hua@cmu-cs-gandalf.ARPA (Ernest Hua) (02/14/85)
This is submitted by me on behalf of a friend in Louisiana State U.
Most readers will know that the Louisiana equal-time bill was recently
struck down for constitutional reasons.
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Greetings to net.origins. I am new to this list (in fact I
cannot really get the list, and must have it forwarded by a
friend). I have, however, read the last 2800 lines or so,
and I think I have some issues which should be raised. You
see, I have some experience "in the trenches" with the
creationism issue. I am a member of the state board of the
Louisiana affiliate of the ACLU, having rejoined ACLU the
day after the Louisiana legislature passed the "balanced
treatment" bill in 1981. This past spring, I testified in
the State Senate Education Committee on behalf of a bill to
repeal the "balanced treatment" law. Later, I lobbied
heavily in the State Senate and the State House for repeal.
Repeal passed the Senate 21-19, and lost in the House 61-26.
After the repeal bill failed, I filed an affidavit with the
ACLU describing the nature of the debate in the legislature.
Someone on this list in the last few weeks cited Roger
Lewin's article from _S_c_i_e_n_c_e. I have been Roger Lewin's
"source" in Louisiana.
Some quotations, exchanges, and observations:
State Senator B. B. ("Sixty") Rayburn, from Bogalusa, the
most senior of Louisiana's state senators, speaking during
debate on repeal: "The arguments here are the same as the
arguments that were raised when we passed the original bill,
that it's unconstitutional and that it's going to cost a lot
of money. I didn't care about that then and I don't care
now."
State Senator David Ginn, of Bastrop: "I don't care about
the Supreme Court". This is a "moral issue, just like
prayer in schools, and I'm going to choose the moral side."
"Evolution is the work of secular humanists and other left-
wing idiots."
I discussed the repeal issue briefly with one of the lobby-
ists against repeal, a tall man in a dark blue suit with a
Bible in his hand. I asked him why, if creationism were
scientific, the National Academy of Sciences had issued a
statement and a lengthy brochure to assert the contrary.
His response: "Because they aren't Christians."
Some members of my academic department happened to be asked
by State Representative Allen Bradley, of DeRidder, to help
formulate the language of a bill on computer crime. I asked
Bradley about two weeks later, when repeal came up, if he
could vote for repeal. His response: "I'd like to help you
on this, but I have seven Assembly of God churches in my
district."
State Representative John Travis, of Jackson, offered an
amendment to the bill to repeal which would forbid the
teaching of evolution in the public schools and "let the
preachers and the parents teach" the children about the ori-
gins of life and of man.
During the final moments of the debate in the House, I was
sitting next to a lobbyist against repeal, with whom I had
had a fairly vigorous discussion. (Sufficiently vigorous,
in fact, that we had been asked to be quiet, as the
representatives couldn't hear each other screaming and cal-
ling each other names and throwing pieces of paper at each
other. Neither the manufacture of sausage nor of laws
should be observed.) As the vote came on, she was clenching
her Bible, eyes closed, lips moving in almost-silent prayer.
When the vote was clear, her first words were "Praise the
lord."
State Representative Avery Alexander, of New Orleans, speak-
ing during debate on the bill: "Did you know [addressed to a
proponent of the bill to repeal] that evolution infers that
man began as a one-celled animal millions of years ago . . .
_a_n_d _t_h_a_t _d_i_r_e_c_t_l_y _c_o_n_t_r_a_d_i_c_t_s _t_h_e _B_i_b_l_e?" [emphasis was the
speaker's] "Did you know," he continued, that he had asked
his congregation [he is by profession a part-time Baptist
minister] about evolution "last Sunday" and "in my church,
people are opposed to evolution." Speaking after repeal had
been defeated, he said, "If they take religion out of this
country, it won't be long before we revert to cave men" with
the decline in culture and morals that reversion would
imply. "We deplore the fact that the Constitution says we
can't pray in the schools any more." Evolution [at one point
he slipped and said "revolution"] he said, is worse than
communism or Naziism. Evolution, he said, says that life
came about randomly, that there is "no God" and "no Crea-
tor." His closing remark was a statement in support of the
principle that "whenever we teach evolution we can teach
about God."
At the bottom of this long submission I include the entire
text of the summary judgement rendered by Judge Duplantier
in New Orleans. I heartily recommend it to all--it is
refreshing to see anyone, to say nothing of a lawyer and a
judge, write something that is so clear and so totally unam-
biguous.
