(These are pages from the plaintiffs' part of the transcript provided by Griff Ruby. These fill in part of the missing pages. A preliminary OCR pass has been done, and proofreading will occur as time becomes available. -- Wesley R. Elsberry)
IN THE UNITED STATES DISTRICT CWU~~ED
in ~ DISTRICT COURT
EASTERN DISTRICT OF iN~.EI~N DISTRICT ARI~A~SAS
REV. BILL McLEAN; CARL ~i CLERX
BISHOP KEN HICKS: By: ~zLJLUL~24~
Sandra Smith, CVR
- Official Court Reporter
United Stares District Court
Post Office Box 1540
Little Rock, Arkansas 72203
BEFORE THE HONORABLE WILLIAM R. OVERTON, UNITED STATES
DISTRICT JUDGE, LITTLE ROCK, ARKANSAS, DECEMBER 7-17, 1981, as
On Behalf of the plaintiffs:
Cearley, Gitchel, Mitchell & Roachell
1014 West Third Street
Little Rock, Arkansas 72203
Kaplan, Hollingsworth, Brewer & Bilheimer, P.A.
Suite 955 — Tower Building
Little Rock, Arkansas 72201
American Civil Liberties Union
132 West 43rd Street
New York, New York 10036
ANTHONY J. SIANO
Skadden, Arps, Slate, Meager & Flom
919 3rd Avenue
New York, New York 10022
On Behalf of the Defendants:
STEVE CLARK, Attorney General
Little Rock, Arkansas 72201
Page 1 — 239
Sandra Smith, CVR
Official Court Reporter
United States District Court
Post Office Box 1540
Little Rock, Arkansas 72203
1 VOLUME I INDEX
3 On Behalf of the Plaintiffs:
5 BISHOP KENNETH HICKS
6 Direct Examination .....by Mr. Kaplan......page 22
7 Cross Examination by Mr. Williams....page 32
8 BRUCE VAWTER
Direct Examination......by Mr. Siano page 36
Cross Examination by Mr. Campbell....page 50
ii Redirect Examination....by Mr. Siano page 55
12 GEORGE MARSDEN
13 Direct Examination by Mr. Siano page 58
14 Voir Dire•Examination...by Mr. Campbell....page 60
15 DirectExamination(contd) . .page 64
16 Cross Examination. by Mr. Campbell....page 91
17 Redirect Examination....by Mr. Siano.......page 98
18 DOROTHY NELKIN
19 Direct Examination by Mr. Crawford....page 102
20 Cross Examination by Mr. Williams....page 130
21 Langdon Gilkey
22 Direct Examination......by Mr. Siano.......page 172
23 Cross Examination by Mr. Campbell....page 207
24 Redirect Examination....by Mr. Siano.......page 238
1 VOLUME I—EXHIBIT INDEX
4 EXHIBIT OFFERED RECEIVED
6 Plaintiffs’ No. 29. .49 49
7 Plaintiffs’ No. 99....... . . . . . .103....... 103
8 Plaintiffs’ No. 83 114 114
g Plaintiffs’ No. 76 . . . . . .114 . 114
10 Plaintiffs’ No. 88 115 115
11 Plaintiffs’ No. 115 127 127
12 Plaintiffs’No. 1 171 171
13 Plaintiffs’ No. 90 .172 172
1 (December 7, 1981)
2 (9:30 a.m.)
3 THE COURT: Are the parties ready to proceed?
4 MR. CEARLEY: Plaintiffs are ready, your Honor.
5 MR. WILLIAMS: Defendants are ready, your Honor.
6 THE COURT: Mr. Cearley, do you want to make your
7 opening statement?
8 MR. CEARLEY: May it please the Court. Your Honor,
g Act 590 of 1981, which brings us here today, requires
10 teachers in public schools in Arkansas to give what the
~ Act terms “balanced treatment” to what the Act describes
12 as “creation—science” and “evolution—science” in all
13 lectures and library material and teaching materials in
14 public schools, and in any class or lecture that deals in
15 any way with the subject of origins of life, man, the
16 universe or the earth.
17 It is the plaintiffs’ position that this Act represents
18 an attempt by the Legislature to —— an unprecedented
19 attempt by the Legislature —— arrogate~ unto itself the
20 power and the authority to define what science is and to
21 force the teaching of basic religious beliefs in the guise
22 of science in the public classrooms of the state.
23 This Act constitutes a clear and dangerous breach in the
24 law of separation between church and state required by the
25 First Amendment to the Constitution.
MR. CEARLEY: (Contin~,1~, Twenty—three
2 individuals, organizations, teachers and religious leaders
3 are asking the Court today to strike down this law as a
‘~ violation of their religious freedom.
5 The issues presented by the law are many and complex,
6 but in spite of the tenor of public debate that has
7 surrounded this Controversy, I should like to make it
8 clear that the plaintiffs in this case do not challenge
9 anyone’s religious beliefs, nor the belief by any person
10 in the divine creation or in God, or any person’s belief
ii in Fundamentalist theology, nor do the plaintiffs intend
12 to attempt to prove the theory of evolution or any other
13 theory of the origins of man, life, the earth or the
is Plaintiffs do intend to prove that creation—science, as
16 it is described in Act 590, is not science; that it meets
17 none of the criteria of science, and that it is, instead,
18 religious appologetics; that it is an attempt by a
19 ectarian group to attempt to prove or justify belief in
20 ivine creation as set out in a literal reading of the
21 00k of Genesis.
