A RETURN TO THE SCOPES MONKEY TRIAL? A LOOK AT THE APPLICATION
OF THE ESTABLISHMENT CLAUSE TO THE NEWEST TENNESSEE SCIENCE
CURRICULUM LAW
Brette Davis
I. Introduction
In 1925, Tennessee found itself in the national spotlight for the prosecution of an
educator who allegedly violated Tennessee law by teaching the theory of evolution in his
classroom.1 John Scopes was found guilty, but the verdict was later overturned by the Tennessee
Supreme Court.2 While the Scopes Monkey Trial led many states to consider introducing antievolution legislation,3 this trial really highlighted the tension between the science community
and the religious community.4 The battle over the teaching of evolution in schools continued
after Scopes was decided and is still prevalent today.5
Recently, a new “Monkey Bill,” as some would call it, was passed by the Tennessee
legislature and became law when the Governor failed to sign the legislation.6 This legislation
allows educators to teach alternate theories to evolution, including creationism.7 Many feel that
this legislation returns Tennessee to the Scopes era when the theory of evolution was prohibited
in schools.8 With all of the breakthroughs in science and technology, critics claim that this is a
1
Noah Adams, Timeline: Remembering the Scopes Monkey Trial, NPR, (May 15, 2012).
http://www.npr.org/templates/story/story.php?storyId=4723956.
2
Tim Ghianni, Tennessee law allows creationism theory in classrooms, Reuters, (April 10, 2012).
http://www.reuters.com/article/2012/04/11/us-usa-education-tennessee-idUSBRE83A00720120411.
3
Deborah A. Reule. The New Face of Creationism: The Establishment Clause and the Latest Efforts to Suppress
Evolution in Public Schools, 54 Vand. L. Rev. 2555,2556 (2001).
4
Only two states, Alabama and Louisiana, actually introduced legislation prohibiting evolution in textbooks and in
the classroom. Joyce F. Francis, Creationism v. Evolution: The Legal History and Tennessee's Role in That History, 63
Tenn. L. Rev. 753, 758 (1996).
5
Supra n. 3, at 2556.
6
Supra n. 2, at 1.
7
Supra n. 2 at 1
8
Supra n. 2, at 1.
step backwards for the state, as well as science in general.9 This paper looks to address the
constitutionality of this Tennessee law, as well as the implications it has on religion and science.
Part II of this paper will address the intersection of Christianity and science regarding
evolution, showing that the two are not contradictory fields. Part III of this paper will examine
the establishment clause, as well as case law particular to the evolution vs. creationism debate.
Part IV of this paper will analyze the constitutionality of the new Tennessee law, arguing that it
does not violate the First Amendment of the Constitution.
II. Intersection of Christianity and Science
There is a great misconception that Christianity and science are incompatible. The
presiding worldview is that one must choose their faith or science; a person must either believe
in evolution, or that God created the Heavens and the Earth.10 The misguided propositions
generally accepted are that (1) scientists are atheists, and (2) Christians discard evolution.11
However, despite this culture war between science and religion, many religious leaders and
scientists dispute the claims that a person can only believe in God or in evolution.
9
Supra n. 2, at 1.
Professor Francisco Ayala of the University of California, Irvine, has observed that many of his first year biology
students admit that they will answer questions on evolution the way a teacher wants them to, even though they
do not believe in evolution, because of their Christian beliefs. However, after students have spent years studying
science, they give up their faith entirely because they now believe solely in science, not religion. Somehow, science
and Christianity have become incompatible. Francisco Ayala, The Christian Man's Evolution: How Darwinism and
Faith Can Coexist, Scientific American 1 (2008). http://www.scientificamerican.com/article.cfm?id=the-christianmans-evolution. Interestingly, Darwin himself also gave up his Anglican belief, but only after the death of his ten
year old daughter, and because he did not want to accept that family members of his were in Hell, not because of
his theory of evolution. Dinesh D'Souza, The Two Faces Of Darwin, Townhall, (2009).
http://townhall.com/columnists/dineshdsouza/2009/02/12/the_two_faces_of_darwin/page/full/.