SUMMARY AND COMMENTS: There seems to be, based on the dis-
cussions I have read from this bulletin board, some question
in the minds of the people on this bulletin board as to
whether creationism is religion or is science. I don't know
where you people happen to live, but I have to take some
pride in the realization that in Louisiana we are one up on
you--we have settled this issue. Here, creationism is, by
the obvious inclinations of its supporters, both in and out
of the legislature (After the repeal passed the State Sen-
ate, a massive mailgram campaign was organized by several
religious groups; curiously enough, the sponsor in the House
of the bill to repeal received dozens of mailgrams from
alleged constituents of his whose names did not appear in
the phone book and whose addresses quite simply did not
exist.), by the numerous religious leaders (Roman Catholic,
Methodist, Presbyterian, Baptist, Jewish, and others) who
were plaintiffs in the ACLU lawsuit, and by the ruling of
the federal judge, a religious belief.
This brings me to my next comment and question. IF one were
to foster the teaching of creationism in the public schools,
where would one go to find literature, books, and a body of
"knowledge" that constituted "creationism." The Institute
for Creation Research and the Creation Research Society are
flatly and patently obviously religious organizations; they
require acceptance of a particular religious belief for
membership. Creation-Life Publishers is thus unacceptable.
Their documents are therefore not going to be acceptable in
the public schools. Similarly, Zondervan Press is also a
religious outfit. (I happen to have this first hand. I
asked the manager of one of Zondervan's retail stores if it
was a religious publishing company, and she quite obligingly
told me it was.) If you run down the bibliography and refer-
ence list of, say, Henry Morris's _S_c_i_e_n_t_i_f_i_c _C_r_e_a_t_i_o_n_i_s_m,
almost every single document is published by a religious
publishing house. Where is there an accepted body of "crea-
tionist" literature that is not affiliated with religious
groups? I ask this in part rhetorically, because I have
taken a position on this issue, but also from a very realis-
tic point of view. In the Arkansas court case the creation-
ists were careful to avoid the taint of ICR or CRS; in
Louisiana, one of the objections raised by the Board of Edu-
cation to the law was that it could not be implemented, as
the law mandated the teaching of something which did not
exist (secular creationism). IF creationism can be
separated from religious groups; IF creationism can be
separated from Genesis; IF it can be demonstrated that
acceptance of the validity of creationism does not first
require acceptance of specific religious beliefs, THEN maybe
it could be argued that creationism is not a sub-belief of
some other religious doctrines. Until then, it fails to be
legal to teach because it is indeed religion, as has been so
rightly determined by the federal judges.
Duncan A. Buell
csnet address: buell@lsu
The full text of Judge Duplantier's decision follows.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DON AGUILLARD, ET AL CIVIL ACTION
VS. NO. 81-4787
DAVID C. TREEN, GOVERNOR, ET AL SECTION "H"
REASONS FOR JUDGMENT
At its 1981 regular session, the Louisiana Legislature
added a new sub-part to Louisiana's "General School Law,"
applicable to all public secondary and elementary schools,
entitled "BALANCED TREATMENT FOR CREATION-SCIENCE AND
EVOLUTION-SCIENCE IN PUBLIC SCHOOL INSTRUCTION." The statute
is reproduced in full in the addendum. It requires Louisi-
ana public schools to "give balanced treatment to creation-
science and to evolution-science;" "[b]alanced treatment of
these two models shall be give in classroom lectures . . . ,
and in other educational programs in public schools, to the
extent that such lectures, textbooks, library materials, or
educational programs deal in any way with the subject of the
origin of man, life, the earth, or the universe." Creation-
science and evolution-science are separately defined in
identical language as "the scientific evidences for creation
(evolution) and inferences from those scientific evidences."
"Balanced treatment" requires that each shcool provide
"whatever information and instruction in both creation and
evolution models a classroom teacher determines is necessary
and appropriate to provide insight into both theories." No
school is required to give any instruction in the "subject
of origin," but if a school chooses to teach about either
evolution-science or creation-science, it must teach both,
and it must give each balanced treatment. The statute
prohibits discrimination against any teacher "who chooses to
be a creation-scientist or to teach scientific data which
points to creationism." [1]
A number of plaintiffs, including parents of Louisiana
public school students, as well as educators, taxpayers, and
religious leaders, seek to enjoin implementation of the
"Balanced Treatment" statute as a violation of the First
Amendment's Establishment Clause. Defendants, Louisiana
officials charged with the duty of implementation of the
statute, have agreed to take no action toward implementation
pending the final outcome of this litigation. [2]
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1. No mention is made of discrimination against teach-
ers of evolution.