22 Plaintiffs intend to prove that Act 590 violates the
23 ights of academic freedom of both students and teachers,
24 nd that its language is so vague that persons of ordinary
25 r common intelligence must necessarily guess at its
MR. CEARLEY: (Continuing) meaning. To a classroom 2 teacher, this means that if that teacher guesses wrong, he
~ could lose his job.
The First Amendment states that Congress shall make no
5 law respecting the establishment of religion. It is
6 applied to the states by the Fourteenth Amendment. And as
~ interpreted by the United States Supreme Court, state
8 action or an act such as Act 590 violates the First
9 Amendment if the action or the act has no secular purpose,
10 or if it fosters excessive government entanglement with
12 Failing any one of these tests violates the requirements
13 of the First Amendment.
14 The plaintiffs’ proof will go to establish that Act 590
15 violates each of these three tests.
16 We can first look to and present to the Court the Act’
17 itself and its legislative declaration of purpose. That
18 Act and the language in it shows on its face that it tends
19 to prefer a particular religious belief at the expense of
20 other religious beliefs.
21 The legislative his tory surrounding the drafting and
22 adoption of what was then Senate Bill 482 and is now Act
23 590 indicates that it is the product of a Fundamentalist
24 Christian organization that was dedicated to having acts
25 of this sort, policies and regulations, adopted by
MR. CEARLEY: (Continuing) legislatures and public 2 school districts to put religion in the classroom.
3 Paul Ellwanger, testimony will establish, was then the
acting head of a group called Citizens for Fairness in
~ Education. Through his efforts and those of others,
6 Senate Bill 482 was drafted in what was then a model act. ‘ It was forwarded to someone here in Arkansas and presented 8 to an evangelical fellowship of ministers, which then, as
project, sought to have it transmitted to a legislator
10 or introduction in the Arkansas Legislature.
11 Senator James Hoisted, who has identified himself as a
12 Dim—again Christian Fundamentalist, when asked about the.
13 ill, stated, “I believe in a creator and I believe that
14 od created this universe. I cannot separate the bill
15 rom that belief.”
16 He went on to say the bill probably does favor the
17 iewpoint of religious Fundamentalists.
18 We would show next, through the testimony of a
19 hilosopher of science, an expert in the area of biology
20 nd genetics, an expert in geology, one in paleontology
21 nd one in physics that creation—science is not science;
22 at it meets none of the criteria of science; that it is
23 ither explanatory, that is, it does not tend to explain
24 t a natural world, which is what concerns scientists and
25 w at constitutes the study of science; that it is not
MR. CEARLEY: (Continuing) testable; that it is
2 falsifiable, because it invokes the supernatural to
~ explain the phenomena; that it is not tenative; that it
is, rather, dogmatic and absolute and unyielding.
5 Testimony will establish that creationist scientists are
6 the only persons who use the word “creation—science”. It
~ does not exist otherwise in the world of science, and that
8 the self—described creationist scientists do not subscribe
9 to or utilize scientific methods.
10 Testimony will be elicited from Bishop Kenneth Hicks,
11 from Father Bruce Vawter, a Bible scholar, and from
12 Professor George Marsden, a Biblical historian, from
13 sociologist, Dorothy Nelkin, and from Doctor Landon
14 Gilkey, a theologian and philosopher, that
15 creation—science is, in fact, religion as it is defined;
16 that it reflects a lilteral interpretation of the Book of
17 Genesis and the account of the creation of the world and
18 man; that it is a product of sectarian belief, Biblical
19 inerrancy. That is, the only source of absolute truth is
20 the Bible, and the Bible is true as it is literally read
21 in its original autographs.
22 The proof will establish that the introduction of
23 creation—science •in the public school classrooms of this
24 state is and was the goal of a group or of several
25 Biblical literalist, Fundamentalist organizations and
1 MR. CEARLEY: (Continuing) individuals who engage
2 in the practice of religious apologetics. That is,
3 attempting to justify or support religious beliefs, in
~ this case, by recourse to pseudo—science.
5 Teachers and educators, as well as religious witnesses,
6 will testify that presenting creation—science in the
7 classroom has the clear effect of advancing a literal
8 interpretation of Genesis, which is not shared by all
9 religious people, nor shared by other non—religious
10 people, and that that literally constitutes a clear
11 advancement of religion for a sectarian group at the
12 expense of others.
13 Teachers and educators, science educators, in
14 particular, will testify that there is no way that
is creation—science, as described in the Act, can be taught
.16 in the classroom without reference to religious literature
17 r the Bible.
18 Teachers will testify that they don’t know of any other
19 ay to explain to students who inquire and who question a
20 resentation on creation—science without reference to the
21 ible or to other religious literature.