11
Joel W. Martin, What Do Most Christians Really Believe About Evolution?, The Biologos Forum, 1 (2010).
http://biologos.org/blog/what-do-most-christians-really-believe-about-evolution.
10
Alvin Plantinga argues that a belief in God and a belief in evolution are not actually in
conflict.12 Part of the reason for the apparent conflict stems from the fact that broad words such
as religion and evolution are used without actually being defined.13 For example, which theory of
evolution is actually being discussed, (1) ancient earth thesis, (2) progress thesis, (3) descent
with modification, (4) the common ancestry thesis, or (5) naturalistic origins thesis, to name a
few, is crucial to determining any potential conflict with a Biblical reading of the Earth’s
creation.14 Consequently, the incompatibility between Christianity and science is almost always
assumed, but it is actually generally erroneous.
Part of the source of the conflict is that theologians who read the Bible literally believe in
a very young Earth compared to evolutionary scientists.15 Yet there are many Christian leaders
today who do not read the word “day” in Genesis to mean a literal twenty-four hour day.16
Consequently, a religious belief in how long it took for the creation of earth does not have to
conflict with the scientific theory dating the Earth back billions of years.17
Another potential conflict between creationism and evolution is the Biblical idea that man
was created in the image of God.18 That God created “creatures with a moral sense and the
capacity to know and love [H]im” is completely consistent with evolution.19 Even the idea that
man adapts and mutates is consistent with the thought that God is the creator. As stated by
Charles Hodge, “[i]f God made them, it makes no difference how he made them,…whether at
12
Plantinga argues that there is actual conflict between theistic religion and a faction of evolutionary theorists that
claim that evolution is unorchestrated or unguided by God or any other being, but not the general theory of
evolution. Alvin Plantinga, Where the Conflict Really Lies: Science, Religion, and Naturalism, Oxford University Press
(2011).
13
One claim is that there are over forty definitions of Christianity. Supra n. 11, at 1.
14
Supra n. 12, at chapter 1.
15
Supra n. 12, at chapter 1.
16
Supra n. 12, at chapter 1.
17
Supra n. 12, at chapter 1.
18
Supra n. 12, at chapter 1.
19
Supra n. 12, at chapter 1.
once or by the process of evolution.”20 Evolution does not exclude God as the designer. Thus, the
conflict between creationism and evolution is merely superficial.
Therefore, it is possible to reconcile Christian beliefs with evolutionary theories. There is
scientific proof that, over time, species evolve. This does not disprove Biblical creationism. God
can be the creator and the designer of evolution. However, because of the removal of science
from religion and the atheistic focus now on science, society has forced people to choose
between creationism and evolution. Nevertheless, many scholars, philosophers, and scientists
acknowledge that science and religion are harmonious, and specifically, so is creation at the hand
of God compatible with evolution.
III. The Establishment Clause
Notwithstanding a potential reconciliation between the theories of creation and evolution,
the battle over what is taught in school science classes has continued since Scopes.21 As this
culture war entered the court system, the First Amendment Establishment Clause was
implemented.22 The Establishment Clause, in part, requires that government action does not
promote any particular religion. Therefore, the question becomes, when a school district allows
for the teaching of alternate theories to evolution in the classroom, is there a violation of the First
Amendment? The courts have instated a multitude of tests to help analyze Establishment Clause
issues.
20
Supra n. 12, at chapter 1.
According to Joyce Francis, this battle rages on because it is a fight for the minds and souls of the nation’s youth.
Joyce F. Francis, Creationism v. Evolution: The Legal History and Tennessee's Role in That History, 63 Tenn. L. Rev.
753 (1996).
22
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.”