2. Earlier, this court held that the statute violated
the state constitutional grant of authority over the
public school system to the Board of Elementary and
Secondary Education. We suggested that that issue
should be certified by the Fifth Circuit to the Louisi-
ana Supreme Court for its decision before any federal
court intervention on First Amendment grounds. Defen-
dants appealed, and the Fifth Circuit Court of Appeals
certified the question to the Louisiana Supreme Court.
_A_g_u_i_l_l_a_r_d _v. _T_r_e_e_n, No. 82-3778 (March 14, 1983). In a
4-3 decision, the Louisiana Supreme Court held that the
statute did not violate the Louisiana Constitution.
_A_g_u_i_l_l_a_r_d _v. _T_r_e_e_n, 440 So.2d 704 (La. 1983). The
Fifth Circuit then remanded for this court to consider
the First Amendment challenge.
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Plaintiffs moved for summary judgment, contending that
there is no genuine issue as to any material fact and that
as a matter of law the statute violates the Establishment
Clause as interpreted by the United States Supreme Court and
the Fifth Circuit Court of Appeals.
There is no doubt that the defendants could produce a
great deal of evidence on collateral issues, as did the pro-
ponents of a similar Arkansas statute during ten days of a
federal court trial which resulted in a declaration of
unconstitutionality. _M_c_L_e_a_n _v_s. _A_r_k_a_n_s_a_s _B_o_a_r_d _o_f _E_d_u_c_a_-
_t_i_o_n, 529 F.Supp. 1255 (E.D. Ark. 1982). Indeed, in opposi-
tion to the summary judgment motion defendants have filed
well over one thousand pages of memoranda and summaries
thereof and affidavits, all dedicated primarily to a discus-
sion of the anticipated evidence.
We are convinced that whatever that evidence would be,
it could not affect the outcome. We decline to put the peo-
ple of Louisiana to the very considerable needless expense
(including fees of attorneys on both sides) of a protracted
trial. We hold that this case is ripe for summary judgment.
Bound as we are by the Constitution as interpreted by the
Supreme Court and the Fifth Circuit Court of Appeals, we
declare Act 685 of the 1981 regular session of the Louisiana
Legislature to be unconstitutional and enjoin its implemen-
tation.
Both sides seek comfort from recorded statements of
proponents and opponents, from various committee hearings,
from drafts of earlier proposals and bills, and from amend-
ments to the original bill before it was finally enacted.
The plaintiffs maintain that all of this "history" points to
a religious purpose for and effect of the statute; with
equal (and much lengthier) fervor, defendants contend the
opposite: the history shows that religion is not involved.
All of this "history" is of little or no effect. The sta-
tute is not ambiguous; it means what it says.
Defendants contend that summary judgment is precluded
by the presence of at least one genuine issue of material
fact, the definition of "science." We decline the invitation
to judge that debate. Whatever "science" may be, "crea-
tion," as the term is used in the statute, involves reli-
gion, and the teaching of "creation-science" and "creation-
ism," as contemplated by the statute, involves teaching
"tailored to the principles" of a particular religious sect
or group of sects. _E_p_p_e_r_s_o_n _v. _A_r_k_a_n_s_a_s, 393 U.S. 97, 106,
89 S.Ct. 266, 271 (1968). As it is ordinarily understood,
the term "creation" means the bringing into existence of
mankind and of the universe and implies a divine creator.
While all religions may not teach the existence of a supreme
being, a belief in a supreme being (a creator) is generally
considered to be a religious tenet.
The state may not consitutionally prohibit the teaching
of evolution in the public schools, for there can be no
non-religious reason for such a prohibition. The First
Amendment "forbids alike the preference of a religious doc-
trine or the prohibition of theory which is deemed anta-
gonistic to a particular dogma." _I_d. at 106-107, 89 S.Ct.
at 271-72. If the state cannot prohibit the teaching of
evolution, manifestly it cannot provide that evolution can
be taught only if the evolution curriculum is "balanced"
with a curriculum involving tenets of a particular religious
sect. _S_e_e _W_r_i_g_h_t _v. _H_o_u_s_t_o_n _I_n_d_e_p_e_n_d_e_n_t _S_c_h_o_o_l _D_i_s_t_r_i_c_t,
366 F.Supp. 1208 (S.D. Tex., Houston Division 1972), _a_f_f'_d,
486 F.2d. 137 (5th Cir. 1973).
Because the statute requires the teaching of creation-
science if a school teaches a subject the teaching of which
the state cannot constitutionally prohibit, we treat the
statute as if it simply mandates the teaching of creation-
science. Just as the sole reason why the Arkansas legisla-
ture prohibited the teaching of evolution was that it is
deemed to conflict with a particular religious doctrine
(_E_p_p_e_r_s_o_n, _s_u_p_r_a), so too the sole reason why the Louisiana
legislature would require the teaching of creationism is
that it comports with the same religious doctrine. There
can be no legitimate secular reason for the "Balanced-
Treatment for Creation-Science and Evolution-Science Act."