22 They will testify that the presentation of the two
23 odels of the origin of man as presented in Act 590 sets
24 p a false conflict between religion and science that can
25 nly be resolved in a classroom situation by students
1 MR. CEARLEY: (Continuing) taking sides, and that
2 this will inevitably cause division along religious lines
3 and require monitoring the classroom presentation in order
4 to assure that there are no Biblical references, there are
5 no religious references, a monitoring job which educators
6 and teachers will define as impossible.
7 Many of the State’s own expert witnesses will admit that
8 creation—science cannot be taught as science and that it
~ may not be science. Many of the State’s own witnesses
10 will state that they subscribe to the belief that the
~ Bible is literally true and that anything in science which
12 conflicts with the Bible must be wrong, and that
13 creation—science must be taught in that context.
14 With regard to the academic freedom right of students
is and teachers, testimony will establish that the State’s
16 power to determine curriculum and to define what should be
17 taught in public schools carries with it a correlative
18 responsibility on the part of the State to teach in the
ig classroom only that which has a valid educational purpose,
20 nd that this intrusion into the world of professional
21 ducators and education by the Legislature and by the
22 tate is without precedent and is damaging to legitimate
23 ducational goals.
24 It interferes with the right of teachers to teach and
25 tudents to learn, in that the teacher is deprived of his
1 MR. CEARLEY: (Continuing) opportunity and his
2 responsibility to select from among the body of knowledge
3 that constitutes his discipline that information which his
~ students can comprehend and utilize later in their
5 education and in their professional and personal lives.
6 Biology teachers will testify that the option not to
7 teach origins as presented in 590 is not an option at
8 all; that biology Courses as currently taught, which
9 accurately reflect the state of the art or the state of
10 the science, cannot be taught without the pervasive and
11 cohesive force of the theory of evolution, and that
12 because of that, teachers will be required to make some
13 presentation, of whatever kind, of creation—science in the
15 The same teachers will state, and science educators will
16 state, and scientists will state that the concept of
ii creation—science as it’s described in Act 590 is
18 meaningless unless it is placed within the framework of
i~ the belief in the literal account in the Book of Genesis;
20 that that is the only common thread tying the six elements
21 in the definition together.
22 Finally, teachers will testify that they simply do not
23 now what the term “balanced treatment” as it is presented
24 n the Act, means to them in a classroom situation; that
25 hey, whose very jobs may be on the line, are unable to
1 MR. CEARLEY: (Continuing) determine what
2 constitutes balanced treatment in the presentation of any
3 material with regard to origins.
The Act, it will be pointed out, is internally
5 inconsistent in that it seems to require balanced
6 treatment only when evolution—science is presented or
7 creation—science is presented, and, yet, on its face it
8 also requires balanced treatment in any course in which
9 the subject of origins is a part.
10 Religious liberty is among the most precious of those
it guaranteed by our Constitution and Bill of Rights, and
12 while no person in this lawsuit ascribes any but the
13 highest motives to those who sought passage of the Act and
14 those whose job it is to support and defend it, or whose
15 personal wish it is to support and defend it, it is clear
16 that the Act violates those principles of religious
17 freedom which form the foundation of our form of
18 government, and it is the duty of this Court to support
19 and defend our Constitution from any such attack.
20 Thank you.
21 THE COURT: Mr. Williams or Mr. Clark?
22 MR. WILLIAMS: Mr. Clark will present our opening
23 statement, your Honor.
24 MR. CLARK: May it please the Court. As has been
25 pointed out by counsel for the plaintiffs, this Court is
1 MR. CLARK: (continuing) presented with a very
2 complex case dealing with education, religion and science. The ultimate question being presented to this Court is
‘~ whether Act 590 is unconstitutional on its face.
5 Obviously, the nation has focused its attention on this
6 case. Yet it is not a matter of litigation involving
~ symbols between opposing philosophies, a replay of
8 previous litigation, or a situation which this Court is
~ being asked to decide the absolute origin of life, nor at
10 issue or on trial here are the philosophies of the
11 institutions or organizations, regardless of their
12 personal religious faiths.
13 It is a case in which the banter of semantics can be
14 both confusing and critical. Evidence as it will be
15 presented, however, can be adjudged by only one standard:
16 That of the law, the constitutionality of Act 590.
17 The State will prove that Act 590 does not establish
18 religion and that, in fact, this Act promotes a
19 legiltimate secular purpose, that of broadening a teaching
20 of origins from a one—model to a two—model approach.
21 The teaching of such a two—model approach in the public
22 schools advances educational purposes of assisting
23 students in their search for the truth.
24 Act 590, quite contrary to what the plaintiffs may
25 suggest, does not hinder the quest for knowledge, restrict
1 MR. CLARK: (Continuing) the freedom to learn or
2 restrain the freedom to teach. It tends to give the
3 student a broad overview of the subject of origins. Consistent with a Motion in Limine filed by the State
5 this morning, the State contends this case is not one of
6 whether creation—science or evolution—science is a
7 scientific theory. Rather, the issue is simply whether
8 balanced treatment of the scientific evidences of both
9 creation—science and evolution—science, without any
io reference to religious writings or instructions, violates
ii the Constitution of the United States.
