[net.religion] NEWS FROM THE FRONT LINE

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.
______________________________________________________________________________

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]
_________________________
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.
_________________________

     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
_________________________
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).
_________________________

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)

_________________________
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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END OF NEWS