21
A. The Lemon Test
The primary test used by the courts to establish the constitutionality of laws relating to
evolution in the classroom was established in Lemon v. Kurtzman.23 In Lemon, the contested
government action was regarding the allocation of government funds to nonpublic schools.24 The
court utilized a three-prong test to determine the constitutionality of the government action.25
The court held that the statute (1) “must have a secular legislative purpose,” (2) “its principal or
primary effect must be one that neither advance nor inhibit religion,” and (3) “must not foster an
excessive government entanglement with religion.”26 After applying the Lemon test, the court
found that the statutes in question violated the First Amendment Establishment Clause.27
The Lemon test has been flushed out by the courts over the years. Under the first prong of
the Lemon test, the government policy does not have to have a predominantly secular purpose,
but it must be sincere and not a sham.28 The second prong, the effects test, requires the court to
determine whether or not the policy has a neutral effect on society.29 Finally, the third prong asks
the court to decide if the policy causes excessive government entanglement with religion.30 This
three-prong test is still used by courts today; however, many critics believed that the Lemon test
is becoming less prominent.31
23
Deborah Reule, The New Face of Creationism: The Establishment Clause and the Latest Efforts to Suppress
Evolution in Public Schools, 54 Vand. L. Rev. 2555, 2565 (2001).
24
Lemon v. Kurtzman, 403 U.S. 602, 602, (1971).
25
Supra n. 21, at 562.
26
Lemon, 403 U.S. 602, 612-613.
27
Lemon, 403 U.S. 602, 603.
28
Supra n. 23, at 2566.
29
Supra n. 23, at 2566.
30
Supra n. 23, at 2567.
31
Supra n. 23, at 2566.
B. The Endorsement Test
In Lynch v. Donnelly, the court created the endorsement test, which looks to see if the
government action endorses a particular religion.32 Justice O’Connor stated in her concurrence to
the Lynch decision that the second prong of the Lemon test should actually look to see if the state
endorses or disapproves of a particular religion.33 When applying the endorsement test, courts
must look at what the state intended to communicate, as well what the state actually
communicated.34 In Lynch, the Court held that when a city displays a Christmas manger for the
holidays, the government was not endorsing Christian beliefs, particularly because such a display
generally represents the holiday, and it was displayed along with other non-religious holiday
symbols like a Santa Clause.35
C. The Coercion Test
The Court, in Lee v. Weisman, introduced the coercion test.36 In Lee, the Court held that
coercion is not necessary to prove a violation of the Establishment Clause, but it is sufficient to
prove such a violation.37 This test is used to evaluate government sponsored exercises of religion
in schools, particular when participation by students is obligated.38 Generally, the
implementation of curricula is not considered to be government sponsorship of a religious
32
Supra n. 23, at 2567.
Lynch v. Donnelly, 465 U.S. 668, 691 (1984).
34
Supra n. 23, at 2567.
35
Lynch, 465 U.S. at 691.
36
Lee v. Weisman, 505 U.S. 577, 604 (1992).
37
Id. at 604.
38
Supra n. 23, at 2568.
33
exercise.39 But, the Court did determine in Lee that starting a commencement ceremony with a
prayer amounted to coercion or inducement, and therefore, the policy was unconstitutional.40
D. Important Judicial Decisions Regarding Science Curricula
After the Scopes Monkey Trial, many states considered implementing anti-evolution
legislation. For example, Arkansas promulgated a law barring the teaching of evolution in public
schools.41 After a group of biology teachers selected a textbook which included the theory of
evolution, the Arkansas Education Association used Susan Epperson, a biology teacher, to
adjudicate the constitutionality of the state statute.42 In Epperson, the Supreme Court held that
the Arkansas statute was unconstitutional because it was clearly not religiously neutral.43 The
Establishment Clause “forbids alike the preference of a religious doctrine or the prohibition of
theory which is deemed antagonistic to a particular dogma.”44 The Court sustained the idea that
schools have the right to determine the curricula for public schools, but the justices emphasized
that this right does not extend to government action that criminally prosecutes teachers for
teaching a prohibited scientific theory when that prohibition violates the First Amendment.45
This departure from Scopes is the first in a line of cases striking down statutes dealing with
creationism and evolution. Consequently, it is essential to discuss Epperson when analyzing an
Establishment Clause case regarding school curricula.