12 The Arkansas Legislature did not find it necessary to
13 decide what constitutes scientific theory. Yet, should
14 this Court disagree with the motion filed by the State,
15 the State will prove that creation—science is, at least,
16 as scientific as evolution—science; that neither
17 creation—science nor evolution—science qualify as a
18 science under a strict definition; that these two models,
19 along with a combination of the two, are the only
20 scientific explanations of the origin of the world, life
21 and man.
22 The State will further prove that creation—science and
23 evolution—science are logical alternatives. Moreover, the
24 State will pesent evidence to the effect that Act 590
25 neither advances nor inhibits religion. In fact, we will
1 MR. CLARK: (Continuing) prove that
2 creation—science is, at least, as non—religious as
4 The State’s witnesses will testify that creation—science
5 can be taught in a completely non—religious, secular
6 manner; that the words or concepts of a creator or
7 creation—science are not inherently religious doctrines,
8 nor do they necessarily encompass the concept of the
io In addition, that evolution—science is consistent with
~ some religion in the same way that creation—science is
12 consistent with others. As evolution—science presupposes
13 no creator, to this same extent creation—science may
14 •presuppose such a creator. That presupposition of a
15 creator and creation—science need not be given substantial
16 evidence, just as the presupposition of no creator need be
17 given any substantial evidence in the evolution science.
18 The State will provide testimony to the fact that the
i~ creation—science model requires a religious concept of a
20 creation. It is simply a teaching which is consistent
21 with some religions and not a teaching in fact of religion.
22 To the extent that some creation—science materials
23 presently published utilize religious doctrines or
24 writings, Act 590 specifically prohibits their use. And
25 that in the use of the words “concept of a creator”,
MR CLARK: (Continuing) neither do we advance nor ~ do we prohibit religion because both scientific and
~ non—scientific writings used in our public education
‘~ system use the words “creator” and “creation”. Nor would
5 we in any way under this Act promote to the advantage of
6 any religion any incidental effect of the teaching of
7 scientific evidences of origin.
8 As plaintiffs’ counsel may have suggested, we would
9 contend to this Court and prove through evidence that Act
10 590 does not create an excessive entanglement between the
it tate and religion because this Act does specifically
12 rohibit any religious instruction and only the scientific
13 vidences and inferences therefrom from the two models can
14 e taught. And that there would be no entanglement of
15 eligion because creation-science, as I have stated, is,
16 t least, as scientific as evolution—science.
17 Moreover, the mere coincidence of a governmental program
18 th some religious beliefs does not entangle the State
19 ith religion.
20 Although the State recognizes the plaintiffs’ contention
21 hat the legislative p.rocess by which Act 590 was adopted
22 as inadequate, the State will prove that that process
23 dequately supports a legitimate secular purpose, and the
24 anner and mode of passage of this legislation is
25 rrelevant to its constitutionality.
MR. CLARK: (Continuing) Further, that any
2 post—passage statement or testimony of any one legislator
is far less persuasive than the actual intent embodied in the Act itself.
Plaintiffs have contended that Act 590 abridges academic
6 freedom. The State will present evidence to the contrary;
‘ that, in fact, Act 590 furthers and advances academic 8 freedom.
The proof will show that without this Act, many teachers
10 ill not teach the scientific evidence which supports the
~1 heory of creation—science. Some teachers will not teach
12 reation—science without protection of the Act for fear of
13 eing punished or, in fact, fired. Indeed, at least one
14 eacher in another state has been fired for teaching a
15 reation—science model.
16 Other teachers do not presently teach creation—science
17 ecause of the litigation metality which has developed
18 round the teaching or origins. Theories of origin are
19 ontroversial, and no matter what one theory one scientist
20 ersonally believes is more correct, there are other
21 cientists who believe, another theory may better fit the
23 In such a situation, academic freedom of the teachers to
24 ach and students to learn is best served by teaching
25 th theories.
1 MR. CLARK: (Continuing) Academic freedom is not a
2 constitutionally protected right which limits State’s
3 action, but is, rather, an interest which must be weighed
4 against legitimate State education interests.
Act 590 promotes the interests of both student and
6 teacher to inquire, to study and to evaluate, to gain new
7 maturity and new understanding.
8 Finally, your Honor, the State will demonstrate that 1~ct
g 590 is not unconstitutionally vague. The standard for 10 vagueness is whether the statute is set out in terms that ~ an ordinary person exercising ordinary common sense can
12 sufficiently understand and comply with the statute. Act 590 will be implemented by professionals, teachers
14 capable of assimilating difficult material and then
15 explaining it to their students in a simplified form.
16 Professional educators will have no difficulty in giving
17 balanced treatment within the meaning of that Act. It
18 will allow teachers to use their training and professional
19 judgment to formulate their own treatment of both the
20 creation—science and the evolution—science models without
21 chaining them to any rigid standards or guidelines with
22 which they might not feel comfortable.
