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Origins and Civil Liberties
by Robert F Smith

… the First Amendment, … does not tolerate laws that cast a pall of orthodoxy over the classroom. Keyishian V Board of Regents (385 U.S. 603)

In 1963 I took a college "Survey of Philosophy" for which the text was Types and Problems of Philosophy, 3rd ed. (Holt, Rinehart & Winston, 1959), by Professor Hunter Mead of the California Institute of Technology. Professor Mead, a naturalistic philosopher completely uninterested in fronting for any religion, sought to provide what we in the ACLU ought always to applaud and support. A fair and impartial presentation of competing theories. In chapter V of his book, Mead covered ideas about the origin and development of life - beginning with the three main theories of origins, as outlined in my reading notes then:

A. Special Creation (idealistic/vitalistic, or supernaturalistic)
1. life introduced into world of inanimate matter
2. by special, intentional act of an intervening agent
3. not necessarily biblical (Genesis)
4. most widely held lay view (religious and Western)

B. Transmission
1. avoids ultimate question of how life began
2. life came to earth from another planet
3. spores contained in meteorites

C. Archebiosis (naturalistic/mechanistic)
1. general position of modern science
2. at some point in historical time, organic developed from inorganic
3. no external force or creative purpose
4. purely natural means (fortuitous combination of conditions)
5. a creed (not verifiable in laboratory)
6. a probability only

For the past five years, I have closely followed creationist literature and have attended lectures and debates on related issues. A few recent examples will suffice: During the past academic year, Dr. Gary E. Parker, a biologist with the Institute for Creation Research, spoke twice at the Univ. of Missouri at Kansas City (26 Oct. 1979 and 28 Mar 1980). Dr. Duane T.. Gish, a biochemist and associate director of ICR, debated Dr. Vincent Sarich, an anthropologist from the Univ, of California at Berkeley, at the studios of TV-50 with a live audience (7 Mar 1980, Kansas City, KS), and the video tape has been shown nationwide. Dr. Gish and the Director of ICR, Dr. Henry Morris, each debated evolutionists on two campuses of the University of Missouri some years ago, and the debates are available on cassettes locally. Only a few days ago, ICR's Summer Institute on scientific creationism concluded at Calvary Bible College, Kansas City, Missouri.

Based solely on the scientific arguments pro and con, I have been forced to conclude that scientific creationism is not only a viable theory, but that it has achieved parity with (if not superiority over) the normative theory of biological evolution. That this should now be the case is somewhat surprising, particularly in view of what most of us were taught in primary and secondary school. In practical terms, the past decade of intense activity by scientific creationists has left most evolutionist professors unwilling to debate the creationist professors. Too many of the evolutionists have been publicly humiliated in such debates by their own lack of erudition and by the weaknesses of their theory. The ACLU should, of course, be unconcerned with the results of such debates as long as the free market-place of ideas remains open. For, in all of these debates, creationists have been scrupulous to adhere to strict discussion of science alone. Not religion! Statements to the contrary are false.

Contrary to the allegations of one member of the National ACLU Church - State Committee, no creationist professors are seeking to "require public schools to offer courses and textbooks that support the literal Genesis account of creation." Nor can it be legitimately suggested that scientific creationists are "disguising fundamentalist religion in scientific jargon," or that they are working for some covert "advancement of sectarian religion," whatever personal beliefs most of them may have. Scientific creationism is not religious creationism. As legal scholar Wendell R. Bird points out, "Being consistent with religious views does not make it religion." In 1925, in Dayton, Tennessee, at a time and place where only religious creationism was legally taught, Clarence Darrow thought it "bigotry for public schools to teach only one theory of origins" (Bird and Darrow quoted in Kansas City Times, Dec. 21,1978, p. 2E; cf. Scopes V. State, 154 Tenn. 105). Would the ACLU be any less bigoted were it to demand that a modern-day John T. Scopes be allowed to teach only neo-Darwinian evolutionary theory?

I am heartened to learn (if belatedly) that some members of the National ACLU Committee on Academic Freedom have reservations about the relevance to this issue of the establishment clause of the First Amendment (S. Hendel Addendum, June 9, 1980). Indeed, the de facto establishment of views on the ultimate nature of reality and the indoctrination of secondary school students (public and private) in only one view has been with us for some time. It is, of course, the scientific establishment that determines which view will be promulgated in public schools. Normative religion usually follows in the wake of that establishment in our own time, as in the time of Galileo Galilei.

Contrary to common assumption, Galileo was racked and forced to recant at the behest of the dogmatic, geocentric scientific establishment of his day (Ptolemaic). The Church had merely adopted the Ptolemaic assumptions, as it had Aristotelian and Platonic philosophies. The open society ought to include the broadest possible discussion of opposing views rather than demanding (coercing?) adherence to one narrow, totalist position. In practice, the dualmode approach to origins enhances education and confirms John Stuart Mill's notion that competing theories test and sharpen each other (On Liberty. chapter II).

In School District of Abington Township vs. Schempp, in 1963, the U.S. Supreme Court left public schools open to far broader categories of instruction than even the creationists seek:

We do not agree, however, that this decision in any sense has that effect * * * Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment. But the exercises here do not fall into these categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion. (374 U.S. 225)

Not only are "religious exercises" not a part of scientific creationism, but one cannot conceive of any reason for "study of the Bible or of religion" in connection with it. Not even indirectly even though the Supreme Court would clearly allow it.

