannot resist quoting Dr. Henry M. Morris, whom he calls the "foremost advocate" of scientific creationism (p. 515, fn. 12): "Creation is as scientific as evolution and . . . evolution is as religious as creation" (p. 557, fn. 209). Nor can he resist quoting these ringing words again in his I-article (p. iii). What now remains at issue is the contention that evolution is as religious as creation.

"Much support for the general theory is religious, " Bird claims. "The late Sir Julian Huxley provides a prominent example in his advocacy of the `religion of evolutionary humanism, and the `religious humanism' movement provides another" (Y-article, p. 517, fn. 14). In the same vein, he writes, "The renowned Humanist Manifesto . . . stressed the general theory of evolution. . . . Humanist Manifesto II also emphasized [it]." Finally, noting that there is a group called the Fellowship of Religious Humanists, he discerns "a definite conjunction of the general theory with religious Humanism" (Y-article, p. 556, fn. 206). Since Bird also states categorically that the general theory of evolution is "neither a religious doctrine nor religious Humanism" (Y-article, p. 558, fn. 212; p. 564), why then these irrelevant remarks first giving the eminent Dr. Morris's opinion that evolution is as religious as creationism and then contradicting him?

Perhaps he wishes to hint at the notion but not put himself on the line about it. After all, the mere acceptance of a scientific theory by a religious group does not magically make such a theory religious. That would be like saying that, because most Christians believe in gravity, gravity is religious and not scientific. This point is too obvious for Bird to forthrightly oppose.

But whether or not the general theory of evolution is unscientific (as creationists maintain), one thing is clear: scientific creationism is unscientific, being nothing but badly disguised biblical creationism, albeit embellished with a few scientific terms. In order to strengthen their very weak case for equal time in the public schools, tarring the opposition with the same brush helps the scientific creationists. Dr. Duane T. Gish, associate director of the Institute for Creation Research and professor of natural science at Christian Heritage College, makes this crystal clear. In Evolution: The Fossils Say No!, he refers to such men as Julian Huxley, George Gaylord Simpson, and Jacques Monod, saying, "They have then combined this evolution theory with humanistic philosophy and have clothed the whole with the term science. The product, a nontheistic religion, with evolutionary philosophy as its creed under the guise of science, is being taught in most public schools, colleges, and universities of the United States. It has become our unofficial, state-sanctioned religion" (p. 12). Although Attorney Bird is not above committing elementary fallacies on behalf of scientific creationism, when writing in the Yale Law Journal, he is too discreet to state the case as baldly as does Dr. Gish. Since scientific creationism cannot pass muster as scientific (at least, among informed people), what more effective ploy is there than to brand

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the opposition as equally religious? Then the conflict between creationism and evolution can be seen as the scientific creationist would have it: a conflict between the false religion of godless humanism and his own true religion—not a conflict between science and religion, if by the former is meant the discoveries of the free, open, and critical mind and by the latter any cult to which scriptural literalism (or other inherently anti-scientific commitment) is crucial.

The First Amendment and Science

The threats which scientific creationists pose are not unique. Other religious interests pose similar threats in principle at least and, in Constitutional terms, pose them legitimately. The First Amendment says in part, "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof...." The Supreme Court has interpreted this (suitably augmented by the Fourteenth Amendment) to mean that government at every level must be neutral respecting religion. Thus, government may not favor any religious position or party over another nor be hostile to any in any way. On the contrary, it must be respectful of all beliefs taken and held sincerely by individuals to be religious. Furthermore, since a citizen has the right not to affirm a doctrine offensive to his religion, it follows that the government may not force a profession of belief or of disbelief in any religious doctrine or creed. Although ours is a theistic heritage, deeply embedded in the Judeo-Christian tradition, the framers of the Constitution and its official interpreters have not defined religion in theistic terms alone but have conceived of it so broadly as to include nontheistic religions and even atheistic philosophies of life that function in the adherent's life as does religion in the theist's life. Moreover, government may not establish tests for the veracity, the rationality, or the relative importance, theologically speaking, of any given belief taken to be religious. In short, even though religious practices may sometimes be curtailed, religious beliefs, of whatever kind, are inviolable precisely because they are religious.

So far, so good. The First Amendment represents a gigantic step forward in church-state relationships. Nevertheless, within its freedoms and protections grow the roots of the conflict now burgeoning between science and science education on the one hand and fundamentalist religion on the other. Although the scientific outlook may prevail in the long run, it is sobering to note that, as of now, any religion, no matter how absurd or benighted, enjoys greater constitutional protection than does any science—or aspect thereof—no matter how sober or well confirmed. To put it even more bluntly, any religious mythology or superstition is more secure legally than is the academic integrity of science, particularly in primary and secondary schools: If nothing else, Bird's articles provide a service by making this fact abundantly clear.

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