23 Act 590 is not unconstitutionally vague. The State will
24 demonstrate that the Act specifically sets forth what
25 creation—science includes and what evolution—science
MR. CLARK: (Continuing) includes, and it
2 specifically prohibits the use of religion; that there are
3 no penalties or sanctions provided for the failure to give
‘~ balanced treatment, and that the term “balanced treatment”
5 leaves to the professionals, the discretion of the
6 teacher, as to how to balance that treatment, equal time
7 and equal dignity, proportional time based on evidence
8 available, and sufficient time for students to understand
9 both concepts.
In summary, your Honor, the State will prove that this
ii case is not a trial of religion; it is a trial about
12 science. We have suggested that it is not proper for this
13 Court to •be called upon to define in absolutes what is
14 science, for the experts here will disagree and differ on
~ that question, but that the burden that is presented to
16 the plaintiff is one that is substantial. That is to
17 prove that Act 590, as challenged on its face, is
18 unconstitutional and not a misapplication
19 We submit and contend that the State can prove that
20 there is evidence, and if there is any evidence that
21 supports the creation—science model, explanation of
22 origins, then Act 590 must be adjudged to be
24 THE COURT: Thank you, Mr. Clark.
THE COURT: (Continuing) Mr. Cearley, apparently 2
there is some problem about some subpoenaes for
witnesses. Judge Byrd came with some witnesses who were
subpoenaed for depositions, and they don’t understand
exactly what to do about those subpoenaes. Mr. Hunt, Mrs.
Miller and Mr. Thomas.
JUDGE CONLEY BYRD: And Mr. Blount.
THE COURT: Do you intend to use those witnesses?
MR. CEARLEY: It was our intention to depose those
witnesses, and subpoenaes were issued last week and served
They contacted cousel, Kathy Woods, who called my
office. By agreement, their time of appearance was
extended. Miss Woods then left town. Since court started
this morning, subpoenaes to appear at court were issued.
We will either offer their testimony through deposition
or here in the courtroom, but we would prefer the
opportunity to depose them before taking the Court’s
time. It is a very narrow issue they will be called upon
to testify to.
THE COURT: They were subpoenaed, apparently, for 22
this courtroom this morning for a deposition. You are
going to have a little trouble taking it in here.
MR. CEARLEY: Your Honor, I thought I had to 25
require their appearance before the Court this morning in
1 MR. CEARLEY: (Continuing) order to get a
2 continuing obligation to appear when called.
3 THE COURT: What do you propose to do about it?
4 MR. CEARLEY: I simply would like to arrange their
s depositions sometime after normal court hours, either
6 today, tomorrow, or the next day.
7 JUDGE BYRD: Your Honor, they will be ready at
8 11:00 a.m., 1:00 p.m., 1:00 p.m. tomorrow.
g MR. CEARLEY: Eleven o’clock will be fine, your
11 THE COURT: Where do you want to take them?
12 MR. CEARLEY: We can take them in my office.
13 THE COURT: The only difficulty I see about taking
14 them while Court is in session is that I am sure the
15 defendants’ attorneys would like to be there. It occurs
16 to me it would be better to take them after court hours
18 MR. WILLIAMS: Your Honor, that would be much
19 better for us. Indeed, with the exception of a few expert
20 witnesses which we are still going to schedule discovery,
21 I thought discovery was closed at the beginning of trial.
22 But if the Court wants to allow them to go ahead and
23 continue discovery during trial, and so orders that, we
24 will certainly, to the extent we can be there—— We can’t
25 do it very reasonably during court hours.
THE COURT: What sort of subject are they going to 2 testify about?
3 MR. CEARLEY: Your Honor, each of these persons, it
4 is my understanding, was involved with transmitting the
s model act from Mr. Ellwanger to Mr. Hoisted through an
6 evangelical group of ministers here in Little Rock. That
7 is the purpose of inquiring of them. That would be the
8 only purpose in their testimony.
9 They were subpoenaed for deposition prior to trial and
10 because of circumstances beyond my control, no depositions
ii were taken.
12 JUDGE BYRD: And the witnesses’ control. They got
13 them about an hour before to bring records.
14 What we think it is, your Honor, is abuse of process.
is These witnesses know nothing, obviously, except they
16 contacted their legislator. I think we can stipulate to
17 the facts.
18 THE COURT: I think it would be best if you all
19 meet during the lunch hour and see if you can make some
20 arrangements to take their depositions when court is not
21 in session.
22 JUDGE BYRD: Can I turn my witnesses loose?
23 THE COURT: Well, you can just make some
24 arrangements to have them available. Don’t let them get
25 outside the subpoena.
1 MR. CEARLEY: Your Honor, I might add, we have
2 proposed to ofer Senator Hoisted’s deposition to the Court
~ rather than calling him as a witness. He is under
~ subpoena and present also. This testimony is only
5 necesary because we want to put Senator Hoisted on rather
6 than ofer his deposition. It is for this limited
~ purpose. We will be happy to arrange the time to
8 accommodate the Attorney General.
9 THE COURT: Okay, sir. You can work that out during
10 the noon hour.
11 The Marshal’s service has asked me to make this
12 announcement. They want to keep traffic in and out of the
13 courtroom while court is in session to a minimum for
14 obvious reasons. So, if you leave during the course of’
is trial while Court is in session, you cannot get back in
16 until it reconvenes. So, keep that in mind.
