Evolution and the Holy Ghost of Scopes: Can Science Lose the Next Round?
Stephen A. Newman
New York Law School
Rutgers Journal of Law and Religion, Vol. 8, No. 2, Spring 2007
NYLS Legal Studies Research Paper No. 06/07-25
Despite repeated setbacks in the lower courts, the politics surrounding anti-evolution efforts have never been more favorable for a renewed legal assault on the teaching of evolution in the nation's schools. The roughly twenty year cycle of Supreme Court evolution cases, the probable dilution by the Roberts Court of the Establishment Clause as a restraining force on government, the strength of the religious right in the American political arena, and the addition of two very conservative justices to the Court, each suggest that we may see a potent new challenge to the teaching of this topic reaching the Court in the near future.
The challenge may well succeed. Twenty years ago, legal arguments in favor of a Louisiana anti-evolution statute persuaded two Justices of the Supreme Court and seven judges of the Fifth Circuit Court of Appeals (sitting en banc) in the Edwards case. The dissenting opinion of Justice Scalia in that case might serve as a template for a new Supreme Court majority that appears to think very differently about the separation of church and state than Court majorities in the last half century.
But it is possible that the Establishment Clause may yet maintain sufficient strength to turn back the anti-evolutionists' next challenge. The crusaders against evolution are willing to grant religious proselytizers access to the nation's school children, to promote their particular view of Christian truth. A ruling by the Supreme Court vindicating those who would restrict the teaching of evolution would be a sign that the pluralistic religious freedom so highly valued in American history had become what Justice Robert H. Jackson once called "a mere shadow of freedom." This article examines in detail the nature of the legal arguments, considers the political surroundings that make this a vulnerable time for evolution's defenders, and identifies some factors which suggest how the current battle over evolution may yet be won by the proponents of science and reason. The article pays special attention to the attitudes and views of Justice Anthony Kennedy, who might cast a swing vote in any such case.
Number of Pages in PDF File: 53
Keywords: evolution, Darwin, intelligent design, establishment clause
Date posted: April 18, 2007
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