McLean v. Arkansas Decision - Page 2
The approach to teaching "creation science" and "evolution-science" found in Act 590 is identical to the two-model approach espoused by the Institute for Creation Research and is taken almost verbatim from ICR writings. It is an extension of Fundamentalists' view that one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution.
The two model approach of the creationists is simply a contrived dualism (22) which has not scientific factual basis or legitimate educational purpose. It assumes only two explanations for the origins of life and existence of man, plants and animals: it was either the work of a creator or it was not. Application of these two models, according to creationists, and the defendants, dictates that all scientific evidence which fails to support the theory of evolution is necessarily scientific evidence in support of creationism and is, therefore, creation science "evidence" in support of Section 4(a).
The emphasis on origins as an aspect of the theory of evolution is peculiar to the creationist literature. Although the subject of origins of life is within the province of biology, the scientific community does not consider origins of life a part of evolutionary theory. The theory of evolution assumes the existence of life and is directed to an explanation of how life evolved. Evolution does not presuppose the absence of a creator or God and the plain inference conveyed by Section 4 is erroneous (23).
As a statement of the theory of evolution, Section 4(b) is simply a hodgepodge of limited assertions, many of which are factually inaccurate.
For example, although 4(b)(2) asserts, as a tenet of evolutionary theory, "sufficiency of mutation and natural selection in bringing about development of present living kinds from simple earlier kinds," Drs. Ayala and Gould both stated that biologists know that these two processes do not account for all significant evolutionary change. The testified to such phenomena as recombination, the founder effect, genetic drift and the theory of punctuated equilibrium, which are believed to play important evolutionary roles. Section 4(b) omits any reference to these. Moreover, 4(b) utilizes the term "kinds" which all scientists have said is not a word of science and has no fixed meaning. Additionally, the Act presents both evolution and creation science as "package deals." Thus, evidence critical to some aspect of what the creationists define as evolution is taken as support for a theory which includes a worldwide flood and a relatively young earth (24).
In addition to the fallacious pedagogy of the two model approach, Section 4(a) lacks legitimate educational value because "creation-science" as defined in that section is simply not science. Several witnesses suggested definitions of science. A descriptive definition was said to be that science is what is "accepted by the scientific community" and is "what scientists do." The obvious implication of this description is that, in a free society, knowledge does not require the imprimatur of legislation in order to become science.
More precisely, the essential characteristics of science are:
(1) It is guided by natural law;
(2) It has to be explanatory by reference to nature law;
(3) It is testable against the empirical world;
(4) Its conclusions are tentative, i.e. are not necessarily the final word; and
(5) Its is falsifiable. (Ruse and other science witnesses).
Creation science as described in Section 4(a) fails to meet these essential characteristics. First, the section revolves around 4(a)(1) which asserts a sudden creation "from nothing." Such a concept is not science because it depends upon a supernatural intervention which is not guided by natural law. It is not explanatory by reference to natural law, is not testable and is not falsifiable (25).
If the unifying idea of supernatural creation by God is removed from Section 4, the remaining parts of the section explain nothing and are meaningless assertions.
Section 4(a)(2), relating to the "insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism," is an incomplete negative generalization directed at the theory of evolution.
Section 4(a)(3) which describes "changes only within fixed limits of originally created kinds of plants and animals" fails to conform to the essential characteristics of science for several reasons. First, there is no scientific definition of "kinds" and none of the witnesses was able to point to any scientific authority which recognized the term or knew how many "kinds" existed. One defense witness suggested there may may be 100 to 10,000 different "kinds." Another believes there were "about 10,000, give or take a few thousand." Second, the assertion appears to be an effort to establish outer limits of changes within species. There is no scientific explanation for these limits which is guided by natural law and the limitations, whatever they are, cannot be explained by natural law.
The statement in 4(a)(4) of "separate ancestry of man and apes" is a bald assertion. It explains nothing and refers to no scientific fact or theory (26).
Section 4(a)(5) refers to "explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood." This assertion completely fails as science. The Act is referring to the Noachian flood described in the Book of Genesis (27). The creationist writers concede that any kind of Genesis Flood depends upon supernatural intervention. A worldwide flood as an explanation of the world's geology is not the product of natural law, nor can its occurrence be explained by natural law.
