Dov Wisebrod, January 1994
The problem in an advanced scientific culture is not that the forces of religion fight for dogma, ignorance, and dominance against the forces of scientific light—this is a nostalgic myth. The problem in such a culture is that scientific knowledge and religious belief may unite—and in a scientific culture, they will unite—in very dangerous ways. Scientific knowledge and technical know-how seem only to add force, not restraint, to religious fanaticism.1
Scientific creationism is an American invention consisting of an amalgam of religion and science. It represents the latest incarnation of fundamentalist attempts to have a biblical literalist theory of origins taught to public school children. Creationist organizations have successfully lobbied sympathetic members of state legislatures for sponsorship of statutes requiring this instruction to balance the teaching of evolutionary theory. These statutes have been repeatedly challenged on the ground that they violate the Establishment Clause of the First Amendment of the United States Constitution, which states that "Congress shall make no law respecting an establishment of religion."2
While the conceptual issues involved in the creationist debate have thus moved from the classroom to the courtroom, the result still impacts directly on young minds being instructed in public schools. An education in at least essential skills and basic subjects has been recognized by the Supreme Court as essential to individuals' successful participation in a democracy and an industrial economy.3 Therefore, the Court has been "particularly vigilant" in ensuring that, while acquiring this knowledge, impressionable children attending public school involuntarily are not indoctrinated in particular religious views which may conflict with their private beliefs.4
The issue, then, is whether instruction in scientific creationism necessarily involves indoctrination in particular religious views. Its proponents assert that it does not, and that it is rather a legitimate scientific discipline. Determining whether this is so involves answering the basic question of whether or not scientific creationism is indeed scientific. However, since this issue closely relates to the very difficult problem of defining science, the legal approach to the debate has generally been to avoid dealing with it. Another reason courts have avoided classifying scientific creationism is the sensitive nature of the issues involved. A prime illustration of this sensitivity and one jurisdiction's method of dealing with it can be found in Canada. The curriculum guideline of the Ontario Ministry of Education for intermediate and senior level science courses includes a provision which constitutes an admirable attempt to pre-empt the legal controversy that has continued in the United States for over a century. The provision states:
In science classes different viewpoints, including those based on deeply held religious or cultural beliefs, should be presented and discussed in a respectful and intelligent manner. If an issue in the science curriculum relates to religious perspectives, the teacher and students must understand that in the science classroom other realms of knowledge, such as religion with its doctrines and faith orientation, must be respected for their own intrinsic value and contributions. However, just as religious education by its nature must involve students in the study of religious knowledge and methodology, science education must involve students in the study of scientific knowledge and methodology. Students of all backgrounds should be encouraged to view science education as an opportunity to learn about the scientific viewpoint. If the material being studied in a particular unit is likely to be incompatible with the deeply held religious beliefs of some students and their parents, then such material should be treated sensitively and with discretion. In some situations it may be appropriate to assign alternative material to the students concerned.5
Rather than work toward an equally sensitive and flexible solution, the American creationist approach has been to lobby state legislatures for passage of statutes which force schools to include the creationist perspective in scientific instruction of origins. This strategy ultimately places the debate in court, a forum ill-suited to arbitration of either religious or scientific conflict, and doubly so to a conflict between the two realms. Nonetheless, as will be explained, courts have little choice but to deal with the conflict as best they can. The first purpose of this article is to show that at once the most difficult and essential issue to be determined by the reluctant judiciary is whether or not scientific creationism is science. The second purpose is to provide a practical legal technique to demarcate science from other bodies of knowledge, so that the crucial issue of characterizing scientific creationism may be resolved.
The article consists of four parts. The first part briefly outlines the historical and legal evolution of creationism. Creationists have consistently adapted their strategy in an effort to overcome legal defeats, and the latest adaptation has produced scientific creationists. The second part discusses the broad issues involved in the debate relating to the conflict between religion and science. Although religion and science can be fully compatible and independent, conflict does arise, as evident from scientific creationism. The role of law as arbiter of the conflict is discussed. The third part of the article argues that a definition of science is necessary for a legal analysis of the constitutionality of instruction in scientific creationism. The definition of one judge is presented, and it is followed by criticisms which an acceptable definition must avoid. The final part of the article offers a strategy for defining science that is successful at avoiding these criticisms. The operation of this strategy, the factor test, is then demonstrated by its application to scientific creationism.
It is concluded that scientific creationism fails in three key areas to qualify as science when the factor test is applied to it. It is, rather, irretrievably based in religious doctrine, and public school instruction in it constitutes a violation of the Constitution. In fact, this is the same result that has previously been determined in court, but the strategies chosen by courts have been the subjects of much controversy and criticism. By using the factor test, a conclusion may be reached in a manner that avoids earlier difficulties. Thus, courts are no longer without recourse to a philosophically sound and legally practical method of defining the science in scientific creationism.
American Fundamentalist Protestantism is the driving force behind creationism. The origin of this religious movement is found in nineteenth-century opposition to Charles Darwin and his theories, first published in 1859. At that time, the theory of evolution was viewed as an attack on the Bible and as the direct cause of the moral decay perceived by fundamentalists to be festering in society.6 Indeed, rapid social change was taking place, and much of it was a result of scientific and technological development.7 After World War I, fundamentalists again reacted strongly to the same perceived social ills. One manifestation of this reaction was the passage of statutes in the southern states to prohibit public school instruction in evolutionary theory.8
In the infamous 1927 "Monkey Trial" of Scopes v. State,9 this anti-evolution sentiment appeared in a court of law for the first time.10 The anti-evolution statute in that case was upheld, and the biology teacher was convicted, but the decision had a "subtle and pervasive influence"11 far greater than the $100 fine levied on John T. Scopes.12 Although the case is popularly remembered for being a victory for the theory of evolution and Clarence Darrow over fundamentalist biblical literalism and William Jennings Bryan,13 its tangible effect was much different. As a result of the passivity of scientists basking in glory after the Scopes triumph, "by default, they lost virtually every battle waged in the ensuing... years."14 Publishers of biology textbooks purged the theory of evolution and the name of its founder from their pages; teachers failed to teach the theory; and later, when slowly reintegrated into textbooks, the name of the theory was avoided.15
Biological science instruction spent over thirty years in this true shadow of Scopes. In 1957, however, Americans were collectively awakened from their stupor by the Soviet Union's launch of Sputnik, the first satellite. The fear this event engendered led to the enactment in 1958 of the National Defense Education Act, and in 1959 the National Science Foundation began funding the Biological Science Curriculum Study (BSCS).16 BSCS textbooks were written in consultation with leading biologists who "boldly embraced evolution."17 At the time of the first appearance in court of scientific creationism, BSCS texts were used by half of all children in school.18 Thus, the BSCS appeared to be successful in countering the effect of Scopes.
However, in the 1960's there was a resurgence in the number of followers and political influence of the fundamentalist movement.19 Contemporaneously, Susan Epperson, a public school teacher in Arkansas, challenged that state's anti-evolution statute. The Supreme Court was for the first time confronted with creationism. In Epperson v. Arkansas,20 the Court found that the Arkansas statute, which made it "unlawful for a teacher in any state-supported school or university 'to teach the theory or doctrine that man ascended or descended from a lower order of animals,' or 'to adopt or use in any such institution a textbook that teaches' this theory,"21 was designed "to prevent... teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man."22 The statute was struck down since "the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma."23
The Epperson decision made creationists aware of the constitutional difficulties facing anti-evolution statutes. In an attempt to comply with the Constitution, they lobbied for legislation mandating equal time for biblical creationism in instruction of origins. Subsequent legal challenges involved the issues surrounding this new strategy. "Creationist contentions that the exclusive presentation of evolutionary theory in the public schools violated their free exercise rights, constituted a governmental establishment of religion or, in the alternative, required equal emphasis of their theories regarding the origins of man, ...all met with defeat in the courts."24 After this strategy failed, the creationist focus shifted to legislation requiring equal time, or balanced treatment, of scientific creationism in public school instruction of origins.25 In this way, creationists adapted their strategy in reaction to legal difficulties.
Scientific creationism arrived in court at a time when principles of American constitutional law had begun to assume the status of legal rules. The test against which legislation is measured to determine its consistency with the Establishment Clause was set down in Lemon v. Kurtzman.26 The 'Lemon test' has been applied "almost without exception"27 since that case. It assimilated previous constitutional jurisprudence into three prongs:
 First, the statute must have a secular legislative purpose;  second, its principal or primary effect must be one that neither advances nor inhibits religion...;  finally, the statute must not foster 'an excessive entanglement with religion.'28
The first opportunity to apply the Lemon test to scientific creationism arose in the case of McLean v. Arkansas Bd. of Ed.29 The case has the most complete analysis ever conducted by a court into the nature of scientific creationism—that is, whether it is scientific or is, rather, religious. At issue was the constitutionality of Arkansas Act 590, the Balanced Treatment for Creation-Science and Evolution-Science Act.30
The statute was based on a model act drafted by Paul Ellwanger, founder of Citizens for Fairness in Education.31 In Section 4 of the Act is found an explicit definition of scientific creationism, labelled "creation-science," followed by a parallel definition of the theory of evolution, labelled "evolution-science:"
(a) "Creation-science" means the scientific evidences for creation and inferences from those scientific evidences. Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds.
