482 U. S. 578
June 19, 1987
In 1981, Louisiana passed a law requiring creation science to be taught whenever evolution was taught in public school science classes. The state legislature said that this law’s purpose was preserving academic freedom. Immediately, a federal court enjoined the act’s enforcement, on the theory that it had no valid secular purpose, and thus violated the establishment clause’s Lemon test.
The Court ruled 7-2 that Louisiana’s law was unconstitutional. Brennan wrote the majority opinion, which stressed the particular importance of keeping religion out of public schools. Turning to the act’s alleged purpose of academic freedom, he declared it a sham. By forcing educators to either avoid teaching evolution or teach it alongside creation science, the act notably constricted rather than expanded academic freedom. Brennan then reviewed some statement’s of the law’s sponsor and leading proponents, and surmised that the law was really intended to bring God into school, and to discredit evolution on the basis of Christian opposition. To conclude, he defended the lower court’s decision to issue summary judgment without a trial, claiming that the law’s unconstitutionality was plain and undeniable.
Powell, joined by O’Connor, concurred, and gave some additional snippets from legislative history which illustrated the plainly religious motivations and doctrines at the heart of ‘creation science.’ Then, in a feeble attempt to play good cop, he added a few paragraphs about how schools could still teach about religion in certain appropriate contexts. White concurred in judgment. Two lower courts with Louisianans as judges had found a religious purpose, and White did not feel it was the Supreme Court’s place to second guess their interpretation. And then there was the Scalia dissent, which was joined by Rehnquist.
Scalia’s dissent is a dazzling tour de force which cannot be done full justice in only a few sentences. He first reviewed Lemon precedents to show that a pro-religious motivation does not automatically make a law unconstitutional. Next, he reviewed the legislative history in excruciating detail, and proved that Louisiana legislators could conceivably have believed that the law’s purpose was totally secular. Parsing the record further, Scalia explained that the “academic freedom” justification simply meant that students ought to be able to hear the pros and cons of evolution, and be given the ability to make up their own minds on the issue. Finally, Scalia lambasted the Lemon test’s purpose inquiry, arguing that discerning a law’s objective purpose was impossible. He demonstrated that no reliable or principled method existed to ascertain the actual purposes in the heads of state legislators.
This last section is an absolute joy to read. I wish I could quote more of it, but here’s one of the best bits: “If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility or were simply attempting to “balance” the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill’s sponsor is alone enough to invalidate it – on a theory, perhaps, that even though everyone else’s intent was pure, what they produced was the fruit of a forbidden tree?”
Edwards v. Aguillard is probably the most well remembered case from 1987; justly so too, for what a national education system teaches children about the origins of mankind is of foundational and paramount importance. Scalia was correct that the majority acted prematurely in finding a religious purpose. Nonetheless, despite Scalia’s valiant legalistic defense, I must admit as a realistic matter that the law almost certainly was religious at heart. Simply stated, Louisiana wanted God in schools. America’s legal ruling class wanted Him out.
As great theologians throughout history have pointed out, the concept of ‘neutrality’ is largely a mirage. To quote Christ, “he who is not with Me is against Me; and he who does not gather with Me scatters.” When schools teach non-theistic evolution as the origin of mankind, they are not neutral toward Christianity – they oppose it. Abraham Kuyper, a Dutch Prime Minister from the early 1900s, was one of the first politicians to figure this out. He knew that public schools were not religiously neutral, but inherently anti-theistic, and accordingly advocated for government funding of religious schools in the interest of fairness.
Justice Hugo Black actually grasped much of this logic back in 1968, when he dissented from the Court’s decision that states could not ban the teaching of evolution. He wrote “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?”
One great irony of the case is that the Louisiana legislature was not actually honoring God. God merits preeminence, but Louisiana was only willing to give Him equal time. The law was like ancient Israel declaring that they would equally celebrate both God and Ba’al. The American culture of pluralism is so strong that not even the devout Baptists and Catholics of Louisiana dared to recognize God’s dominion. So long as the establishment clause exists, Christians will never be able to completely live out their faith. As Kuyper explained, God is sovereign over absolutely everything – politics included. A faithful Christian cannot leave behind their allegiance to God in the voting booth, or in the statehouse. A faithful Christian cannot simply turn off his or her faith while deciding what laws to pass. But as Justice Brennan makes clear, this is precisely what the establishment clause directs Christians to do.