Section 4(a)(6) equally fails to meet the standards of science. "Relatively recent inception" has no scientific meaning. It can only be given in reference to creationist writings which place the age at between 6,000 and 20,000 years because of the genealogy of the Old Testament. See, e.g., Px 78, Gish (6,000 to 10,000); Px 87, Segraves(6,000 to 20,000). Such a reasoning process is not the product of natural law; not explainable by natural law; nor is it tentative.
Creation science as defined in Section 4(a), not only fails to follow the canons of dealing with scientific theory, it also fails to fit the more general descriptions of "what scientists think" and "what scientists do." The scientific community consists of individuals and groups, nationally and internationally, who work independently in such varied fields as biology, paleontology, geology, and astronomy. Their work is published and subject to review and testing by their peers. The journals for publication are both numerous and varied. There is, however, not one recognized scientific journal which has published an article espousing the creation science theory described in Section 4(a). Some of the State's witnesses suggested that the scientific community was "close-minded" on the subject of creationism and that explained the lack of acceptance of the creation science arguments. Yet no witness produced a scientific article for which publication has been refused. Perhaps some members of the scientific community are resistant to new ideas. It is, however, inconceivable that such a loose knit group of independent thinkers in all the varied fields of science could, or would, so effectively censor new scientific thought.
The creationists have difficulty maintaining among their ranks consistency in the claim that creationism is science. The author of Act 590, Ellwanger, said that neither evolution or creationism was science. He thinks that both are religious. Duane Gish recently responded to an article in Discover critical of creationism by stating:
Stephen Jay Gould states that creationists claim creation is a scientific theory. This is a false accusation. Creationists have repeatedly stated that neither creation nor evolution is a scientific theory (and each is equally religious). (Gish, letter to editor of Discover, July, 1981, App. 30 to Plaintiffs' Pretrial Brief)
The methodology employed by creationists is another factor which is indicative that their work is not science. A scientific theory must be tentative and always subject to revision or abandonment in light of facts that are inconsistent with, or falsify, the theory. A theory that is by its own terms dogmatic, absolutist, and never subject to revision is not a scientific theory.
The creationists' methods do not take data, weigh it against the opposing scientific data, and thereafter reach the conclusions stated in Section 4(a). Instead, they take the literal wording of the Book of Genesis and attempt to find scientific support for it. The method is best explained in the language of Morris in his book (Px 31) Studies in The Bible and Science at page 114:
... it is ... quite impossible to determine anything about Creation through a study of present processes, because present processes are not creative in character. If man wished to know anything about Creation (the time of Creation, the duration of Creation, the order of Creation, the methods of Creation, or anything else) his sole source of true information is that of divine revelation. God was there when it happened. We were not there ... Therefore, we are completely limited to what God has seen fit to tell us, and this information is in His written Word. This is our textbook on the science of Creation!
The Creation Research Society employs the same unscientific approach to the issue of creationism. Its applicants for membership must subscribe to the belief that the Book of Genesis is "historically and scientifically true in all of the original autographs" (28). The Court would never criticize or discredit any person's testimony based on his or her religious beliefs. While anybody is free to approach a scientific inquiry in any fashion they choose, they cannot properly describe the methodology as scientific, if they start with the conclusion and refuse to change it regardless of the evidence developed during the course of the investigation.
In efforts to establish "evidence" in support of creation science, the defendants relied upon the same false premise as the two model approach contained in Section 4, i.e., all evidence which criticized evolutionary theory was proof in support of creation science. For example, the defendants established that the mathematical probability of a chance chemical combination resulting in life from non-life is as remote that such an occurrence is almost beyond imagination. Those mathematical facts, the defendants argue, are scientific evidences that life was the product of a creator. While the statistical figures may be impressive evidence against the theory of chance chemical combinations as an explanation of origins, it requires a leap of faith to interpret those figures so as to support a complex doctrine which includes a sudden creation from nothing, a worldwide flood, separate ancestry of man and apes, and a young earth.