(b) "Evolution-science" means the scientific evidences for evolution and inferences from those scientific evidences. Evolution-science includes the scientific evidences and related inferences that indicate: (1) Emergence by naturalistic processes of the universe from disordered matter and emergence of life from nonlife; (2) The sufficiency of mutation and natural selection in bringing about development of present living kinds from simple earlier kinds; (3) Emergence by mutation and natural selection of present living kinds from simple earlier kinds; (4) Emergence of man from a common ancestor with apes; (5) Explanation of the earth's geology and the evolutionary sequence by uniformitarianism; and (6) An inception several billion years ago of the earth and somewhat later of life.32
Section 1 of the Act requires "balanced treatment" of both "models" in all materials and in all courses, including both science and the humanities, "to the extent that [such materials and courses] deal in any way with the subject of the origin of man, life, the earth, or the universe."33
The remaining substantive sections comprise what can be described only as a legislated argument for constitutional justification. Section 2 explicitly prohibits religious instruction, requiring that instruction be limited to scientific evidence and inferences therefrom. Section 3 prohibits discrimination against any student who understands both, but accepts or rejects either, creation-science or evolution-science. Section 5 repeats the assertion that the Act does not permit religious instruction, adding that it "does not require any instruction in the subject of origins, but simply requires instruction in both scientific models (of evolution-science and creation-science) if public schools choose to teach either." Section 6 extensively declares the legislature's purposes in enacting balanced treatment. These purposes include "protecting academic freedom" and ensuring that no First Amendment violations are committed by the exclusive public school instruction of evolution. The section concludes with an emphatic assertion: "This legislature does not have the purpose of causing instruction in religious concepts or making an establishment of religion." Section 7 consists of twelve legislative findings of fact to which a constitutional argument could refer for support and strength. The section begins by asserting that the subject of origins is a topic of study in various courses, and that only evolution is being presented to students—creationism is censored. It then attacks evolution on the grounds that it is not an "unquestionable fact of science" and is contrary to religious beliefs; thus, it is asserted, exclusive instruction in evolution violates First Amendment rights, as well as the principle of academic freedom. Attendance in school is involuntary, and exemption of students from classes is an inadequate remedy. Presentation of "creation-science," which is an "alternative scientific model," would not violate constitutional protections since only "scientific evidences" and not "religious instruction" would be involved. Finally, a majority of the public favours such balanced treatment.34
The plaintiffs in McLean argued that "Act 590's two-model approach was a deceptive attempt to introduce religious beliefs into public schools.... Mandatory inclusion of creation-science... would force what they believed to be a false choice between science and religion, and ultimately between science and God."35 The plaintiffs included leaders of non-fundamentalist churches, parents of Arkansas school children, and a teacher of high school biology. Several Jewish groups, and organizations involved in education and religion, also joined the challenge.36 The defence, relying heavily on the support provided by the declaration of purpose in Section 6 of the Act, argued that academic freedom and scientific inquiry were furthered by the provision of alternatives to students, and that both would be hindered by the censorship of "creation-science."37
Justice Overton found against the constitutionality of the Act, since it violated each of the three prongs of the Lemon test. He pierced the veil of legislative purpose set out in the Act by tracing the legislative history, including the history of the fundamentalist movement, creationist organizations, and the prominence in creationism of a dualistic approach to the subject of origins.38 After conducting an extensive investigation into the evolution of the Act, focusing in particular upon the views and activities of its drafter, Paul Ellwanger,39 Justice Overton concluded that although the explicit purpose in the Act is granted "great deference" the circumstances of the Act's passage and the motives of its sponsor indicate that "[i]t was simply and purely an effort to introduce the Biblical version of creation into the public school curricula."40 Thus, the Act failed Lemon's first requirement—that it have a secular legislative purpose.
Next, Justice Overton engaged in an examination of the tenets of "creation-science," as set out in the Act, and determined that they "referred to a supernatural creation which was performed by God" and were "not merely similar to the literal interpretation of Genesis; they are identical and parallel to no other story of creation."41 He proceeded to define the "essential characteristics of science"42 and investigated to what extent "creation-science" satisfied them, concluding that it "fails to follow the canons defining scientific theory."43 Finally, he canvassed the content of creationist material, which "consisted almost entirely of efforts to discredit the theory of evolution,"44 concluding that the Act failed Lemon's second test since the primary effect of the instruction it mandated was the advancement of religious views.
The Arkansas Act also failed the final prong of the Lemon test, which demands avoidance of excessive entanglement with religion, since the need to monitor textbooks and teachers "in order to uphold the Act's prohibition against religious instruction will necessarily involve administrators in questions concerning religion."45
A challenge of legislation requiring balanced treatment of scientific creationism has reached the United States Supreme Court only once. In Edwards v. Aguillard,46 the Court did not choose to defer to the analysis and opinion of Justice Overton in McLean, preferring to engulf itself anew in the debate. The Louisiana statute at issue was based on the same model act as the Arkansas Act held unconstitutional in McLean.47 Ever the adept adapters, scientific creationists had altered the Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act48 in an effort to surmount the obstacles made apparent by the Arkansas challenge. Indeed, while the second draft of the bill presented by the Act's sponsor, Senator Bill Keith, included a definition of "creation-science" which was virtually indistinguishable from that in McLean, it was deleted the day after the complaint in McLean was filed.49
Including this deletion, there were three substantive differences between the Arkansas and Louisiana statutes. Firstly, the new brief definitions were that: "'Creation-science' means the scientific evidences for creation and inferences from those scientific evidences. 'Evolution-science' means the scientific evidences for evolution and inferences from those evidences."50 Secondly, the Louisiana Act had a "markedly different legislative purpose,"51 stating with surprising succinctness: "This Subpart is enacted for the purpose of protecting academic freedom."52 Finally, the passage of the Act by the Louisiana legislature was not characterized, as was the passage of the Arkansas Act, by a "hasty adoption of the proposal in the exact form supplied by religiously motivated private citizens."53 The expected effect of the brief definition of "creation-science" was that a court would be unable to find, as one had in McLean, that the Act was an expression of the biblical story of creation,54 and thus violated the effect prong of the Lemon test. Similarly, the concise statement of legislative purpose and the considered, rather than impulsive, adoption of the Act, was designed to avoid a failure to pass the purpose prong of the Lemon test.55
The remaining sections of the Louisiana Act have much in common with the Arkansas Act, as is to be expected since they were both based on the same model act.56 Section 4 includes a description of what balanced treatment requires, and includes prohibitions of discrimination against a student or a teacher. Section 5 states that the act does not require instruction in the subject of origins; only if instruction is given in either must the other be taught. A substantive addition to the requirements of the Arkansas Act is section 7, regarding curriculum development. Specifically, it provides for the development of a curriculum guide with the assistance, without compensation, of seven "creation-scientists," each of whom holds a full-time faculty position in any post-secondary institution in Louisiana.57
The plaintiffs, comprised of religious leaders, parents, and teachers, "moved for summary judgment, contending that there is no genuine issue as to any material fact and that as a matter of law the statute violates the Establishment Clause as interpreted by the United States Supreme Court."58 The principal issue was whether or not the statement of purpose in the Act could be trusted and fulfilled. Initially, Justice Duplantier granted the motion for summary judgement, holding that the "sole reason" for the Act was "that it comports with [a particular] religious doctrine,"59 thus "it promotes the beliefs of some theistic sects to the detriment of others, [and] the statute violates the fundamental First Amendment principle that a state must be neutral in its treatment of religion."60 On appeal, Justice Jolly held that the Act fails in its stated purpose, since requiring instruction in a course of study, "presumably upon risk of sanction or dismissal for failure to comply,"61 does not accord with academic freedom. Further, if the Act's purpose was to promote scientific creationism as an academic interest, it "would have required its teaching irrespective of whether evolution was taught."62 For these reasons, the Act failed the purpose prong of the Lemon test. The case then proceeded to the Supreme Court.
The decision in Edwards v. Aguillard was split seven to two, with a compelling and sharply worded dissent against the majority grant of summary judgement.63 Justice Brennan wrote the majority opinion. He stated emphatically that "[w]hile the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham."64 Ultimately, he determined that the declaration of purpose found in the Louisiana Act was indeed a "sham." An analysis of legislative history as well as the "historic and contemporaneous"65 antagonism between fundamentalist religion and instruction in the theory of evolution led to this conclusion. Yet, in a measure of accommodation,66 Justice Brennan commented obiter that "teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction."67
Justice Scalia, joined by Chief Justice Rehnquist, dissented on the ground that the majority "seeks to evade the force of this expression of purpose by stubbornly misinterpreting it, and then finding that the provisions of the Act do not advance that misinterpreted purpose, thereby showing it to be a sham."68 An adoption of the stated purpose of academic freedom is supported by its "obviously intended meaning"69 and by
[t]he legislative history [which] gives ample evidence of the sincerity of the Balanced Treatment Act's articulated purpose. Witness after witness urged the legislators to support the Act so that students would not be "indoctrinated" but would instead be free to decide for themselves, based upon a fair presentation of the scientific evidence, about the origin of life.70
Further, a trial would have provided a foundation of evidence upon which to base an examination of legislative purpose. Because summary judgement was granted, there was "no adequate basis for disbelieving the secular purpose set forth in the Act itself."71 In the final few pages of the dissent, Justice Scalia engaged in a concentrated criticism of Lemon's purpose test, citing several difficulties of ascertaining legislative motivation.72
The brief review of the history and legal treatment of the scientific creationist movement leaves many questions unanswered. Firstly, why and how did creationists adopt science as part of their strategy to achieve classroom instruction in creationism? Secondly, given the nature of religion and the nature of science, what was the likelihood of success at changing creationism into a valid scientific discipline? Finally, for what purpose and to what extent should law play a role as arbiter of the conflict between religion and science inherent in the debate over the nature of scientific creationism?