17 Mr. Cearley, are you ready to call your first witness?
19 KENNETH W. HICKS,
20 called in behalf of the plaintiffs herein, after having
21 been first duly sworn or affirmed, was examined and
22 testifed as follows:
23 DIRECT EXAMINATION
24 BY MR. KAPLAN:
25 ~ Tell us your name, please.
A Kenneth W. Hicks.
2 ~ What is your current position?
3 A My current position is Bishop of’ United Methodist
‘~ Church for the area of the state of Arkansas.
5 Q How long have you held that position?
6 A Since September 1, 1976.
7 Q How many churches are in the Methodist denomination
8 in Arkansas, at least, within your area?
9 A Approximately eight hundred United Methodist
10 churches in the state of Arkansas.
11 Q And the number of’ members in the Methodist churches
12 in Arkansas?
13 A Approximately one hundred seventy—eight thousand.
14 Q Can you tell me, quite briefly, what your duties and
15 responsibilities are as Bishop of the Methodist Church in
16 the Arkansas area?
17 A The responsibilities of the Bishop is to be a
18 general superintendent of the church with regard to te
19 area to which one is assigned —— in my case, Arkansas.
20 It has to do with general oversight of those
21 congregations, what they are doing. It has to do with the
22 missional thrust of programs that we engage in, in a
23 connectional way as United Methodist Churches in the state.
24 It has to do with the primary function of making
25 appointments of ministers to those churches and to those
1 A (Continuing) charges. That is a very essential
2 responsibility of mine.
3 In addition to responsibilities of that nature, there
4 are responsibilities that have to do with denominational
s responsibilities as the superintendent of the church at
So, I have responsibilities within the state of’ Arkansas
8 and beyond, as well, in behalf’ of’ my denomination.
9 Q If you can, briefly tell me a little bit about your
io educational background beginning in college and going
11 through the highest degree you attained.
12 A I was raised in southeast Kansas, graduated from
13 Iowa High School in southeast Kansas. I attended and
14 graduated from a small denominational school at York,
~ Nebraska, which at that time was a college of’ the United
16 Brethren denomination. I graduated from that school with
17 an A.B. degree.
18 Following that experience, I entered graduate theology
19 ~school at the ha School of Theology at Denver, Colorado,
20 on the Denver University campus, which is one of the
21 seminaries of our denomination.
22 Q Bishop, when did you first hear of’ the legislation
23 which ultimately became Act 590 and which is cha11~nged
25 A That is difficult for me to pinpoint, but it was
A (Continuing): within a matter of a few weeks prior 2 to its passing, perhaps two, three weeks prior to its
3 coming to a decision.
4 Q Since it has been passed, have you had an
s opportunity to look at the bill and to review it, read it,
6 on several occasions? A Yes, I have.
8 Q Before we discuss the bill itself, can you tell me
9 if the United Methodist Church has a position with regard io to separation of church and state?
A The United Methodist Church by its tradition and
12 heritage has always had a position that the principle of
13 separation between church and state was very important and
14 very crucial, both in the upholding and support of
15 appropriate religious freedom, as well as freedom of
17 Q Bishop, can you tell us how you formulated or how it
18 was that you formulated your initial opposition to this
i9 bill? What about this bill troubled you to the extent
20 that you became a plaintiff in the case?
21 A Yes, I will be glad to. My first perusal and
22 consideration of what was going on was the immediate
23 conviction that this seems to be or appears to be an
24 intrusion upon the First Amendment and a mix of church and
25 state to an unallowable extent.
1 A (Continuing): My own religious background and
2 religious heritage is such that that would be very crucial
3 to me, and it would be crucial to the life of my
s So, essentially, the outset kind of awareness did have 6 to do with this being an unconstitutional type thing that i transgresses the intent and meaning of the First Amendment.
8 Q What is it—— Now, let’s hone in specifically on the
g bill and what it is in the bill that immediately brought
10 this conclusion, at least, to your attention?
A All right. In the first place, the definition of’
12 creation—science as set forth by this bill, it became
13 apparent to me that two or three things were evident.
14 One is that, first of’ all, this represents six points
i~ that really define the limits of scientific inquiry; that
16 whatever scientific inquiry would be engaged in would have
17 to fall within the already preconceived outcomes as
18 prescribed in the definition of creation—science.
19 The second observation that I made was that awareness
20 that, as nearly as I could tell, without exception these
21 six definitions of creation—science are reflections of a
22 literalistic view of the creation accounts in the Book of
24 Therefore, that began to give me a clue as to what might
25 be the intent of this Act. I have to admit that I coupled
A (Continuing): that along with a general perusal or
2 consideration of the kinds of persons, the orientation of
3 persons, who, not only in Arkansas but in other places as
4 well, seemed to be very interested in getting this into
s place, which indicated to me that the creation—science
6 dimension of this was coming, indeed, from minds and
i perspectives that adhered to a literalistic view of the
8 creation account in the Book of Genesis.
g Another thing that troubled me and still does, with 10 great emotional itensity I might add, has to do with the
11 reference in two places to such terms as, and I quote from
12 Section 6 and also from Section 7, such phrases as
13 “preventing establishment of Theologically Liberal,
14 Humanist, Nontheist, or Atheist religions.”
This is in the Legislative Declaration of Purpose. Not
16 only is that mentioned once, it is mentioned a second time
17 where those kinds of phrases, those kinds of words, are
18 used, in terms of “Theistic religion, Theological
ig Liberalism, Humanism, Nontheistic religions, and Atheism.”