We are mindful, of course, that the issue is not
whether the statute is meritorious, or whether it enjoys
popular support. We are also mindful that any act passed by
the state legislature is presumed to be constitutional, and
that a court should declare a statute which is not self-
implementing facially unconstitutional only if under no cir-
cumstances can it be applied in a constitutional manner.
_S_e_e _G_i_t_l_o_w _v. _N_e_w _Y_o_r_k, 268 U.S. 652, 45 S.Ct. 625 (1925);
_C_o_x _v. _L_o_u_i_s_i_a_n_a, 379 U.S. 559, 85 S.Ct. 476 (1965). We
have carefully considered whether the Louisiana public
school system could implement the "Balanced-Treatment Act"
in a manner that would not offend the Establishment Clause.
We conclude that it could not do so.
Arguably, a public school curriculum could give bal-
anced treatment to evolution and creationism without advo-
cating the latter. A study of the Bible for its literary
and historic qualities only would not involve advocacy of
its content. A study of comparative religion or history of
religion could be conducted without advocating the beliefs
of any particular religious sect. Curricula such as those
would be constitutional. (_S_e_e _S_c_h_o_o_l _D_i_s_t_r_i_c_t _o_f _A_b_i_n_g_t_o_n
_T_o_w_n_s_h_i_p, _P_e_n_n_s_y_l_v_a_n_i_a _v. _S_c_h_e_m_p_p, 374 U.S. 203, 225, 83
S.Ct. 1560, 1573 (1963)). However, it is clear that the
statute under consideration does not contemplate mere objec-
tive exposure of the creationism concept as part of a secu-
lar program designed to educate students concerning various
theories of the origin of man and the universe.
In considering whether the "Balanced-Treatment Act"
violates the Establishment Clause of the First Amendment, we
make the same acknowledgment as did the Supreme Court in the
oft-cited _L_e_m_o_n opinion: "Candor compels acknowledgment . .
. that we can only dimly perceive the lines of demarcation
in this extraordinarily sensitive area of constitutional
law." _L_e_m_o_n _v. _K_u_r_t_z_m_a_n, 403 U.S. 602 at 612, 91 S.Ct. 2105
at 2111 (1971). The following three-part test is appled in
_L_e_m_o_n: First, 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 entan-
glement with religion." _I_d. at 612-13, 91 S.Ct. at 2111.
The Court has not, however, adhered rigidly to the _L_e_m_o_n
_t_e_s_t. We quote from the recent nativity-scene opinion:
"[W]e have repeatedly emphasized our unwillingness to be
confined to any single test or criterion in this sensitive
area." _L_y_n_c_h _v. _D_o_n_n_e_l_l_y, ______ U.S. ______, 104 S.Ct.
1355, 1362 (1984). Another view is that the First Amendment
does not prohibit governmental activity of a religious
nature so long as the activity is neutral to all religions.
[3] One conclusion seems clear: the meaning of the First
Amendment is not set in constitutional stone.
Whether one applies the "three-pronged" test of _L_e_m_o_n,
the less rigid analysis of _L_y_n_c_h, or the views of those who
contend that the First Amendment does not prohibit neutral
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3. "[T]he Constitution guarantees freedom _o_f religion,
but should not be construed to guarantee freedom _f_r_o_m
religion." Unpublished Reasons for Judgment of this
court, reversed by a divided panel of the Fifth Cir-
cuit, _K_a_r_e_n _B. _e_t _a_l _v. Treen, et al No. 80-4774 (E.D.
La. January 8, 1981), _r_e_v'_d 653 F.2d 897 (5th Cir.
1981) (emphasis in original).
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state activity of a religious nature, the Louisiana statute
violates the establishment clause. Because it promotes the
beliefs of some theistic sects to the detriment of others,
the statute violates the fundamental First Amendment princi-
ple that a state must be neutral in its treatment of reli-
gions. The First Amendment, as applied to the state by the
Fourteenth, [4] provides that the state "shall make no law
respecting an establishment of religion." "The Balanced-
Treatment for Creation-Science and Evolution-Science in Pub-
lic School Instruction Act" is a "law respecting an estab-
lishment of religion."
(Signed and dated 1/10/85 by Adrian Duplantier, Judge)
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4. _C_a_n_t_w_e_l_l _v. _C_o_n_n_e_c_t_i_c_u_t, 310 U.S. 296, 60 S.Ct. 900
(1940).
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