The first question is answered by Langdon Gilkey, a theological witness for the American Civil Liberties Union in McLean,73 who argues that "creationism is a reaction... to the careless identification of the scientific knowledge of origins with an exhaustive knowledge or understanding of origins."74 The same concept is expressed differently as "efforts to reconcile public science—that is, publicly supported science teaching and its related activities—with popular opinion."75 The power of the scientific establishment in our culture76 often leads to the overstepping of the bounds of science,77 including the assertion that all and only truth is scientific truth.78 The theory of evolution made this patently clear by its extension of "[t]he realm of natural law... from the domain of the inanimate into the most exclusive domain of life itself."79 Thus, science invaded a subject which historically was exclusively religious.80 This expansion of science was entrenched by the "increasingly dogmatic presentation" of the "doctrine" of evolution in textbooks from the late 1900's until Scopes.81
Some fundamentalist religious groups reacted to this circumstance by succumbing to the cultural presentation of science and seeking to scientifically validate their beliefs.82 This strategy exploited the authority science enjoys in modern society. Scientific creationists are able to call purportedly expert scientists as witnesses to testify in support of creationism,83 since they have adopted the data and methodology of science in an effort to acquire some of its respectable reputation.84 However, their critics are not impressed: "Through manipulation and vocabular blasphemy, supporters of creation-science... repackaged their doctrinal rigidity and theistic intolerance as science in an effort to avoid the judicial defeats suffered in the 1960's and 1970's."85 Thus, it is creationist adaptation to legal defeat, and not the elasticity of the bounds of science, that is the cause of the emergence of scientific creationism.
An important pillar of the new scientific creationist platform is dualism. Creationists believe in a literal interpretation of the Bible, and that this explanation of origins is wholly incompatible with the theory of evolution.86 A key principle of scientific creationism is that these are the only two possible theories of origins.87 This dualism has played an important role in the development of scientific creationist theory, which virtually entirely consists of criticism of the theory of evolution.88 The contention is that since there are only two theories of origins, criticism of evolution constitutes support for creationism. The "leap of faith" necessary to jump from critical evidence of one theory to affirmative evidence of another is not viewed positively by critics.89 The dualistic approach lends support to arguments for balanced treatment of creationism alongside evolution in public school instruction, because it seems eminently reasonable for two equally plausible explanations to be given equal time.90
What was forgotten by the creationists who tried to absorb science was that "the Bible is not a scientific textbook."91 Science and religion represent two distinct epistemologies. Though this does not preclude their mutual existence in an advanced scientific culture,92 reaching an amicable state requires that each epistemology recognize its limits and not infringe upon the other. Religious attempts to enter the sphere of objective experience acquired by observation, and efforts by science to enter the sphere of universal meaning,93 are examples of a "futile contest."94
In another sense, "[s]cience asks how questions about the character and processes of change," and "[r]eligion asks different sorts of questions, questions about meaning."95 One cannot answer the questions of the other. Further, there is a methodological limit of science and other disciplines that precludes answering religious questions, because while creationism assumes the existence of God, "[s]cience cannot talk about God."96 Similarly, as Gilkey noted when testifying in McLean, history does not appeal to divine causes of events,97 and "God is not recognized as an agent in a legitimate legal explanation of events,"98 either. The adoption by creationism, a religious doctrine, of the methodology of science was thus destined to fail.
Notwithstanding the above discussion of the compatibility and exclusivity of the two realms of science and religion, "[i]n such times as these, the religious dimension tends to expand, and, unfortunately, to grow in fanaticism, intolerance, and violence; science and technology likewise tend to concentrate more and more on developing greater and greater means of destructive and repressive power."99 These circumstances are reflected in Wright, one of the post-Epperson judgements of the creationist debate, where it was noted that "[s]cience and religion necessarily deal with many of the same questions, and they may frequently provide conflicting answers."100 Wright recognized that given the current tendency of religion and science to overlap, the availability of compatible cultural roles is reduced.
The introduction of law as arbiter of the dispute on the subject of origins was initiated by creationists, who prompted unconstitutional legislation on the issue. Subsequently, each side in the dispute was eager to return to court after defeat--"neither side would accept an adverse result as final."101 Whether law should or should not be arbiter of the increasingly complex dispute is therefore beside the point. The adaptation of scientific creationism to legal defeats creates ever more difficult issues, and it is easy to doubt the normative basis for a legal role in the conflict, but no choice is available.
Conversely, defining the limits of the role of law is a necessary but difficult task. There is no consensus as to the strictness of the level of review to which science should be subject. The principal factor demanding a lenient legal standard is the necessity of independent science review.102 The opposing argument for an unrestrained active legal role rests on serious doubt of the ability of the scientific community to govern itself with respect to quality control of research results, and even with respect to the extent entire disciplines satisfy the criteria defining science.103 The lack of judicial expertise in science, it is argued, is less important than the advantageous absence of the bias that often plagues science review.104
Other opinions agree that limits to the legal review of science are required, but disagree as to the extent of these limits. Different positions emerge out of different interpretations of the treatment in McLean of science and its definition. One interpretation of McLean is that it
forces us to consider the implications of the legal recognition of the unique status of science as exclusive arbiter of its own professional status and achievement. If science continues to look to the courts for 'protection' of its curriculum or for a consensus definition of science, will [law's] position within society as a neutral and independent arbiter of social disputes be weakened?105
Thus, since preserving the integrity of science review may adversely impact the integrity of legal review, only moderate limits should be placed on the extent of legal review. Yet, another interpretation of McLean disputes this evaluation.
The greatest success of the McLean opinion was its recognition of appropriate limits to the judicial resolution of disputes, and its implicit reliance upon the efficacy and integrity of specialized communities—such as the scientific and educational communities—to be the proper arbiters of claims of legitimacy made within their proper spheres.106
In this light, a very lenient standard should be applied by law in judging science, since the "proper arbiters" of such disputes are not judges. A recent decision by the Supreme Court supports this position by recognizing that prior subjection to peer review grants a degree of validity to scientific evidence.107
Though there is no consensus regarding the level of review against which science should be measured in court, there is also no advocate for conducting no review at all. Presumably, the reason for this is that given the principles of Establishment Clause jurisprudence, there is a strong argument for the legal necessity of evaluating purportedly scientific disciplines. This is due to severe problems plaguing the purpose prong of the Lemon test, which result in a need to place greater emphasis on the second prong. This prong focuses on the effect of a statute, which "must be one that neither advances nor inhibits religion."108 In the creationist debate, an evaluation of effect involves determining whether instruction in scientific creationism advances religious beliefs. To make this determination, it is necessary to decide whether scientific creationism is, as its proponents claim, a truly scientific departure from fundamentalist biblical literalism. A definition of science is necessary to enable this decision to be made.
An important reason for the failure of all courts, except for Justice Overton in McLean, to engage in an inquiry defining science is judicial recognition of the limits of their competence. When called upon to consider the conflict between religion and science inherent in scientific creationism,
judges avoided ruling on the scientific merits of evolution or creation, which they typically viewed as being beyond the scope of their competence, by basing their decisions on non-scientific factors, such as the religious nature of creationism or the social ramifications of evolutionary teaching....109
Indeed, in Wright Justice Seals noted that the "Court is hardly qualified to select from among the available theories those which merit attention in a public school biology class."110 Unfortunately, due to deficiencies of the purpose prong of the Lemon test, judges may not be able to afford the luxury of indecision on this issue.
The purpose prong of Lemon test is the primary scale against which legislation is measured to evaluate its compliance with the Establishment Clause, "for as the Supreme Court recently expressed, '[N]o consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose.'"111 However, it has become the target of much criticism.
Justice Brennan's decision for the majority in Edwards consisted primarily of an ascertainment, from legislative history and general historical circumstances, of the subjective motives of individual Louisiana legislators, in an effort which undermined the explicitly stated purpose of the Act.112 Much of the criticism of his decision involves the unreasonableness of an "unduly intrusive motive inquiry," and leaves commentators wondering whether the "court... is guilty of a pretext."113
Justice Scalia's dissent spelled out many of these criticisms. Firstly, Justice Scalia noted that "while it is possible to discern the objective 'purpose' of a statute (i.e., the public good at which its provisions appear to be directed), ...discerning the subjective motivation of those enacting the statute is... almost always an impossible task."114 Further, "the sole purpose" of any one legislator doesn't exist, since there are many possible motivations.115 Secondly, "where ought we to look for the individual legislator's purpose?"116 As the Edwards dissent notes, one can't assume that all legislators agreed with a particular member's pre-enactment or post-enactment floor statements, staff-prepared committee reports, testimony, or media reports. "All of these sources, of course, are eminently manipulable. Legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted."117 There is also no reason to assume any of these reflect the subjective rationales of the legislators.118 Thirdly, even if the subjective motivation of legislators can, in some way, be determined, one still faces the problem of "how many of them must have the invalidating intent."119 In fact, the court in Edwards did not identify many legislators with religious motivations.120 Further, extrapolating from the subjective purposes of some legislators to that of all, or even most, legislators and their constituents is unreasonable.121 In fact, Justice Scalia noted that such extrapolation involves the risk of legislators being condemned for supporting an unconstitutional statute "not on the basis of what the legislation contains, nor even on the basis of what they themselves intend, but on the basis of what others have in mind."122 In conclusion, the dissent called for the abandonment of Lemon's purpose test.123
Not included in Justice Scalia's dissent is an argument based on the adaptability of the creationist movement. The purpose prong analysis in the Edwards decision merely provided clues indicating to creationists how best to alter their strategy to achieve constitutional compliance. The sophistication of the Louisiana Act was not matched by the majority decision in Edwards. The deletion of the extensive definitions included in the Arkansas Act, the minimalist statement of legislative purpose, and the attempt to eliminate any evidence of religious motivation from the legislative history—including the fact that Paul Ellwanger "coached" the sponsor of the bill, Senator Bill Keith—are all indications of this sophistication.124 The court failed to note the doctoring of the legislative record, and Justice Brennan's chosen strategy of making selective use of the record provides incentive to creationists to next time heighten efforts to sanitize the legislative record in order to eliminate any material capable of proving religious purpose.125 "By continuing to focus on the legislative purpose of laws like Louisiana's rather than focusing on their effects, the Court has merely briefed creationists on how to structure their next assault."126
The first and second Lemon tests, the purpose prong and the effects prong, are not independent. The interaction between them is made apparent in Edwards from an elucidation of the line of reasoning implicitly followed by the majority. This reasoning was explicit in the dissent's criticism. Justice Scalia wrote:
Perhaps what the Louisiana Legislature has done is unconstitutional because... the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that "creation-science" is a body of scientific knowledge rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie.127
Thus, the majority necessarily had to have made a determination of the scientific and religious qualities of scientific creationism in order to grant summary judgement. Only by making such a determination could the Court have decided that the legislature's motivation could not possibly have been constitutional. A trial, unlike summary judgement, would have provided the evidence necessary to permit this determination to be made.128
Whether scientific creationism is scientific or religious is the crucial issue, but Edwards failed to judge it, unlike the McLean opinion in which Justice Overton recognized its importance.129 Whether scientific creationism is a "religious wolf dressed in sheep's clothing... [or is] a bona fide science" can only be determined by assessing the legislation's compliance with the effects prong of Lemon.130
Moreover, even if scientific creationism does in fact have aspects which are prominently religious, they may be severable from its truly scientific elements. Justice Overton stated in McLean that "[s]ince creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion."131 However, he failed to determine whether instruction could possibly be conducted without the religious element, as in fact required by the Arkansas Act.132 For example, assuming he would not have barred from public schools anything merely consistent with religious belief, then even if Einstein was "'inspired' by his musings on some sacred text" into discovering the theories of relativity, those theories should not be constitutionally barred merely because of their religious elements.133 These elements are easily barred from the scientific nature of the theories. Thus, an effects analysis must include a measurement of scientific creationism against a yardstick of science. Only an assessment of a doubted science in this way allows a definitive conclusion on the nature of its conceptual components, as distinct from its possible consistency with religion.