The defendants' argument would be more persuasive if, in fact, there were only two theories or idea about the origins of life and the world. That there are a number of theories was acknowledge by the State's witnesses, Dr. Wickramasinghe and Dr. Geisler. Dr. Wickramasinghe testified at length in support of a theory that life on earth was "seeded" by comets which delivered genetic material and perhaps organisms to the earth's surface from interstellar dust far outside the solar system. The "seeding" theory further hypothesizes that the earth remains under the continuing influence of genetic material from space which continues to affect life. While Wickramasinghe's theory (29) about the origins of life on earth has not received general acceptance within the scientific community, he has, at least, used scientific methodology to produce a theory of origins which meets the essential characteristics of science.
The Court is at a loss to understand why Dr. Wickramasinghe was called in behalf of the defendants. Perhaps it was because he was generally critical of the theory of evolution and the scientific community, a tactic consistent with the strategy of the defense. Unfortunately for the defense, he demonstrated that the simplistic approach of the two model analysis of the origins of life is false. Furthermore, he corroborated the plaintiffs' witnesses by concluding that "no rational scientist" would believe the earth's geology could be explained by reference to a worldwide flood or that the earth was less than one million years old.
The proof in support of creation science consisted almost entirely of efforts to discredit the theory of evolution through a rehash of data and theories which have been before the scientific community for decades. The arguments asserted by the creationists are not based upon new scientific evidence or laboratory data which has been ignored by the scientific community.
Robert Gentry's discovery of radioactive polonium haloes in granite and coalified woods is, perhaps, the most recent scientific work which the creationists use as argument for a "relatively recent inception" of the earth and a "worldwide flood." The existence of polonium haloes in granite and coalified wood is thought to be inconsistent with radiometric dating methods based upon constant radioactive decay rates. Mr. Gentry's findings were published almost ten years ago and have been the subject of some discussion in the scientific community. The discoveries have not, however, led to the formulation of any scientific hypothesis or theory which would explain a relatively recent inception of the earth or a worldwide flood. Gentry's discovery has been treated as a minor mystery which will eventually be explained. It may deserve further investigation, but the National Science Foundation has not deemed it to be of sufficient import to support further funding.
The testimony of Marianne Wilson was persuasive evidence that creation science is not science. Ms. Wilson is in charge of the science curriculum for Pulaski County Special School District, the largest school district in the State of Arkansas. Prior to the passage of Act 590, Larry Fisher, a science teacher in the District, using materials from the ICR convinced the School Board that it should voluntarily adopt creation science as part of its science curriculum. The District Superintendent assigned Ms. Wilson the job of producing a creation science curriculum guide. Ms. Wilson's testimony about the project was particularly convincing because she obviously approached the assignment with an open mind and no preconceived notions about the subject. She had not heard of creation science until about a year ago and did not know its meaning before she began her research.
Ms. Wilson worked with a committee of science teachers appointed from the District. They reviewed practically all of the creationist literature. Ms. Wilson and the committee members reached the unanimous conclusion that creationism is not science; it is religion. They so reported to the Board. The Board ignored the recommendation and insisted that a curriculum guide be prepared.
In researching the subject, Ms. Wilson sought the assistance of Mr. Fisher who initiated the Board action and asked professors in the science departments of the University of Arkansas at Little Rock and the University of Central Arkansas (30) for reference material and assistance, and attended a workshop conducted at Central Baptist College by Dr. Richard Bliss of the ICR staff. Act 590 became law during the course of her work so she used Section 4(a) as a format for her curriculum guide.
Ms. Wilson found all available creationists' materials unacceptable because they were permeated with religious references and reliance upon religious beliefs.
It is easy to understand why Ms. Wilson and other educators find the creationists's textbook material and teaching guides unacceptable. The materials misstate the theory of evolution in the same fashion as Section 4(b) of the Act, with emphasis on the alternative mutually exclusive nature of creationism and evolution. Students are constantly encouraged to compare and make a choice between the two models, and the material is not presented in an accurate manner.