Fourteen years following the decision in Epperson, Arkansas tried to implement a new
law that required teachers to balance the treatment of both evolution and creationism in the
39
Supra n. 23, at 2568.
Lee, 505 U.S. 578-79.
41
Supra n. 23, at 2571.
42
Supra n. 21, at 759.
43
Epperson v. State of Ark., 393 U.S. 97, 109 (1968).
44
Id. at 106-107.
45
Id. at 107.
40
classroom.46 In fact, many states looked at “balanced-treatment” legislation as the way to
promulgate constitutional legislation regarding evolution.47 Though McLean v. Arkansas Board
of Education did not reach the Supreme Court, the federal district court used the Lemon test to
analyze the constitutionality of the Arkansas balancing legislation.48 The court held that this
balancing test violated the Establishment Clause because the legislation was passed for the sole
purpose of advancing religion.49 The law failed the first prong of the Lemon test because it was
simply trying to put a Biblical view of creation into the curriculum, and the school failed to show
any secular legislative purpose.50 Therefore, this type of balancing legislation also fails to
conform to the Establishment Clause.
Five years after McLean, another type of balancing legislation, this time from Louisiana,
was challenged before the Supreme Court.51 In Edwards v. Aguillard, the legislation at issue did
not require a school to teach either creationism or evolution; however, if one of these theories
was taught, so to must the other theory be taught.52 The government argued that this satisfied the
Establishment Clause because it was promoting academic freedom, an important secular
purpose.53 Nevertheless, the Supreme Court, while noting that the Court is deferential to the
government’s stated secular purpose, also noted that the secular purpose may not simply be a
sham.54 The Court held that this type of balancing actually did nothing to promote academic
46
The creationism being discussed is a science-based version. Supra n. 23, at 2572.
Supra n. 23, at 2572.
48
Rex R. Schultze, Evolution and Creation Science in Your School: "The Monkey Business Continues . . . .", 79 Neb. L.
Rev. 901, 904 (2000).
49
McLean v. Arkansas Bd. of Ed., 529 F. Supp. 1255, 1264 (E.D. Ark. 1982).
50
Id. at 1264.
51
Supra n. 21, at 763.
52
Supra n. 21 at 763.
53
Supra n. 21 at 763.
54
Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987).
47
freedom.55 Rather, this legislation would actually serve to narrow the science curriculum because
it was possible that neither theory would ever be taught in the classroom.56 Accordingly, this
type of balancing legislation is also unconstitutional in light of the Establishment Clause.
In 2004, a school board in Pennsylvania passed a resolution that required teachers to
explain to students that there are gaps in the theory of evolution, providing some of the missing
answers using the theory of Intelligent Design, among other theories.57In Kitzmiller v. Dover
Area School District, the court applied both the endorsement test and the Lemon test.58 The Court
found that teaching Intelligent Design amounts to the endorsement of one particular religion, as
it is simply another form of teach Biblical creationism.59 Consequently, under the endorsement
test, this legislation violates the Establishment Clause.
In sum, in the years since the Scopes Monkey Trial, courts have been reluctant to uphold
legislation that prohibits evolution or promotes creationism. Analyzing statutes and regulations
under the traditional Establishment Clause tests, courts have held that prohibitions on evolution,
the introduction of Intelligent Design, and laws that attempt to balance evolution and creation in
the classroom, cannot pass constitutional muster. Therefore, such legislation must be deemed
unconstitutional because of the First Amendment.
IV. Tennessee House Bill 368, Senate Bill 893
It is now necessary to return to Tennessee where the debate between creation and
evolution began in the court system in 1925. In April, 2012, legislation was enacted by
55
Id. at 586.
Supra n. 23, at 2575.