In conclusion, an effects analysis according to Lemon's second prong is necessary for three reasons. It avoids the problems inherent in an analysis under the purpose prong; it prevents a struggling judicial analysis under the purpose prong from merely preparing creationists for their next appearance in court; and, it provides the opportunity to assess what is in fact the crucial issue in these cases, the characterization of scientific creationism. Indeed, an effects analysis may be sufficient to determine compliance with all three of Lemon's prongs.134 Finally, in order to conduct a complete and definitive analysis of effects, including the possibility of severing non-scientific aspects of a body of knowledge from scientific aspects, a definition of science is required. Of course, first such a scientific yardstick must be constructed.
Defining science in the context of the debate regarding scientific creationism involves an analysis different than that normally conducted to evaluate expert scientific evidence. In the former case, the concern is not merely with the scientific methodology involved, but with the conclusions made. However, when dealing with evidence containing science-like conclusions a court will normally assume its characterization as science.135 Legal evaluation is reserved solely for authenticity of scientific methodology. This principle was recently almost taken for granted by the Supreme Court. The Court formulated a newly revised test for evaluating scientific evidence to ensure it has "a grounding in the methods and procedures of science."136 A strict limit to the application of the test was imposed, and from the language used it is apparent that the Court took this principle to be so well-established as to be self-evident. "The focus, of course, must be solely on principles and methodology, not on the conclusions they generate."137 For this reason, the new test for the evaluation of scientific evidence has only limited application to the construction of a definition of science in the context of the debate over the characterization of scientific creationism. In this context, an evaluation of conclusions is essential, and the inquiry is not limited merely to the methodology involved.
In addition, scientific demarcation criteria must be descriptive, and not prescriptive. The definition of science must not define what science should be, but only what it has been and what it is. Dolby lists no less than eight established theories of prescriptive demarcation of science from non-science.138 Besides their sheer variety, the theories suffer from faults such as being based on a priori judgements of what is and what is not science.139 Dolby concludes that "philosophy of science is not at present capable of providing inescapable arguments on what can or cannot be permitted as science."140
What is sought is a broad definition of science comprised of one or more descriptive demarcation criteria. This goal is not easily attainable.
In "the most controversial portion of its opinion"141 the court in McLean provided a definition of science and measured scientific creationism against it. Justice Overton was cornered into doing so by the strategy chosen by the plaintiffs in the case. Lawyers for the challengers of the Arkansas Act decided that "[p]oint-by-point refutation... could leave the impression of a contest between positions of comparable weight," so they focused on what "science" is and proceeded "to demonstrate that evolution is, and creation-science is not, science."142 Also, as discussed, since Justice Overton engaged in an evaluation of the legislation against all three of the Lemon tests, and since the second of these tests requires a definition of science, he needed to define science.143 The five-part definition in McLean states that
the essential characteristics of science are:
(1) It is guided by natural law;
(2) It has to be explanatory by reference to natural law;
(3) It is testable against the empirical world;
(4) Its conclusions are tentative, i.e., are not necessarily the final word; and
(5) It is falsifiable.144
This definition is the subject of much debate, both in law and the philosophy of science. The legal debate is relevant generally to any definition of science granted a judicial stamp of approval, while the philosophical debate concerns the McLean definition specifically, focusing on its inadequacy.
The principal legal argument is that the "opinion is not a model of judicial restraint."145 The definition of science was legally superfluous, since failure to pass any of the Lemon tests renders a statute unconstitutional. After Justice Overton determined that the statute failed the purpose prong, he was entitled to stop.146
A response to the alleged superfluity of the McLean definition has since been provided by Edwards. Criticism of that decision demonstrates conclusively that an assessment of the effects of legislation is a necessary condition to a logically coherent legal decision in this context, and a necessary condition for an effects analysis is the inclusion in it of a definition of science against which to measure scientific creationism. In addition, the inclusion in the Arkansas Act, unlike the sparse Louisiana Act, of the following finding of fact necessitated an assessment of the nature of scientific creationism:
Public school presentation of both evolution-science and creation-science would not violate the Constitution's prohibition against establishment of religion, because it would involve presentation of the scientific evidences and related inferences for each model rather than any religious instruction.147
Thus, the statute itself brought the nature of scientific creationism into contention. A scientific yardstick was required to decide this issue, and Justice Overton provided one.148
The primary controversial effect of Justice Overton's zeal is that by proceeding to define science, he introduced the danger that strict definitions will unduly restrict public school education, leading to the exclusion of topics worthy of study.149 Against this danger, however, must be weighed the danger of violating the constitutional rights of public school children. To this end, judicial discretion is necessary.150 Indeed, one reaction to the difficulties surrounding the purpose prong of Lemon is "to institute a balancing test which would retain the three existing prongs of Lemon."151 In this type of test, opposing dangers such as here exist could be weighed against each other. Furthermore, as the Supreme Court recently stated, "[s]cientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly."152 Justice Overton had to make a decision, and the only proper way he could do so involved defining science, regardless of the consequences.153
The above legal objections are easily dismissed, but the difficulties raised in the philosophy of science are not dealt with as quickly. This section deals with the problems inherent in each of the five criteria compromising the McLean definition, and the next section outlines a collective difficulty. Critical assessment of the McLean definition is necessary and constructive in that it provides a list of faults which an acceptable definition of science must effectively remedy.
The first and second criteria in the definition focus on the relationship of science to "natural law." This implies that science is objective—it is "guided by" and "explanatory by reference to" nature and not to personal conviction or other extrinsic influences. Yet this issue is not as simple as may be understood from McLean. Though not a wholly subjective process,
[s]cience is not value free. Indeed, science's raison d'être is its claim to be more socially valuable than alternates such as philosophy, mathematics and mysticism. Human resources are always limited and science must compete for a share on the basis of value produced. The familiar claim that science is a "value-free" process either confuses "value judgments" with subjective bias or serves as propaganda to deflect outside criticism and interference.154
Though a complete absence of objectivity may render a body of knowledge unscientific,155 no bright line may be drawn on the basis of objectivity or subjectivity.
Testability, the third criterion in the definition, is also problematic. McLean held scientific creationism to fail this test; yet, it is in fact testable, and it has failed those tests. "The correct way to combat Creationism is to refute the empirical claims it does make, not to pretend that it makes no such claims at all."156 Further, the performance of the theory of evolution against this test, and those which follow, is also questionable. "The conventional testability/verifiability/falsifiability doctrines apply poorly to the old style of evolution theory."157
Like the first two criteria, the final two, that scientific "conclusions are tentative" and that science "is falsifiable," are not absolute. Dogmatism is not unknown in science. "Would Newton, for instance, have been tentative about the claim that there were forces in the world? Are quantum mechanicians willing to contemplate giving up the uncertainty relation? Are physicists willing to specify circumstances under which they would give up energy conservation?"158 There may be distinctions to be made between different types of dogmatism, but the assertion that there is none in science is false.159
Obviously, "distinguishing science from non-science on abstract grounds is not all that easy."160 Indeed, even when united, the five criteria in the McLean definition fail to provide an acceptable demarcation technique for science, as the following section shows.
There is no indication in McLean that the definition of science there provided is anything less than complete and final. Yet, what is true of past or present science may not be true of future science.
The need to permit evolution of the definition of science is made apparent by two examples, one modern and the other historical. Firstly, modern physics, especially quantum physics, is considered by some to be closer in characterization to mysticism than to science.161 Physics formerly represented the epitome of scientific endeavour. Thus, "once a science, not always a science. Empires rise and fall."162 Secondly, Darwin himself was subject to opposition from his fellow biologists as a result of using a methodology which did not conform to what was generally considered at the time to be 'good' science:
[The Origin of Species, 1859] was criticized as a mass of speculations, unsubstantiated by the evidence he offered. It was claimed that he had deserted the path of inductive science to indulge in wild hypothesizing, moving outside the pale of science altogether.