A typical example is Origins (Px 76) by Richard B. Bliss, Directory of Curriculum Development of the ICR. The presentation begins with a chart describing "preconceived idea about origins" which suggests that some people believe that evolution is atheistic. Concepts of evolution, such as "adaptative radiation" are erroneously presented. At page 11, figure 1.6 of the text, a chart purports to illustrate this "very important" part of the evolution model. The chart conveys the idea that such diverse mammals as a whale, bear, bat and monkey all evolved from a shrew through the process of adaptive radiation. Such a suggestion is, of course, a totally erroneous and misleading application of the theory. Even more objectionable, especially when viewed in light of the emphasis on asking the student to elect one of the models, is the chart presentation at page 17, figure 1.6. That chart purports to illustrate the evolutionists' belief that man evolved from bacteria to fish to reptile to mammals and, thereafter, into man. The illustration indicates, however, that the mammal which evolved was a rat.
Biology, A Search For Order in Complexity (31) is a high school biology text typical of creationists' materials. The following quotations are illustrative:
Flowers and roots do not have a mind to have purpose of their own: therefore, this planning must have been done for them by the Creator. (at page 12)
The exquisite beauty of color and shape in flowers exceeds the skill of poet, artist, and king. Jesus said (from Matthew's gospel), "Consider the lilies in the field, how they grow; they toil not, neither do they spin ..." (Px 129 at page 363)
The "public school edition" texts written by creationists simply omit Biblical references but the content and message remain the same. For example, Evolution -- The Fossils Say No! (32) contains the following:
Creation. By creation we mean the bringing into being by a supernatural Creator of the basic kinds of plants and animals by the process of sudden, or fiat, creation.
We do not know how the Creator created, what processes He used, for he used processes which are not now operating anywhere in the natural universe. This is why we refer to creation as Special Creation. We cannot discover by scientific investigation anything about the creative processes used by the Creator. (page 40)
Gish's book also portrays the large majority of evolutionists as "materialistic atheists or agnostics."
Scientific Creationism (Public School Edition) by Morris, is another text reviewed by Ms. Wilson's committee and rejected as unacceptable. The following quotes illustrate the purpose and theme of the text:
Parents and youth leaders today, and even many scientists and educators, have become concerned about the prevalence and influence of evolutionary philosophy in modern curriculum. Not only is the system inimical to orthodox Christianity and Judaism, but also, as many are convinced, to a healthy society and true science as well. (at page iii)
The rationalist of course finds the concept of special creation insufferably naive, even "incredible". Such a judgment, however, is warranted only if one categorically dismisses the existence of an omnipotent God. (at page 17)
Without using creationist literature, Ms. Wilson was unable to locate one genuinely scientific article or work which supported Section 4(a). In order to comply with the mandate of the Board she used such materials as an article from Readers Digest about "atomic clocks" which inferentially suggested that the earth was less than 4 1/2 billion years old. She was unable to locate any substantive teaching material for some parts of Section 4 such as the worldwide flood. The curriculum guide which she prepared cannot be taught and has no education value as science. The defendants did not produce any text or writing in response to this evidence which they claimed was usable in the public school classroom (33).
The conclusion that creation science has no scientific merit or educational value as science has legal significance in light of the Court's previous conclusion that creation science has, as one major effect, the advancement of religion. The second part of the three-pronged test for establishment reaches only those statutes as having their primary effect the advancement of religion. Secondary effects which advance religion are not constitutionally fatal. Since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion. The Act therefore fails both the first and second portions of the test in Lemon v. Kurtzman, 403 U.S. 602 (1971).
Act 590 mandates "balanced treatment" for creation science and evolution science. The Act prohibits instruction in any religious doctrine or references to religious writings. The Act is self-contradictory and compliance is impossible unless the public schools elect to forego significant potions of subjects such as biology, world history, geology, zoology, botany, psychology, anthropology, sociology, philosophy, physics and chemistry. Presently, the concepts of evolutionary theory as described in 4(b) permeate the public textbooks. There is no way teachers can teach the Genesis account of creation in a secular manner.
The State Department of Education, through its textbook selection committee, school boards and school administrators will be required to constantly monitor materials to avoid using religious references. The school boards, administrators and teachers face an impossible task. How is the teacher to respond to questions about a creation suddenly and out of nothing? How will a teacher explain the occurrence of a worldwide flood? How will a teacher explain the concept of a relatively recent age of the earth? The answer is obvious because the only source of this information is ultimately contained in the Book of Genesis.