57
Kevin Trowel, Divided by Design: Kitzmiller v. Dover Area School District, Intelligent Design, and Civil Education,
95 Geo. L.J. 855, 859 (2007).
58
Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 712 (M.D. Pa. 2005).
59
Id. at 716.
56
Tennessee which allows public school teachers to explore the weaknesses in evolution.60
Specifically, the legislation attempts to “…create an environment…that encourages students to
explore scientific questions, learn about scientific evidence, develop critical thinking skills, and
respond appropriately and respectfully to differences of opinion about controversial issues.”61
Additionally, the legislation allows teachers to “to help students understand, analyze, critique,
and review in an objective manner the scientific strengths and scientific weaknesses of existing
scientific theories covered in the course being taught,” and nobody has the authority to prohibit
teachers from doing so.62 Furthermore, the legislation specifically states that “[t]his section only
protects the teaching of scientific information, and shall not be construed to promote any
religious or non-religious doctrine, promote discrimination for or against a particular set of
religious beliefs or non-beliefs, or promote discrimination for or against religion or nonreligion.”63 As such, the courts may soon be faced with determining the constitutionality of this
Tennessee legislation.
There are many commentators on both sides of the debate over this legislation.
Proponents argue that this law promotes true academic freedom.64 Though he allowed the
legislation to become law through a technicality that ensured its passage if he failed to sign the
legislation, Governor Haslam stated that he believes that the law does not “change the scientific
standards that are taught in our schools or the curriculum that is used by our teachers.”65 The law
simply allows for students to explore scientific alternatives to the school curriculum. On the
other hand, opponents of the bill argue that this backwards thinking brings science education
60
Deborah Zabarenko, Tennessee teacher law could boost creationism, climate denial, Chicago Tribune, 1 (April 11,
2012).
61
HB0368, http://www.capitol.tn.gov/Bills/107/Bill/HB0368.pdf
62
Supra n. 61.
63
Supra n. 61.
64
Supra n. 61, at 1.
65
Mackenzie Weinger, Creationism bill becomes Tenn. Law, Politico, 1 (2012).
back to the early 1920’s.66 They argue that this will allow unsound science to be introduced in to
the classroom, like creationism or the denial of climate change.67 Thus, the question becomes
whether or not this polarizing legislation passes constitutional muster.
First, simply because the legislation states that it is not endorsing any particular doctrines
or belief-systems, the law does not necessary conform to the Lemon test or the endorsement test.
While this language of the law is evidence towards congressional intent to create this legislation
for a secular purpose, the secular purpose cannot be a sham. Therefore, if the rest of the
legislation is deemed to endorse a particular religion or foster excessive government
entanglement with religion, the legislation would violate the Establishment Clause.
Consequently, the rest of the language of the legislation must also be analyzed using the
constitutional tests.68
The legislation at issue in Tennessee is similar to the legislation in Edwards where the
secular purpose was academic freedom. However, this legislation rectifies the issues the
Supreme Court found with the legislation in Edwards. The distinguishing characteristic between
the two pieces of legislation is that the Tennessee law does not remove evolution from the
classroom. At the same time, it does not mandate the teaching of an alternative theory of
evolution, like creationism. This legislation simply allows teachers to discuss alternative theories
if they are brought up by students in the classroom.69 Students are merely encouraged to explore
66
Supra n. 2, at 1.
Supra n. 60, at 1. Eugenie Scott, director for the National Center for Science Education, described the bill as “a
permission slip for schools to bring creationism, climate-change denial and other non-science into science
classrooms.” Elizabeth Flock, Law allows creationism to be taught in Tenn. public schools, Washington Post 1
(2012).
68
Note that the coercion test is not applicable in this case because determining curriculum does not constitute
government sponsorship of a religious exercise. Therefore, the tests to apply in this case are the Lemon test and
the endorsement test.
69
Supra n. 2, at 1.
67
scientific theories and question any weaknesses they perceive. Additionally, the stated secular
purpose of academic freedom is not a sham in this case because there is no prohibition on
evolution, no mandate to teach creationism, and it is the students raising the alternative theories,
not the educators. This law is not a ruse for teachers in Tennessee to preach Biblical creationism.