...It was partly because of a general feeling that the scientist should not go too far beyond the accepted norms in conceiving his hypothesis. Darwin had flown in the face of all received doctrine of natural history and thus had engaged in uncontrolled speculation. Nineteenth-century philosophers, furthermore, believed that a really fruitful hypothesis in science must represent a truth about nature. In the end it should be capable of demonstrative proof, of deduction by a logical chain of reasoning from observed facts. This is something no modern philosopher of science could accept, because by such a standard almost every theory would have to be judged inadequate. One cannot prove a theory to be true in most cases, because the complexity of the situation will not allow such complete deductions to be made. The scientist can only provide evidence to support his theory, recognizing at all times that this falls short of absolute proof and thus the theory only can be accepted provisionally.163
It is apparent that the demarcation of science has shifted considerably since Darwin's era. The definition of science in McLean does not allow for a similar shift from its five criteria. In this respect, it is inadequate.
Two strategies remedy the inadequacies of the McLean definition.
(1) The distinction test is the result of drastically limiting the 'rule' in McLean to a mere distinction applicable directly to a single case and not necessarily having any greater relevance. A court would compare and contrast the body of knowledge brought before it against the body of science to which it closely relates. It would then investigate whether there is a distinction between them sufficient to characterize the body of knowledge as an unscientific pursuit. For example, the court would determine whether there is any distinction between the science of scientific creationism and the science of the theory of evolution.
(2) The factor test involves widening the inquiry into the nature of science by defining a non-exhaustive set of demarcative criteria, the 'factors,' no single one of which is either necessary or sufficient to define science, and inviting a court to engage in a broad investigation to determine the presence of one or many of the factors in the body of knowledge in question. It would stand to be determined in the individual case how few or how many factors justify characterization of a body of knowledge as science. Mere quantity is not determinative, either—an assessment of the degree to which a body of knowledge meets, or fails to meet, the criteria is essential. Thus, it is expected that the circumstances in each particular case will weigh heavily in the analysis.
Both strategies provide the definition necessary to conduct an efficient and effective analysis of the effects of a statute according to the second prong of the Lemon test. Both also remedy the deficiencies seen in the McLean definition by substantially changing those criteria. The first strategy eliminates the list of criteria entirely, and the second expands it well beyond the original five, possibly including none of them. Thus, the individual and collective problems of the criteria in McLean are solved.
The two strategies also alleviate the above-noted judicial reluctance to define science by providing flexible guidelines to judges regarding the extent and focus of the inquiry required. The distinction test limits the inquiry to the body of knowledge before the court and to the particular area of science to which it relates (e.g. scientific creationism and the theory of evolution), yet it also permits finding distinctions beyond these bounds. The factor test involves the court in a well-defined, yet flexible, analysis which is also limited to the body of knowledge before it. A further effect of the limited flexibility of the strategies is the possibility of their evolution, thus allowing for circumstances similar to those seen above with respect to modern physics and Darwin's theories.
The strategies are not exclusive. Indeed, they are closely related, since a distinction found by the first approach may be based on a factor included in an analysis according to the second approach. However, it is necessary to prescribe one of the approaches for use in a legal system, because if a choice is not made, an individual court would be able, by its choice, to determine at the outset the outcome of the case. If there was only one criterion which distinguished a body of knowledge from science, the choice of the distinction test could render it unscientific, while the choice of the factor test might allow its scientific characterization.
In fact, the distinction test would always permit a finding against the scientific characterization of a body of knowledge, since a distinction may always be found, if one wants to find one. Indeed, such an easily manipulated test would undoubtedly have been chosen by many of the courts before whom the debate regarding scientific creationism has appeared, since it is clear that there often exists a predisposition against the creationist view. In Epperson, the trial judge deliberately scheduled the trial for April Fool's Day.164 In the first hearing of the case that was to become Edwards, Justice Duplantier was "convinced that whatever evidence [could be presented by the defendants], it could not affect the outcome."165 On appeal, Justice Jolly began by writing that "[w]e approach our decision in this appeal by recognizing that, irrespective of whether it is fully supported by scientific evidence, the theory of creation is a religious belief."166 Finally, Justice Scalia's dissent in Edwards included rebuking the majority for having "an intellectual predisposition created by the facts and the legend of Scopes v. State" and rendering a judgement that was "Scopes-in-reverse."167
This predisposition provides the determinative factor dictating which strategy is preferred. "Lawyers practicing law's method are not scientists, except insofar as they share with scientists a desire to know what is really going on and, like scientists, are not sure of what they have to demonstrate until they have demonstrated it."168 The factor test, which provides firmer guidelines to judges resolving disputes which involve defining science, is unquestionably the better choice.
The sort of analysis expected under the factor test is conducted by Dolby, who "extract[s] demarcation criteria from past practice of natural science"169 and measures creationism against them. Below, following the list of criteria and a brief discussion of their application generally, is a limited evaluation of scientific creationism against the standard set by them. It is argued that Dolby's parenthetical commentary, which follows each listed factor, grants scientific creationism an overly sympathetic and entirely unjustified gentle treatment.
Dolby lists nine factors:
None of them can be regarded as either necessary or sufficient for the status of science.
1. Scientific knowledge is, or strives to be explicit and open to public scrutiny.... (Creationism seems to meet this criterion.)
2. It is coordinated, rather than fragmentary, bringing consistency, coherence, order, and simplicity to its content. (So is creationism.)
3. ...the empirical sciences at least should be based on and seek to explain experience. Conflicts between observation and expectation should be reconciled. (This applies to creationism.)
4. The observations and measurements made should strive to maximize their precision and the range they cover. (Creationism is too immature and too limited in its resources to have made much progress on this criterion.)
5. The science should seek some generality of understanding. (Creationism does.)
6. The concepts used and the relationships constructed among them should be as rigorously formulated as possible, so as to minimize ambiguity and to facilitate checking the inferences drawn. (It is easy to be highly suspicious of the apparent obscurantism of creationism on this criterion.)
7. The science so constructed should have explanatory and predictive power.... (Creationism seeks to explain and predict much, but it allows only a limited range of evidence to carry weight in criticism.)
8. Successful sciences should be capable of practical application to other sciences and to the rest of human practice. (The distinctive features of creationism do not seem to have any application, except in a religious context.)
9. There are some kinds of subject matter which successful science should avoid, in particular matters which have proved to be socially divisive, such as the theologically contentious or the politically divisive. Perhaps metaphysical, mystical, and nonnaturalistic approaches should also be excluded. (Creationism clearly fails to meet this criterion, but, as I have noted, none of these requirements can be regarded as necessary for science.)170
For the moment ignoring the parenthetical comments of Dolby, and dealing only with the factors listed, it is to be noted that this list is only a starting point. Firstly, it is non-exhaustive and as other criteria become apparent, they may be added. Yet, given the judicial reluctance to deal with this basic issue, it is likely that courts would be content to maintain these guidelines with minimal changes, if any. Secondly, failure to possess these criteria must be assessed before a final characterization can be made. It is here that judicial discretion is essential, and circumstances in the individual case are relevant. In particular, it is expected that the language of the specific statute and the testimony of experts in the body of knowledge would be granted heavy weight. For this reason, the assessment conducted below is limited to three issues which have been made apparent in the past, and does not purport to be directly applicable to the next scientific creationist statute which is challenged. Creationism has proven that one cannot underestimate its ability to change.
In the following assessment it is argued, with respect, that Dolby's evaluation of scientific creationism against the criteria listed above is mistaken in its leniency. Scientific creationism has not been recognized by the scientific community, as represented by the peer review involved in the publication process. Nor may its tenets be easily integrated into many existing bodies of knowledge. Finally, while scientific creationism may conform to the ideal of science as accepted over two centuries ago, the definition of science has changed and, as a result, it cannot now be considered a reputable scientific discipline.
Dolby states that creationism seems to meet the first criterion describing science. Yet, all evidence runs contrary to this conclusion. Scientific creationists have never, in any recognized scientific journal, "published an article espousing the creation science theory."171 A literature search spanning nearly four years of publication in approximately 4,000 forums of scientific literature was conducted by Cole and Scott. They found eighteen items that included terms related to creationism. Of these items, "no articles... provided scientific evidence or theoretical support for the assumptions and concepts that make up the core content of the scientific creationism curriculum materials."172 Coupled with the admissions of creationist witnesses at the McLean trial, which repeatedly revealed that "they had not actually submitted their papers to established peer-reviewed scientific journals,"173 this indicates a clear failure of scientific creationism to fulfil the first demarcative factor, which stipulates that science "strives to be... open to public scrutiny."