References to the pervasive nature of religious concepts in creation science texts amply demonstrate why State entanglement with religion is inevitable under Act 590. Involvement of the State in screening texts for impermissible religious references will require State officials to make delicate religious judgments. The need to monitor classroom discussion in order to uphold the Act's prohibition against religious instruction will necessarily involve administrators in questions concerning religion. These continuing involvements of State officials in questions and issues of religion create an excessive and prohibited entanglement with religion. Brandon v. Board of Education, 487 F.Supp 1219, 1230 (N.D.N.Y.), aff'd., 635 F.2d 971 (2nd Cir. 1980).
These conclusions are dispositive of the case and there is no need to reach legal conclusions with respect to the remaining issues. The plaintiffs raised two other issues questioning the constitutionality of the Act and, insofar as the factual findings relevant to these issues are not covered in the preceding discussion, the Court will address these issues. Additionally, the defendants raise two other issues which warrant discussion.
First, plaintiff teachers argue the Act is unconstitutionally vague to the extent that they cannot comply with its mandate of "balanced" treatment without jeopardizing their employment. The argument centers around the lack of a precise definition in the Act for the word "balanced." Several witnesses expressed opinions that the word has such meanings as equal time, equal weight, or equal legitimacy. Although the Act could have been more explicit, "balanced" is a word subject to ordinary understanding. The proof is not convincing that a teacher using a reasonably acceptable understanding of the word and making a good faith effort to comply with the Act will be in jeopardy of termination. Other portions of the Act are arguably vague, such as the "relatively recent" inception of the earth and life. The evidence establishes, however, that relatively recent means from 6,000 to 20,000 years, as commonly understood in creation science literature. The meaning of this phrase, like Section 4(a) generally, is, for purposes of the Establishment Clause, all too clear.
The plaintiffs' other argument revolves around the alleged infringement by the defendants upon the academic freedom of teachers and students. It is contended this unprecedented intrusion in the curriculum by the State prohibits teachers from teaching what they believe should be taught or requires them to teach that which they do not believe is proper. The evidence reflects that traditionally the State Department of Education, local school boards and administration officials exercise little, if any, influence upon the subject matter taught by classroom teachers. Teachers have been given freedom to teach and emphasize those portions of subjects the individual teacher considered important. The limits to this discretion have generally been derived from the approval of textbooks by the State Department and preparation of curriculum guides by the school districts.
Several witnesses testified that academic freedom for the teacher means, in substance, that the individual teacher should be permitted unlimited discretion subject only to the bounds of professional ethics. The Court is not prepare to adopt such a broad view of academic freedom in the public schools.
In any event, if Act 590 is implemented, many teachers will be required to teach materials in support of creation science which they do not consider academically sound. Many teachers will simply forego teaching subjects which might trigger the "balanced treatment" aspects of Act 590 even though they think the subjects are important to a proper presentation of a course.
Implementation of Act 580 will have serious and untoward consequences for students, particularly those planning to attend college. Evolution is the cornerstone of modern biology, and many courses in public schools contain subject matter relating to such varied topics as the age of the earth, geology and relationships among living things. Any student who is deprived of instruction as to the prevailing scientific thought on these topics will be denied a significant part of science education. Such a deprivation through the high school level would undoubtedly have an impact upon the quality of education in the State's colleges and universities, especially including the pre-professional and professional programs in the health sciences.
The defendants argue in their brief that evolution is, in effect, a religion, and that by teaching a religion which is contrary to some students' religious views, the State is infringing upon the student's free exercise rights under the First Amendment. Mr. Ellwanger's legislative findings, which were adopted as a finding of fact by the Arkansas Legislature in Act 590, provides:
Evolution-science is contrary to the religious convictions or moral values or philosophical beliefs of many students and parents, including individuals of many different religious faiths and with diverse moral and philosophical beliefs. Act 590, &7(d).
The defendants argue that the teaching of evolution alone presents both a free exercise problem and an establishment problem which can only be redressed by giving balanced treatment to creation science, which is admittedly consistent with some religious beliefs. This argument appears to have its genesis in a student note written by Mr. Wendell Bird, "Freedom of Religion and Science Instruction in Public Schools," 87 Yale L.J. 515 (1978). The argument has no legal merit.