Moreover, unlike the legislation in Epperson, this particular legislation is religiously neutral
because it still requires teachers to follow a science curriculum that discusses evolution; the
legislation simply allows for the interjection of alternative theories if a student mentions such a
theory, religious in nature or not. Hence, this legislation has a legitimate secular purpose of
promoting academic freedom; any religious focus in the classroom is incidental, and
theoretically non-existent in a given school year.
As to the second prong of the Lemon test, the Tennessee law does not advance or inhibit
religion, so there is a neutral effect on society. Students are encouraged to explore and debate
alternative theories to evolution, meaning that they are free to reject any theory, and they are
permitted to voice their own opinions regarding any theory. Teachers themselves are not allowed
to raise alternative theories, but the state asks the teachers to explore theories raised by a
student.70 Again, this law is not a guise for allowing educators to teach Biblical doctrines.
Consequently, this particular law is neutral on its face, and it does not advance or inhibit a
particular religion.
Turning to the third prong of the Lemon test, the Tennessee law does not foster an
excessive government entanglement with religion. Once more, teachers are only required to
discuss alternative theories to evolution if one is raised by a student. Plus, the law specifically
70
Supra n. 2, at 1.
“protects the teaching of scientific information…” only, not non-scientifically based doctrines.71
Also, while it is not dispositive in showing the constitutionality of the legislation, the fact that the
language points out that the law is not promoting any particular doctrine aids in showing that
there is no excessive government entanglement with religion. So, this legislation also passes the
third part of the Lemon test. As a result, under the Lemon test, the Tennessee law is
constitutional.
Nevertheless, the Lemon test does not exhaust the issue because the court would also
have to analyze the legislation using the endorsement test.72 Similarly to the analysis under the
Lemon test, a court would be hard-pressed to find that the Tennessee law endorses religion. First,
the legislation specifically disclaims any endorsement. Second, this law protects the teaching of
scientific information, not religious or non-scientific information.73 Also, this statute does not
mandate the teaching of any religious doctrine, such as creationism, but merely allows for any
alternative theory to be discussed if a student brings it up in class.74 Any mention of a religious
doctrine like creationism in the classroom would only come at the request of a student, making it
incidental. The state intended to create a religiously neutral piece of legislation, and they actually
did so. As discussed above, the legislation’s true intent is not to teach students about creationism,
but to allow for discussion of scientific alternative theories. As such, the Tennessee legislation
does not violate the Establishment Clause when using the endorsement test.
In sum, this law should be upheld under the First Amendment using any constitutional
test.
71
Supra n. 60, at 1. In fact, Governor Haslam believes that the legislation is almost pointless because it does
nothing to change existing law. Supra n. 2, at 1.
72
It is important to note that the endorsement test often overlaps with the second prong of the Lemon test.
73
Supra n. 60, at 1.
74
For example, if a student wishes to discuss the “big bang” theory in regards to the creation of the earth, a
teacher would be asked to explore this theory. This particular theory is not a religious doctrine.
V. Conclusion
To conclude, case law has clearly defined the constitutional tests for analyzing
Establishment Clause cases. Since Scopes in the early 1900’s, courts have used these tests to
analyze legislation regarding the teaching of evolution and creation in public schools. For the
most part, courts have found legislation prohibiting a discussion of evolution or laws mandating
a discussion of creationism to be unconstitutional. However, the new law in Tennessee learned
from the language of these prior statutes and cured the constitutional violations by creating a
religiously neutral law with a secular purpose. As such, the Tennessee law that opens the door to
discussions of creation and intelligent design in public schools does not violate the Establishment
Clause, and if the law is adjudicated, courts should hold that it passes constitutional muster.
Hopefully this legislation can serve to unite the science community and the religious community
by eliminating the superficially drawn battle lines and allowing for an open and honest
discussion.