The eighth demarcative factor states that a science "should be capable of practical application to other sciences." Not only is scientific creationism only applicable in a religious context, as Dolby notes parenthetically, but its tenets run counter to a very wide range of disciplines. At the trial in McLean, Stephen Jay Gould, an expert witness for the plaintiffs, stated that "[c]reation science is not an alternative to so-called evolutionary science, a novel hypothesis to be integrated into an entire remaining structure of science; were it triumphant, it would represent the end of science as a tested and unified theoretical structure."174 The list of subjects which would be adversely affected by scientific creationism demonstrates the extent of its non-application to science and other disciplines: agronomy, anthropology, astronomy, biology, botany, chemistry, geology, geophysics, meteorology, palaeontology, philosophy, physics, psychology, sociology, world history, and zoology.175
Dolby is "inclined to the view that [scientific creationism] is archaic science functioning as a framework for a criticism of science."176 It is archaic because, contrary to the third, seventh, and ninth demarcative factors above, it seeks to reconcile conflicts between observation and expectation only to the extent scientific evidence supports the predictions supplied in the first few chapters of the Book of Genesis, and supports criticism of the theory of evolution. "Science, each faction of creationism argues, must produce results which are compatible with its own reading of the Bible. Any science which fails by this criterion is attacked."177
Membership in one of the principal organizations of scientific creationists, the Creation Research Society, is conditional on the signing of a statement attesting to belief in the biblical account of creation.178 Thus, any scientific approach to reconciling conflicts between data and theory is severely limited. "There is no possibility of change or development in the creationist scheme, because for its adherents the truth is already known on extrascientific grounds."179
Partly due to this strong reluctance to amend theory, the evidence scientific creationism provides consists virtually entirely of criticism of the theory of evolution.180 Scientific creationism is therefore more a reaction to the theory of evolution than a theory in its own right.181 In fact, one of its six tenets is that evidence indicates "[t]he insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism."182 The emphasis on critical evidence has been strategically successful, since it "has put evolutionists on the defensive without exposing creationists to any equivalent danger of attack."183 However, the evidence is of a particularly peculiar sort. It consists largely of very old data,184 and it is directed to issues which, if they have not been settled for decades, are being actively pursued by evolutionary scientists.185 Yet, due to the strength of their religious beliefs, it is to such evidence and for such a purpose that scientific creationists are limited if they choose to employ science in support of their cause.
By the standards of the early eighteenth-century for science, the religious views characteristic of scientific creationism are normal.186 Then, it was accepted that scientific data was to be interpreted in accordance with religious belief. Now, however, this approach is recognized as unscientific. The factor test must deal with this shift in the perception of 'good' science. Confronted with the choice of either providing for the evolution of the definition of science over time, or holding fast to a timeless definition, Dolby chooses the latter option. "After all, when philosophy of science tries to establish distinctive rational criteria by which acceptable science may be identified and to which good science should conform, these criteria should not just hold for present-day science but for all science, past, present, and future."187 Thus,
creationism is a kind of science. Science is not simply whatever the dominant mode of culture declares to be science.... Creationism is a science, then, because it is an archaic framework within which post-eighteenth-century knowledge is to be reconstructed, with the exclusion of all those aspects which are contrary to the prevailing biblical interpretation, on the principle that many of the new knowledge-constructing techniques which have augmented orthodox science since the eighteenth century are to be challenged. Such science, if it became widely practiced, would be a peculiar science but not an impossible science.188
Conversely, it was argued above that evolution of the definition of science was necessary, and was in fact apparent from the shifts in the acceptance of modern physics and Darwin's theories as science. In the author's opinion, if it is acceptable to take descriptive demarcation criteria from past science, as Dolby does,189 then it seems reasonable to also take direction from past science regarding other elements of the demarcative technique, including the degree of fixity of the definition over time. Therefore, the historical evolution of the definition of science demonstrates that the definition of science must be permitted to continue this process, for that is part of the nature of science—the evolution of its definition. If a consequence of this is that bodies of knowledge such as scientific creationism are excluded from the definition of science during a certain period of time, then so be it. Archaism is a factor to be weighed against a body of knowledge sought to be included in the definition of science, not one to be rationalized in order to achieve success in the pursuit of a timeless definition.
The religious aspects of scientific creationism not only render it archaic, but also lead to the suspicion that it is fraudulent. Dolby asserts it is "the kind of theory which people might take seriously because they want it to be true rather than because the evidence and argument appear to lead to the best judgment being that it is true."190 It is also, he argues, fraudulent to use science in an effort not to instruct public school children in "its highly unusual and tendentious nature as science but to inculcate belief among those children inclined to take the Bible as literal truth."191
Investigation into the element of corruption in scientific creationism is not characteristic of the focus expected in factor test analysis. This focus should be on the scientific nature of the body of knowledge, not on the motivation of its proponents. The motivation of a scientist should not in itself reduce a court's willingness to accept her work as falling within the philosophical definition of science. "A particular scientist may be a Hindu, a dogmatic athiest, a witch, or even a fundamentalist Christian, but such a religious belief should not be identified as an inability to be scientific."192 Inquiry into intent and goal is, however, crucial to the determination of whether scientific creationism falls within the legal definition of constitutionality. If its true goal is to indoctrinate children in religion, it is reasonable to infer that even if it has scientific aspects, these may not be severable from its religious aspects, since it is the religious component which is closely connected to the goal.193 Thus, the primary and unavoidable effect of instruction in scientific creationism would be the indoctrination of public school children in religion. This effect is unconstitutional since it violates the Establishment Clause.
The importance of the corruption of scientific creationism demonstrates that the factor test does not preclude analysis which is relevant to legal issues but not to the philosophical question of demarcation. The factor test is limited to serving as a practical strategic framework for defining science in legal contexts requiring a definition. One such context is that of the debate over the nature of scientific creationism. In this article, it has been demonstrated that in three fundamental areas—scholarly recognition, integration with other disciplines, and conformity to a non-archaic definition of science—scientific creationism fails to qualify as a science.
Although the strategy of the courts dealing with the debate has been to avoid confronting the issue of characterizing scientific creationism, they have still managed to reach the same decision arrived at in this article. However, as has been shown, this accomplishment has not been achieved without difficulty. It is suggested that the structured analysis set out above provides a clearer and more direct route to achieving any result—be it in favour of or in opposition to instruction of scientific creationism. The factor test either addresses or avoids the major criticisms of the current judicial approach.
The choice of the factor test was made after critical analysis of the definition of science used by one judge as a tool of demarcation. The absolute necessity for a definition of science is a direct consequence of the need to conduct an analysis under the effect prong of the Lemon test. Such an analysis is required due to flaws in Lemon's purpose prong, combined with the need to avoid merely propelling creationist adaptation in the pursuit of unconstitutional goals. The crucial legal issue in an assessment of the effect of public school instruction in scientific creationism is whether the theory can be taught in a manner that avoids indoctrination in religion. Only by assessing the effect of public school instruction of scientific creationism is it possible to determine this. Yet, to conduct an analysis of effect, a more fundamental and more difficult question must be answered: What is science, and does it include scientific creationism? An answer to this question requires a definition of science, and only a broad, flexible, yet defined strategy such as the factor test is capable of defining science in a legal context.
1 Langdon Gilkey, Creationism on Trial: Evolution and God at Little Rock, (Minneapolis: Winston, 1985) at 169. Emphasis original.
2 U.S. Const. amend. I, cl. I.
3 Lemon v. Kurtzman, 403 U.S. 602 at 655 (1971).
4 Edwards v. Aguillard, 107 S.Ct. 2573 at 2577 (1987).
5 Ontario Ministry of Education Curriculum Guideline, Science: Intermediate and Senior Divisions, Part 1: Program Outline and Policy, 1987, s. 10.2(7). Section 10 is entitled Values in Science Education; subsection 10.2 is entitled Handling Sensitive Issues.
6 See McLean v. Arkansas Bd. of Ed., 529 F.Supp. 1255 at 1258 (E.D. Ark. 1982) [hereinafter "McLean"], and Marcel C. La Follette, "Introduction", in Creationism, Science, and the Law: The Arkansas Case, ed. Marcel C. La Follette, (Cambridge, Mass.: The MIT Press, 1983) at 3 [hereinafter compilation volume cited as "Creationism, Science, and the Law"].
7 La Follette, ibid. at 3.
8 McLean, supra note 6 at 1259.
9 154 Tenn. 105, 289 S.W. 363 (Tenn. S.C. 1927).
10 La Follette, supra note 6 at 3.
11 McLean, supra note 6 at 1259.
12 Lucien J. Dhooge, "From Scopes to Edwards: The Sixty-Year Evolution of Biblical Creationism in the Public School Classroom" (1988) 22 U. Rich. L.R. 187 at fn. 16. The conviction was subsequently reversed on a procedural ground.
13 Aguillard v. Edwards, 765 F.2d 1251 at 1253 (5th Cir. 1985).
14 Michael Zimmerman, "Keep Guard Up After Evolution Victory", Oct 1987, Vol. 37, No. 9 BioScience 636.
15 Judith A. Villarreal, "God and Darwin in the Classroom: The Creation/Evolution Controversy" (1988) 64 Chicago-Kent LR. 335 at 343-344. See also McLean, supra note 6 at 1259.
16 See Edward J. Larson, Trial and Error: The American Controversy Over Creation and Evolution, updated ed., (New York: Oxford University Press, 1989) at 8, and McLean, ibid.
17 Larson, ibid. at 91.
18 McLean, supra note 6 at 1259.
20 Epperson v. Arkansas, 393 U.S. 97 at 98 (1968).
21 Ibid. at 98-99.
22 Ibid. at 107.
23 Ibid. at 106.
24 Dhooge, supra note 12 at 198. See Wright v. Houston Independent School District, 366 F.Supp. 1208, (S.D. Tex. 1972), aff'd 486 F.2d 137 (5th Cir. 1973), cert. denied, 417 U.S. 969 (1974), and Daniel v. Waters, 399 F.Supp. 510 (M.D. Tenn.), enforcing, 515 F.2d 485 (6th Cir. 1975).
25 Larson, supra note 16 at 4.
26 Lemon v. Kurtzman, supra note 3.
27 Villarreal, supra note 15 at 338.
28 Lemon v. Kurtzman, supra note 3 at 612. Numbering and emphasis added.
29 McLean, supra note 6.
30 1981 Ark. Acts 590, §§1-11, codified at Ark. Stat. Ann. §§80-1663 to -1670 (Cum. Supp. 1985), declared unconstitutional in McLean, supra note 6 [hereinafter "Arkansas Act" cited to Ark. Acts]. (The Act is reproduced in full in Creationism, Science, and the Law, supra note 6.)