If creation science is, in fact, science and not religion, as the defendants claim, it is difficult to see how the teaching of such a science could "neutralize" the religious nature of evolution.
Assuming for the purposes of argument, however, that evolution is a religion or religious tenet, the remedy is to stop the teaching of evolution, not establish another religion in opposition to it. Yet it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause, Epperson v. Arkansas, supra, Willoughby v. Stever, No. 15574-75 (D.D.C. May 18, 1973); aff'd. 504 F.2d 271 (D.C. Cir. 1974), cert. denied , 420 U.S. 924 (1975); Wright v. Houston Indep. School Dist., 366 F. Supp. 1208 (S.D. Tex 1978), aff.d. 486 F.2d 137 (5th Cir. 1973), cert. denied 417 U.S. 969 (1974).
The defendants presented Dr. Larry Parker, a specialist in devising curricula for public schools. He testified that the public school's curriculum should reflect the subjects the public wants in schools. The witness said that polls indicated a significant majority of the American public thought creation science should be taught if evolution was taught. The point of this testimony was never placed in a legal context. No doubt a sizeable majority of Americans believe in the concept of a Creator or, at least, are not opposed to the concept and see nothing wrong with teaching school children the idea.
The application and content of First Amendment principles are not determined by public opinion polls or by a majority vote. Whether the proponents of Act 590 constitute the majority or the minority is quite irrelevant under a constitutional system of government. No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others.
The Court closes this opinion with a thought expressed eloquently by the great Justice Frankfurter:
We renew our conviction that "we have stake the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion." Everson v. Board of Education, 330 U.S. at 59. If nowhere else, in the relation between Church and State, "good fences make good neighbors." [McCollum v. Board of Education, 333 U.S. 203, 232 (1948)]
An injunction will be entered permanently prohibiting enforcement of Act 590.
It is ordered this January 5, 1982.
-- William R. Overton in the U.S. District Court, Eastern District of Arkansas, Western Division
1. The complaint is based on 42 U.S.C. &1983, which provides a remedy against any person who, acting under color of state law, deprives another of any right, privilege or immunity guaranteed by the United States Constitution or federal law. This Court's jurisdiction arises under 28 U.S.C. &&1331, 1343(3) and 1343(4). The power to issue declaratory judgments is expressed in 28 U.S.C. &&2201 and 2202.
2. The facts necessary to establish the plaintiff's standing to sue are contained in the joint stipulation of facts, which is hereby adopted and incorporated herein by reference. There is no doubt that the case is ripe for adjudication.
4. The authorities differ as to generalizations which may be made about Fundamentalism. For example, Dr. Geisler testified to the widely held view that there are five beliefs characteristic of all Fundamentalist movements, in addition, of course, to the inerrancy of Scripture: (1) belief in the virgin birth of Christ, (2) belief in the deity of Christ, (3) belief in the substitutional atonement of Christ, (4) belief in the second coming of Christ, and (5) belief in the physical resurrection of all departed souls. Dr. Marsden, however, testified that this generalization, which has been common in religious scholarship, is now thought to be historical error. There is no doubt, however, that all Fundamentalists take the Scriptures as inerrent and probably most take them as literally true.
7. Applicants for membership in the CRS must subscribe to the following statement of belief: "(1) The Bible is the written Word of God, and because we believe it to be inspired thruout [sic], all of its assertions are historically and scientifically true in all of the original autographs. To the student of nature, this means that the account of origins in Genesis is a factual presentation of simple historical truths. (2) All basic types of living things, including man, were made by direct creative acts of God during Creation Week as described in Genesis. Whatever biological changes have occurred since Creation have accomplished only changes within the original created kinds. (3) The great Flood described in Genesis, commonly referred to as the Noachian Deluge, was an historical event, worldwide in its extent and effect. (4) Finally, we are an organization of Christian men of science, who accept Jesus Christ as our Lord and Savior. The account of the special creation of Adam and Eve as one man and one woman, and their subsequent Fall into sin, is the basis for our belief in the necessity of a Savior for all mankind. Therefore, salvation can come only thru [sic] accepting Jesus Christ as our Savior." (Px 115)
8. Because of the voluminous nature of the documentary exhibits, the parties were directed by pre-trial order to submit their proposed exhibits for the Court's convenience prior to trial. The numbers assigned to the pre-trial submissions do not correspond with those assigned to the same documents at trial and, in some instances, the pre-trial submissions are more complete.