Scientific creationism depends rather upon normative science for its justification, i.e., the Second Law of Thermodynamics (entropy), inductive analysis of geologic strata, embryology, anthropology, multivariate analysis of fossils (paleontology & comparative anatomy), probability theory, etc. The upshot is that, although evolutionists might have comparative molecular biology on their side, recent discoveries have convinced many eminent evolutionists that one cannot obtain self-replicating molecules (life) in the presence of all-pervasive entropy/disorder, that there are no known transitional fossils (two such "missing links," Nebraska and Piltdown Man, were offered as evidence of evolution at the Scopes Monkey Trial, but they later turned out to be hoaxes), and the geologic column is characterized by the sudden, unsystematic, and catastrophic entry and exit of various forms of life. In each case, the scientific model is a theoretical construct based on circumstantial evidence from the past. Neither evolution nor creation has ever been observed, nor are they currently testable (provable) in a laboratory. Neither model is, thus, based any more on "faith" than the other. Similar problems of determining and reconstructing origins exist for astrophysics, where "steady state" and "big bang" models have existed side-by-side for a long time. That one model should coincide with some religious view is irrelevant.

In line with Lemon vs. Kurtzman (403 U.S 602,614; cf. 374 U.S. 215-6,222, 226), the only allowable test for the introduction of any theory of origins into the science curriculum of the public schools must be a test of scientific merit - which alone provides purpose, secularity, and lack of entanglement with religion. Government must remain neutral, and religion can have no hand in that assessment of merit. Separation of Church & State remains unthreatened by the introduction of scientific creationism. On the other hand, proscribing the teaching of scientific creationism would certainly violate the spirit of Epperson vs. Arkansas in that a de facto anti-creationist position is permitted while an anti-evolution statute is struck down! No group, secular or religious, should have the right to pretend that an area of knowledge doesn’t exist simply because it is "deemed to conflict with a particular" scientific dogma (393 U.S. 103). The Law is a double-edged sword, and the "right of teachers and students to be free of arbitrary restrictions upon the educational process (Meyer V. Nebraska, 262 U.S. 390) ought to be applied as readily to restrictions upon teaching creationism as to teaching evolution.

Religious creationism is rightly to be excluded from any public school system as for the Iowa Dept. of Public Instruction (Jan 1978 position paper), and for Tennessee in Daniel vs. Waters (515 F2d 485). However, the leading professional organizations of educators and scientists pushing scientific creationism, the Creation Research Society (CRS), and the Institute for Creation Research (ICR), have never sought to introduce religious creationism into the public schools. Indeed, in a recent lecture at UMKC, one ICR scientist, Or. Gary Parker, came under fire from a fundamentalist Christian in the audience for not mentioning Jesus or the Bible. ICR scientists stick to science remarkably well, and it has always been ICR policy to use education and persuasion in convincing states and school districts to put creationism in the science curriculum not via litigation or compulsory legislation, which are counterproductive, but by resolution, endorsement, and adoption of dual-model texts. Creationist scientists in this country are generally confident that they can win acceptance for scientific creationism in open debate on the scientific issues alone. In my judgment, they have good reason for such confidence, and ought to be given a hearing by the ACLU before any policy decisions are made.

As for suggestions of ulterior motives on the part of creationists, two points must be emphasized: (1) Scientific creationism is not the biblical view of creation in disguise nor is it in line with normative Jewish and Christian ex nihilo theory (see Ephraim Speiser, Genesis, Anchor Bible 1, at Gn. 1:1 comment). Anyone making such a suggestion ought to be prepared to give a rigorous, factual demonstration of it. (2) Creation-Life Publishers, vilified by the Hon. Cas Robinson of the Georgia House, was established with inadequate capitalization several years ago solely because no extant publishing house would print and promote creationist literature To date, no dividends have been paid to stockholders and attempts to sell the company to other publishers have failed. Reporting CLP 1979 gross sales receipts of $354,000, without providing net figures on a balance sheet, is silly and irresponsible. The phrase "scientific creationism" is not a registered trademark, and if dual model texts catch on, all school-text publishing houses will be publishing them.

I am not an evangelical, fundamentalist Christian, and my fundamentalist friends do not consider me to be a "Christian." I have no ulterior motive for the above statements (am not connected in any way with ICR or CRS), unless it is the simple-minded notion that the ACLU should maintain the highest possible standards in the protection and expansion of civil liberties The ACLU must avoid the adoption of policies based on fallacious reasoning or on the hearing of only one side of an issue. In line with ACLU policies #58 and 70,1 can see no reason why the ACLU would in any way desire to restrict the entry of scientific Creationism into the public school system whether such entry be provided by mandate or through laisser faire means. "Guilt by association" and other philistine nonsense in the March 1980 issue of the American School Board Journal (by Barbara Parker) is worthy of no further comment than to note the analogy with some of the idiotic charges made against the ACLU over the years due to its defense of unpopular persons and causes. The best answer to such misinformation is contained in two studies by W.R. Bird: 'Freedom of Religion and Science Instruction in Public Schools," 87 Yale Law Jnl 515570 (1978), and "Freedom from Establishment and Unneutrality in Public School Instruction and Religious School RegulaTion," 2 Harvard Journal of Law and Public Policy (1979).

I have little doubt that Mr. Bird, currently on the ICR staff would be willing to argue the entire matter before an ACLU Board Meeting.

NOTE: The above views are those of the author and do not constitute an official ACLU position.

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