31 McLean, supra note 6 at 1261.
32 Arkansas Act, supra note 30 §4(a)-(b). According to Ronald L. Numbers, The Creationists: The Evolution of Scientific Creationism, (New York: Alfred A. Knopf, 1992) at 245, this is "[o]ne of the most precise explanations of creation science" which lists its "six cardinal tenets." Numbers is generally acknowledged to be an expert on the history of creationism. Yet, there are other expressions of scientific creationism. See for example Willard Young, Fallacies of Creationism, (Calgary: Detselig, 1985) at 41:
The tenets of Scientific Creationism, of which there are nine, may be briefly paraphrased as follows:
1. The universe was created supernaturally by an eternal personal Creator.
2. Life did not evolve, but was also created.
3. All living 'kinds' were created at the beginning and can change only by variations within each 'kind,' or by deteriorative processes, or by extinction.
4. Man did not evolve but was created, as were all of his higher faculties such as intelligence, language, morality, and so on.
5. The earth's geology is the result of catastrophic processes, principally the Great Flood, rather than gradual ones.
6. Divine intervention in the lawful workings of nature is possible.
7. The original perfection of Creation has been lost, and all the degrading processes of nature are a consequence of that change.
8. By virtue of its supernatural creation, and the continuing involvement of the Creator Himself, the universe has purpose and meaning. Science should therefore take teleological factors into consideration when it studies nature.
9. Man can learn about the Creator and His purpose by scientific study, provided it is pursued in the right frame of mind.
33 Arkansas Act, supra note 30 §1.
34 Ibid. §§2, 3, 5, 6, and 7.
35 La Follette, supra note 6 at 5.
36 McLean, supra note 6 at 1257.
37 La Follette, supra note 6 at 9.
38 McLean, supra note 6 at 1258-1261. See also infra notes 86-90 and accompanying text for a discussion of the dualistic approach in scientific creationism. Very briefly, it involves the assertion that creationism and evolution are the only possible explanations of origins, so that if one is incorrect, the other is necessarily correct.
39 Ibid. at 1261-1263. At 1261, Justice Overton caustically observed that Ellwanger was "trained in neither law nor science. Mr. Ellwanger is of the opinion that evolution is the forerunner of many social ills, including Nazism, racism and abortion."
40 Ibid. at 1263-1264.
41 Ibid. at 1265.
42 Ibid. at 1267.
43 Ibid. at 1268. Justice Overton's definition is discussed at length in the third part of this article. See infra notes 141-163 and accompanying text.
44 Ibid. at 1270, and at 1269-1272 generally. See infra notes 88-89 and accompanying text, and notes 176-185 and accompanying text, for a discussion of the prominence in scientific creationist theory of criticism of evolutionary theory.
45 Ibid. at 1272.
46 Edwards v. Aguillard, supra note 4.
47 Ibid. at 2587.
48 La. Rev. Stat. Ann. §§ 17:286.1 to .7 (West 1982) [hereinafter "Louisiana Act"].
49 Edwards v. Aguillard, supra note 4 at 2586-2587, Powell, J., concurring.
50 Louisiana Act, supra note 48 §286.3(2)-(3).
51 Pre-trial brief of creationist lawyer Wendell Bird, quoted in Larson, supra note 16 at 167.
52 Louisiana Act, supra note 48 §286.2.
53 Larson, supra note 16 at 167.
54 Dhooge, supra note 12 at 210-211.
55 Larson, supra note 16 at 167.
56 Supra note 31 and accompanying text.
57 Louisiana Act, supra note 48 §§286.4, .5, and .7.
58 Aguillard v. Treen, 634 F.Supp. 426 at 427 (E.D. La. 1985).
59 Ibid. at 428.
60 Ibid. at 429.
61 Aguillard v. Edwards, supra note 13 at 1257. Emphasis original.
62 Ibid. at 1257.
63 Edwards v. Aguillard, supra note 4. Since both the majority and dissenting opinions are given more complete analytical treatment below, only a few brief remarks are made here.
64 Ibid. at 2579.
65 Ibid. at 2581.
66 Larson, supra note 16 at 180.
67 Edwards v. Aguillard, supra note 4 at 2583.
68 Ibid. at 2601, Scalia, J., dissenting.
69 Ibid. at 2602, Scalia, J., dissenting.
70 Ibid. at 2603, Scalia, J., dissenting.
71 Ibid. at 2604, Scalia, J., dissenting.
72 Ibid. at 2605-2607, Scalia, J., dissenting. See infra notes 114-123 and accompanying text for an extensive discussion of Justice Scalia's criticisms of the purpose prong.
73 Gilkey, supra note 1 at vi.
74 Ibid. at 164. Emphasis original.
75 Larson, supra note 16 at 4-5.
76 Gilkey, supra note 1 163.
77 Ibid. at 165.
78 Ibid. at 171.
79 Young, supra note 32 at 17.
80 Ibid. at 115.
81 Larson, supra note 16 at 5.
82 Gilkey, supra note 1 at 171.
83 La Follette, supra note 6 at 12.
84 See Young, supra note 32 at 40, and ibid. at 3-4.
85 Dhooge, supra note 12 at 227.
86 La Follette, supra note 6 at 4. See also McLean, supra note 6 at 1259.
87 McLean, ibid. at 1260: "This dualistic approach to the subject of origins permeates the creationist literature."
88 Infra notes 176-185 and accompanying text.
89 See Dhooge, supra note 12 at 226.
90 La Follette, supra note 6 at 4.
91 Young, supra note 32 at 115.
92 Ibid. at 115.
93 Gilkey, supra note 1 at 108-109.
94 Young, supra note 32 at 116.
95 Gilkey, supra note 1 at 109.
96 Ibid. at 97. Emphasis original. This methodological distinction was recognized and followed in the aforementioned provision of the Ontario Ministry of Education. See supra note 5 and accompanying text.
97 Ibid. at 115.
98 Ibid. at 116. Emphasis original.
99 Langdon Gilkey, "The Creationist Controversy: The Interrelation of Inquiry and Belief," in Creationism, Science, and the Law, supra note 6 at 137.
100 Wright v. Houston Independent School District, supra note 24 at 1211.
101 Larson, supra note 16 at 187.
102 Young, supra note 32 at 119, argues that "[c]ontroversy in science is perfectly normal, desirable, generally courteous, and actually enjoyable." At 122 he states the following:
There is no simple formula for distinguishing unorthodoxy born of genius or insight, from that born of ignorance or fallacy. In fact, folly, argued well, may sometimes appear more plausible and reasonable than positions of validity. It is therefore necessary for the health and vitality of the scientific endeavor to force every new hypothesis to prove itself worthy of acceptance in accordance with recognized criteria of proof before it can earn its place in the structure of scientific knowledge.
103 Chester N. Mitchell, "Judging and Policing Science: The Law's Need for Science Consumer Protection" (1988) 8 Windsor Y.B. Access Just. 3 at 4. See also 40-42 generally. Mitchell's argument for extensive judicial investigation into the "validity and integrity" of science principally involves protection of judges from the problems inherent in science:
Quality control problems in science affect the law at different levels. First, if lawyers and judges are not equipped to discriminate between good and bad research they may avoid using valid research results or they may uncritically accept invalid evidence. Second, policy makers may rely on unfounded theories or ignore valuable science in creating legislation. Third, legal theorists may promote inappropriate hypotheses or misdirect scarce research resources. (At 4.)
104 Ibid. at 42. "Outside observers cannot marshall the detail insiders can—but detailed knowledge is often less useful for rendering judgment than lack of bias and an ability to know and apply the rules. This is the basis on which judges, as outsiders, resolve legal disputes." (At 33.)
105 La Follette, supra note 6 at 11. Emphasis original. 106 Mark E. Herlihy, "Trying Creation: Scientific Disputes and Legal Strategies," in Creationism, Science, and the Law, supra note 6 at 102.
107 Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S.Ct. 2786, 27 USPQ 1200 at 1206 (1993) [hereinafter cited to USPQ]. See infra notes 171-173 and accompanying text for a discussion of the peer review to which scientific creationism has (or rather has not) been subject.
108 Lemon v. Kurtzman, supra note 3.
109 Larson, supra note 16 at 5. See also Villarreal, supra note 15 at 335.
110 Wright v. Houston Independent School District, supra note 24 at 1211.
111 Augillard v. Edwards, supra note 13 at 1255, citing Wallace v. Jaffree, 105 S.Ct. 2479 at 2490 (1985). Brackets original.
112 Edwards v. Aguillard, supra note 4, Brennan, J., generally.
113 Gary C. Leedes, "Monkeying Around with the Establishment Clause and Bashing Creation-Science" (1988) 22 U. Rich. L.R. 149 at 155.
114 Edwards v. Aguillard, supra note 4 at 2605, Scalia, J., dissenting.
115 Ibid. at 2605-2606, Scalia, J., dissenting. Emphasis original. See also Leedes, supra note 113 at 157-158.
116 Ibid. at 2606, Scalia, J., dissenting.
117 Ibid. at 2606, Scalia, J., dissenting.
118 Sherri Schaeffer, "Notes: Edwards v. Aguillard: Creation Science and Evolution—The Fall of Balanced Treatment Acts in the Public Schools" (1988) 25 San Diego L.R. 829 at 845.
119 Edwards v. Aguillard, supra note 4 at 2606, Scalia, J., dissenting. Emphasis original.
120 Leedes, supra note 113 at 156.
121 Ibid. at 155.
122 Edwards v. Aguillard, supra note 4 at 2606, Scalia, J., dissenting. Emphasis original.
123 Ibid. at 2607, Scalia, J., dissenting.
124 Note, "Leading Cases" (1987) 101 Harvard L.R. 119 at 195-196 [hereinafter "Harvard"], noting evidence in the Brief for Appellees in Edwards v. Aguillard, supra note 5, consisting of a letter from Paul Ellwanger to Senator Keith. See also McLean, supra note 6 at 1261-1262, where Mr. Ellwanger's correspondence to Senator Keith and others is outlined. In hindsight, given the use to which this correspondence was put by Justice Overton, it is highly ironic.