9. Px 130, Morris, Introducing Scientific Creationism Into the Public Schools (1975), and Bird, "Resolution for Balanced Presentation of Evolution and Scientific Creationism." ICR Impact Series No. 71, App. 14 to Plaintiff's Pretrial Brief.
10. The creationists often show candor in their proselytization. Henry Morris has stated, "Even if a favorable statute or court decision is obtained, it will probably be declared unconstitutional, especially if the legislation or injunction refers to the Bible account of creation." In the same vein he notes, "The only effective way to get creationism taught properly is to have it taught by teachers who are both willing and able to do it. Since most teachers now are neither willing nor able, they must first be both persuaded and instructed themselves." Px 130, Morris, Introducing Scientific Creationism Into the Public Schools (1975)(unpaged).
11. Mr. Bird sought to participate in this litigation by representing a number of individuals who wanted to intervene as defendants. The application for intervention was denied by this Court. McLean v. Arkansas, ____ F.Supp. ______, (E.D. Ark. 1981), aff'd. per curiam, Slip Op. No. 81-2023 (8th Cir. Oct. 16, 1981).
12. The model act had been revised to insert "creation science" in lieu of creationism because Ellwanger had the impression people thought that creationism was too religious a term. (Ellwanger Depo. at 79)
14. Specifically, Senator Holsted testified that he holds to a literal interpretation of the Bible; that the bill was compatible with his religious beliefs; that the bill does favor the position of literalists; that his religious convictions were a factor in his sponsorship of the bill; and that he stated publicly to the Arkansas Gazette (although not on the floor of the Senate) contemporaneously wit h the legislative debate that the bill does presuppose the existence of a divine creator. There is no doubt that Senator Holsted knew he was sponsoring the teaching of a religious doctrine. His view was that the bill did not violate the First Amendment because, as he saw it, it did not favor one denomination over another.
16. The joint stipulation of facts establishes that the following areas are the only information specifically required by statute to be taught in all Arkansas schools: (1) the effects of alcohol and narcotics on the human body, (2) conservation of national resources, (3) Bird Week, (4) Fire Prevention, and (5) Flag etiquette. Additionally, certain specific courses, such as American history and Arkansas history, must be completed by each student before graduation from high school.
17. Paul Ellwanger stated in his deposition that he did not know why Section 4(a)(2) (insufficiency of mutation and natural selection) was included as an evidence supporting creation science. He indicated that he was not a scientist, "but these are postulates that have been laid down by creation scientists." Ellwanger Depo. at 136.
18. Although defendants must make some effort to cast the concept of creation in non-religious terms, this effort surely causes discomfort to some of the Act's more theologically sophisticated supporters. The concept of a creator God distinct from the God of love and mercy is closely similar to the Marcion and Gnostic heresies, among the deadliest to threaten the early Christian church. These heresies had much to do with development and adoption of the Apostle's Creed as the official creedal statement of the Roman Catholic Church in the West. (Gilkey.)
19. The parallels between Section 4(a) and Genesis are quite specific: (1) "sudden creation from nothing" is taken from Genesis, 1:1-10 (Vawter, Gilkey); (2) destruction of the world by a flood of divine origin is a notion peculiar to Judeo-Christian tradition and is based on Chapters 7 and 8 of Genesis (Vawter); (3) the term "kinds" has no fixed scientific meaning, but appears repeatedly in Genesis (all scientific witnesses); (4) "relatively recent inception" means an age of the earth from 6,000 to 10,000 years and is based on the genealogy of the Old Testament using the the rather astronomical ages assigned to the patriarchs (Gilkey and several of the defendants' scientific witnesses); (5) separate ancestry of man and ape focuses on the portion of the theory of evolution which Fundamentalists find most offensive, Epperson v. Arkansas, 393 U.S. 97 (1968)
20. "[C]oncepts concerning ... a supreme being of some sort are manifestly religious ... These concepts do not shed that religiosity merely because they are presented as philosophy or as a science ..." Malnak v. Yogi, 440 F. Supp. 1284, 1322 (D.N.J. 1977); aff'd per curiam, 592 F.2d 197 (3d Cir. 1979).