20 This immediately does several things to one who has some
21 stake in, not only free religious expression, but in
22 freedom of expression in general.
23 For one, I noted that these are terms that are used here
24 as labels. They are not terms of inquiry, but they ae
25 simply undefined labels. They have no basis of definition
A (Continuing) and yet in both of the references 2 where these kinds of words are used, there seems to be
3 inherent an element of alarm on the part of the Act that
4 these feelings and these positions shall be constrained in
5 some way.
6 Another thing, then, that emerged out of that
7 consideration for me was the self—attained awareness that
8 obviously the intent of the Act is not the free inquiry of
9 science, but rather, the intent of the Act seems to have
10 to do with terminology, with words, with concepts that are
i~ over in another discipline.
12 MR. WILLIAMS: Your Honor, I will have to object to
13 his testimony at this point if he is going to delve into
14 the area of legislative itent. I don’t think this witness
15 who is not a lawyer or a legislator is competent to
16 testify what legislative intent is.
17 To the extent the plaintiffs want to say why they feel
18 outraged by this and brought this action, I think that is
19 appropriate. But when they start making a conclusion as
20 to the intent of the legislature, I think it is beyond the
21 purview and the competence of this witness.
22 THE COURT: I think he is only talking about what
23 the language means to him. I will overrule the objection.
24 THE WITNESS: May I proceed?
25 MR. KAPLAN: Yes.
1 A These words that are used in a negative in this
2 bill, “Theologically Liberal”, “Humanist”, “nontheist”,
3 they are used in a negative way as if they are words that
4 carry harmful results, harmful outcomes, whereas, on the
S other hand, these are words that have been used
6 historically in another context to advance, through
7 respectable means of discussion, the advancement of ideas,
8 the proposing of ideas, philosophical and theological.
9 Then, this totally presents itself to me——I am speaking,
10 I admit, quite subjectively at this point——to say that ii here is an effort that mentions two disciplines. There is
12 obviously a mix of theology and philosophy on the one
13 hand; there is a presentation of scientific concern on the
14 other hand. It is obvious that a discipline of theology
~ and philosophy is to be used to circumscribe the limit and
16 the nature of scientific inquiry on the other hand.
17 Now, for that to be done, for those words, those labels
18 that I have said, to be used in an authoritative way
19 further substantiated my feeling that this is a
20 transgresion of the First Amendment.
21 Q Bishop, you, as a bishop of the Methodist Church,
22 are not yourself opposed to the Genesis account or to
23 Bible teachings, are you?
24 A No, sir. They mean a great deal in my life.
25 Q Is there anything in this bill that is inconsistent
Q (Continuing) with your views of religion and your
2 views of theologic discussion?
3 A Yes, sir. From my view of theological discussion, I
4 do hold very dearly and very intently to the opening words
S of the Book of Genesis: “In the beginning, God
6 created...” From that point on, I believe it belittles
7 both God and the process of theological and educational
8 inquiry to try to circumscribe what, how and what God had
9 in mind in doing that, the way in which he did it.
10 I believe it is very clear that the creation documents ~ in the Book of Genesis are put there for a purpose that
12 has to do with the why of creation, and that to the extent
13 that those documents engage in some reiteration of how it
14 took place, it is obviously in the view of, I believe,
15 mainline Biblical scholars of our time, that those are
16 pegs upon which the greater ideas, the greater principles
17 or the greater desires of’ the Book of Genesis had in mind,
18 namely, to indicate to us what the responsibility of the
19 human being is and what the arena is within which the
20 human being should be expected to work, and the fact that
21 in the creative process there is an outgrowth, that there
22 is an intention, that there is an order, but for us to
23 circumscribe that, for us to define that in our pursuit of
24 what that order might be, I believe is to do both religion
25 and science an injustice.
1 Q Will you please tell us, in your view, why it is,
2 based on your understanding, your interpretation of the
3 Bible, as well as the fundamentalist approach, why the
4 creation—science as it is presented in Act 590 cannot be
5 taught without intruding religion into the public school
7 A This is one of the elements of ambiguity for me that
8 I have really not been able to penetrate to my
9 satisfaction, at least to the satisfaction of making any
10 real sense out of this Act.
ii It seems to me that in order for what is being proposed
12 here to really be put into place that there would have to
13 be a retooling of the instruction process; that, indeed,
14 the State is intruding upon the process of discovering
i~ truth, pursuing science, through the use of religious
16 orientation, and, thus, the burden would be upon the
17 State, it seems to me, to retrain teachers to be prepared
18 to use whatever tools it is that would be needed to
19 advance creation—science.