Ellwanger shows a remarkable degree of political candor, if not finesse, in a letter to State Senator Joseph Carlucci of Florida: "2. It would be very wise, if not actually essential, that all of us who are engaged in this legislative effort be careful not to present our position and our work in a religious framework. For example, in written communications that might somehow be shared with those other persons whom we may be trying to convince, it would be well to exclude our own personal testimony and/or witness for Christ, but rather, if we are so moved to give that testimony on a separate attached note." The same tenor is reflected in a letter to Mary Ann Miller, a member of FLAG (Family, Life, America under God) who lobbied the Arkansas Legislature in favor of Act 590: "...we'd like to suggest that you and your co-workers be very cautious about mixing creation-science with creation-religion... Please urge your co-workers not to allow themselves to get sucked into the 'religion' trap of mixing the two together, for such mixing does incalculable harm to the legislative thrust. It could even bring public opinion to bear adversely upon the higher courts that will eventually have to pass judgment on the constitutionality of this new law."
125 Ibid. at 196-197.
126 Ibid. at 190. Emphasis original.
127 Edwards v. Aguillard, supra note 4 at 2604, Scalia, J., dissenting. Emphasis original.
128 Harvard, supra note 124 at 197-198.
129 Nancy Levit, "Creationism, Evolution and the First Amendment: Limits of Consitutionally Permissible Scientific Inquiry" (April 1985) Vol. 14, No. 2 J.L. & Educ. 211 at 220.
130 Schaeffer, supra note 118 at 847.
131 McLean, supra note 6 at 1272. Emphasis original.
132 Arkansas Act, supra note 30 §2.
133 Stephen L. Carter, "Evolutionism, Creationism, and Treating Religion as a Hobby"  Duke L.J. 977 at 983. See also infra note 192 and accompanying text, asserting that scientific theories should not be barred solely due to the religious belief of an individual scientist, either.
134 Dhooge, supra note 12 at 221-222.
135 Mitchell argues that this deference is in fact incorrect and damaging. See Mitchell, supra note 103 generally.
136 Daubert v. Merell Dow Pharmaceuticals Inc., supra note 107 at 1204.
137 Ibid. at 1207. Emphasis added.
138 R. G. A. Dolby, "Science and Pseudo-Science: The Case of Creationism" (June 1987) Vol. 22, No. 2 Zygon 195 at 197-202.
139 See ibid. at 200 and 201, following. Emphasis original:
Karl Popper proposed to demarcate science at the level of scientific theories. The principle he used was that all scientific theories should be falsifiable, and any theory which was unfalsifiable was metaphysics rather than science. If the supporters of a theory tried to protect it from falsification, then their practice was pseudo-scientific.
...In Popper's autobiographical accounts of the development of his principle of demarcation, he tells us that he wished to provide a principle which would establish the scientific nature of Einstein's general theory of relativity, while denying the same status to Marxism, psychoanalysis, and Adlerian individual psychology.
140 Ibid. at 202.
141 Dhooge, supra note 12 at 203.
142 Eric Holtzman and David Klasfeld, "The Arkansas Creationism Trial: An Overview of the Legal and Scientific Issues," in Creationism, Science, and the Law, supra note 6 at 91.
143 Supra notes 127-133 and accompanying text.
144 McLean, supra note 6 at 1267. See also Mitchell, supra note 103 at 6-7 for three tests essentially corresponding to the five criteria in McLean. Just what the first McLean criteria means by "natural law" is difficult to determine, both in itself and given its use in popular culture by groups of questionable scientific character. In the McLean opinion, it is used to classify as non-science the appeal to supernatural causes in scientific creationism. Science involves nature, not supernature.
145 Dhooge, supra note 12 at 207.
146 Levit, supra note 129 at 216. Although Wallace v. Jaffree, supra note 111, which held that after finding a violation of the purpose prong further analysis is unnecessary, was decided three years after McLean, it was still the case at the time of McLean that a violation of any prong invalidated legislation.
147 Arkansas Act, supra note 30 §7(k).
148 Dhooge, supra note 12 at fn. 96.
149 Patricia M. Lines, "Scientific Creationism in the Classroom: A Constitutional Dilemma" (1982) 28 Loyola L.R. 35 at 50.
150 Dhooge, supra note 12 at 228.
151 Charles Joseph Sgro, "Note" (1989) 19 Seton Hall L.R. 120 at 137.
152 Daubert v. Merrell Dow Pharmaceuticals Inc., supra note 107 at 1207.
153 An objection of 'limited superfluity' to the McLean decision involves the choice made by Justice Overton to construct a definitive rule for the demarcation of science "rather than... simply asserting a rule of distinction between parties to the dispute" (La Follette, supra note 6 at 11). This valid objection is given full treatment further below, where it contributes substantially to the construction of a definition of science.
154 Mitchell, supra note 103 at 37.
155 Ibid. at 38.
156 Larry Laudan, "Commentary on Ruse: Science at the Bar--Causes for Concern," in Creationism, Science, and the Law, supra note 6 at 162.
157 Holtzman and Klasfeld, supra note 142 at 93.
158 Laudan, supra note 156 at 163, noting historians and philosophers of science who have acknowledged the existence of some dogmatism in science.
159 Ibid. at 163. See also Michael Ruse, "Response to Laudan's Commentary: Pro Judice," in Creationism, Science, and the Law, supra note 6 at 170.
160 Holtzman and Klasfeld, supra note 142 at 93.
161 Mitchell, supra note 103 at 31-32.
162 Ibid. at 28-29.
163 Peter J. Bowler, Evolution: The History of an Idea, rev. ed., (Berkeley: University of California Press, 1988) at 214-215. Emphasis original.
164 Larson, supra note 16 at 99.
165 Aguillard v. Treen, supra note 58 at 427. See also ibid. at 169.
166 Aguillard v. Edwards, supra note 13 at 1253.
167 Edwards v. Aguillard, supra note 4 at 2604-2605, Scalia, J., dissenting.
168 Joseph Vining, The Authoritative and the Authoritarian, (Chicago: University of Chicago Press, 1986) at 27. Emphasis added. To be fair, some courts have recognized that decisions "against" religious activities could be misconstrued and have included "disclaimers" when concluding their judgements.
For example, in Aguillard v. Edwards, supra note 13 at 1257, Justice Jolly states: "Nothing in our opinion today should be taken to reflect adversely upon creation-science either as a religious belief or a scientific theory. Nothing in our opinion today should be taken to reflect a hostile attitude toward religion."
See also Lemon v. Kurtzman, supra note 3 at 625:
Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous....
The merit and benefit of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses.
169 Dolby, supra note 138 at 203.
170 Ibid. at 203-204. See also Mitchell, supra note 103 at 7-8, where, like the factor test, he broadens what amounts to a McLean-like demarcation test by including "indirect criteria," both positive and negative, in the definition of science.
171 McLean, supra note 6 at 1268.
172 Henry P. Cole and Eugenie C. Scott, "Creation-Science and Scientific Research" (1982) 63 Phi Delta Kappan 557 at 557. "Four of these [18 items] were articles critical of scientific creationism as pseudoscience. Five references were to editorials that discussed the scientific and legal issues involved in attempts to promote scientific creationism in the schools, and nine items were letter to editors expressing opinions on the topic, some in favor and some opposed."
173 La Follette, supra note 6 at 8.
174 Stephen Jay Gould quoted in Gilkey, supra note 1 at 151. Emphasis original.
175 This list is culled from the following sources: Arkansas Act, supra note 30 §7(a); McLean, supra note 6 at 1272; Gilkey, supra note 1 at 149-151; Holtzman and Klasfeld, supra note 142 at 88; Villarreal, supra note 15 at 373; Frederick Edwords, "Is It Really Fair to Give Creationism Equal Time?", in Scientists Confront Creationism, ed. Laurie R. Godfrey (New York: W.W. Norton, 1983) at 310; and, Stephen G. Brush, "Creationism and Education in the Physical Sciences," in Creationism, Science, and the Law, supra note 6 at 174.
176 Dolby, supra note 138 at 208.
177 Ibid. at 206.
178 McLean, supra note 6 at fn. 7 quotes this statement:
(1) The Bible is the written Word of God, and because we believe it to be inspired thuout (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, world-wide 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. [Numbering and parentheses original.]
See also Young, supra note 32 at 64, where it is shown that a statement of this sort is not unique to the Creation Research Society.
179 Bowler, supra note 163 at 363.
180 Another major reason for the reliance on criticism is that the dualistic approach to the subject of origins taken by scientific creationism leads to criticism of one theory being equated with affirmative evidence for another. See supra notes 86-90 and accompanying text.
181 Carter, supra note 133 at 979.
182 Arkansas Act, supra note 30 §4(2)(a). Emphasis added.
183 Bowler, supra note 163 at 356.
184 McLean, supra note 6 at 1270.
185 Holtzman and Klasfeld, supra note 142 at 88.
186 Dolby, supra note 138 at 207.
187 Ibid. at 209.
188 Ibid. at 208-209.
189 Supra note 169 and accompanying text.
190 Dolby, supra note 138 at 209.
191 Ibid. at 209.
192 David S. Caudill, "Law and Worldview: Problems in the Creation-Science Controversy" (1985) 3 J.L. & Religion 1 at 18. Emphasis original.
193 See the discussion of severability, supra notes 131-133 and accompanying text.