21. See, e.g., Px 76, Morris, et. al., Scientific Creationism, 203 (1980) ("If creation really is a fact, this means there is a Creator, and the universe is his creation.") Numerous other examples of such admissions can be found in the many exhibits which represent creationist literature, but no useful purpose would be served here by a potentially endless listing.
22. Morris, the Director of ICR and one who first advocated the two model approach, insists that a true Christian cannot compromises with the theory of evolution and that the Genesis version of creation and the theory of evolution are mutually exclusive. Px 31, Morris, Studies in the Bible & Science, 102-103. The two model approach was the subject of Dr. Richard Bliss's doctoral dissertation. (Dx 35). It is presented in Bliss, Origins: Two Models - Evolution, Creation (1978). Moreover, the two model approach merely casts in educationalist language the dualism which appears in all creationist literature -- creation (i.e. God) and evolution are presented as two alternative and mutually exclusive theories. See, e.g., Px 75, Morris, Scientific Creationism (1974) (public school edition); Px 59, Fox, Fossils: Hard Facts from the Earth. Particularly illustrative is Px 61, Boardman, et. al., Worlds Without End (1971) a CSRC publication: One group of scientists, known as creationists, believe that God, in a miraculous manner, created all matter and energy ...
"Scientists who insist that the universe just grew, by accident, from a mass of hot gases without the direction or help of a Creator are known as evolutionists."
23. The idea that belief in a creator and acceptance of the scientific theory of evolution are mutually exclusive is a false premise and offensive to the religious views of many. (Hicks) Dr. Francisco Ayala, a geneticist of considerable reknown and a former Catholic priest who has the equivalent of a Ph.D. in theology, pointed out that many working scientists who subscribe to the theory of evolution are devoutly religious.
24. This is so despite the fact that some of the defense witnesses do not subscribe to the young earth or flood hypotheses. Dr. Geisler stated his belief that the earth is several billion years old. Dr. Wickramasinghe stated that no rational scientist would believe the earth is less than one million years old or that all the world's geology could be explained by a worldwide flood.
25. "We do not know how the Creator created, what processes He used, for he used processes which are not now operating anywhere in the natural universe. This is why we refer to creation as Special Creation. We cannot discover by scientific investigation anything about the creative processes used by God." Px 78, Gish, Evolution -- The Fossils Say No! (42) (3d ed. 1979) (emphasis in original).
26. The evolutionary notion that man and some modern apes have a common ancestor somewhere is the distant past has consistently been distorted by anti-evolutionists to say that man descended from modern monkeys. As such, this idea has long been more offensive to Fundamentalists. See, Epperson v. Arkansas, 393 U.S. 97 (1968)
27. Not only was this point acknowledged by virtually all the defense witnesses, it is patent in the creationist literature. See, e.g., Px 89, Kofahl & Segraves, The Creation Explanation, 40: "The Flood of Noah brought about vast changes in the earth's surface, including vulcanism, mountain building, and the deposition of the major part of sedimentary strata. This principle is called 'Biblical catastrophism."'
31. Px 129, published by Zonderman Publishing House (1974), states that it was "prepared by the Textbook Committee of the Creation Research Society." It has a disclaimer pasted inside the front cover stating that it is not suitable for use in public schools.
33. The passage of Act 590 apparently caught a number of its supporters off guard as much as it did the school district. The Act's author, Paul Ellwanger, stated in a letter to "Dick," (apparently Dr. Richard Bliss at ICR): "And finally, if you know of any textbooks at any level and for any subjects that you think are acceptable to you and are also constitutionally admissible, these are things that would be of enormous to these bewildered folks who may be cause, as Arkansas now has been, by the sudden need to implement a whole new ball game with which they are quite unfamiliar." [sic] (Unnumbered attachment to Ellwanger depo.)