20 I believe it would be incumbent upon the State to define
21 the limits as to when it is no longer scientific and it
22 becomes religious. I believe it is incumbent upon the
23 State to give definitions to the rationale in the
24 statement of purpose that would justify the kind of
25 treatment of these terms that represent facets of life
1 A (Continuing) that are to be resisted and rejected.
2 This is an area of’ State involvement that is not allowable
3 under our Constitution, nor should it be.
4 MR. KAPLAN: Thank you very much, Bishop.
5 You may inquire.
6 CROSS EXAMINATION
7 BY MR. WILLIAMS:
8 Q Mr. Hicks, you stated, I believe, that you have read
9 Act 590, is that correct?
10 A Yes.
11 Q What does the phrase “prohibition against religious
12 instruction” mean to you?
13 A Prohibition against religious instruction would
14 mean, to me, that religion is not to be in the instruction
16 Q Do you have an opinion on whether the presentation
17 of divergent views can aid in the learning process?
18 A I believe that the presentation of’ divergent views
i~ can be an aid within the learning process provided certain
20 things happen.
21 Q So, you, as a general proposition, do favor
22 including of divergent views in the learning process?
23 A In the learning process, the broad learning process,
24 yes, sir.
25 Q On your direct testimony you stated that’
U Q (Continuing) Creation—Science as defined in Act
2 590, the six points included in that definition somehow
3 define the limits of scientific inquiry, is that correct,
4 as you understand it?
5 A As I understand it. That was my conclusion, yes,
7 Q Is there anything that you can point to that says
8 that this and only this is Creation—Science? In other g words, that this is an all—inclusive definition?
10 A The assumption that I would make on reading the
11 definition that is in the Act is that it was intended by
12 the Act itself that this would, indeed, be basically the
13 elements that would be included in Creation—Science.
14 Q That would be an assumption, you would agree; would
15 that be correct?
16 A Yes, sir.
17 Q When you talk about the language in Act 590 which
18 says that this prevents the establishment of Theologically
19 Liberal, Atheist, Nontheist religions, and that language,
20 you don’t favor their establishment, do you?
21 A I can’t say to that because I don’t know what they
22 mean in the context of this Act.
23 Q Do you favor the establishment of any religion in
24 our schools by the State?
25 A No, sir.
Q You are not a lawyer, as to know what those terms
2 might mean to a lawyer or legislator?
3 A That’s right.
4 Q I can appreciate your comment that creation has
~ meant a great deal to you. You didn’t give the dates, but
6 when did you first enter a seminary?
7 A I entered seminary in 1948.
8 Q How many years have you been in the active ministry?
A Well, from 1948 to 1981. Somebody would have to
10 figure that up for me. From ‘48 until the present time.
11 Q About thirty—three years?
12 A Yes, sir.
13 Q In seminary did you sudy courses on Genesis yourself?
14 A Yes, sir.
15 Q Did you study creation in seminary?
16 A We studied creation within the context of’ religion.
17 Q Subsequent to that time, have you engaged in any
18 independent study or reading on creation and Genesis
20 A Oh, yes.
21 Q Have you given sermons on creation and on Genesis?
22 A Yes, yes, sir.
23 Q And each time that you used the term “creation” in
24 those thirty—three years, it had a religious connotation,
I Q (Continuing) is that correct?
2 A That is not a problem for me.
3 Q But in trying to accept——
4 A Yes, sir, I would be inclined to accept the premise
s that “creator” does have a meaning that, for my purpose,
6 is within the context of’ my professional life, as related
7 to a supernatural being.
8 Q So, if there is scientific evidence which supports,
g scientific evidence now which supports creation, that
10 because of your own professional and academic training,
i~ that you might have some problem in dealing with that?
12 A I most certainly would, yes, sir.
13 MR. WILLIAMS: No further questions.
14 THE COURT: May this witness be excused?
15 MR. KAPLAN: Yes, your Honor.
16 (Witness excused)
17 MR. CEARLEY: Your Honor, Bruce Vawter is the next
18 witness for the plaintiffs, and Mr. Siano will handle his
19 •direct examination.
2 BRUCE VAWTER,
3 called in behalf of the plaintiffs herein, after having
~ been first duly sworn or affirmed, was examined and
5 testified as follows:
6 DIRECT EXAMINATION
7 BY MR. SIANO:
8 Q Would you state your name for the record, sir?
9 A Bruce Vawter.
10 Q What is your address?
A 2233 North Kenmore. Chicago, Illinois.
12 Q What is your present occupation and present
14 A I am the chairman of the Department of Religious
15 Studies and professor in the Department of Religious
16 Studies at DePaul University in Chicago.
17 Q Are you a member of any religious organization?
18 A I belong to the religious community known as the
19 Congregation of the Mission, or more familiarly known in
20 the United States as vincention fathers. I am a Roman
21 Catholic priest.
22 Q Father Vawter, could you describe for me briefly the
23 academic duties that you have at DePaul University?
24 A Well, they are both administrative and academic. I
25 try to keep friendly relations between the administration of’ the university and the faculty. And I am charged with