1. Ark. Stat. Ann. § 80-1663 et seq. (1981 Supp.), codifying Act 590 of 1981, Balanced Treatment for Creation-Science and Evolution-Science Act.

2. McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (E.D. Ark. 1982), noted in 11 Nw. U. L. Rev. 374 (1982) and 46 Alb. L. Rev. 897 (1982).

3. See, e.g., That Arkansas Law, Church & STATE, 02 1982, at 5Google Scholar.

4. See Creation Goes to Court, Newsweek, Dec. 21, 1981, at 57 (Balanced treatment bills have been introduced in at least eighteen states); Cole, & Scott, , Creation-Science and Scientific Research, 63 Phi Delta Kappan 557, 558 (1982)Google Scholar (in the past five years, “equal time” legislation introduced in nineteen states); Gilkey, , Creationism: The Roots of the Conflict, Christianity & Crisis, 04 26, 1982, at 108Google Scholar (“New and differently nuanced versions of the Arkansas Law, enacted or awaiting passage in other state legislatures, remain to be tested”); Lewin, , New Creationism Bill Already Drafted, Science, 12 11, 1981, at 1224Google Scholar (“A new improved draft creationist bill is circulating in legislatures throughout the country”); Judge Overturns Arkansas “Creationism”Law, Church & State, 02 1982, at 7Google Scholar (“Richard Bliss of the Institute for Creation Research … said he was looking forward to the trial in Federal Court in Louisiana”); Weak Creationist Bill Filed in Maryland, Science, November 13, 1981, at 773.

“Given the limited jurisdiction of the [McLean] court and the complexity of the issue, … the McLean decision does not totally resolve the controversy inherent in balanced treatment legislation.” Comment, 10 Ohio N.U.L. Rev. 145, 147 (1983).

Regarding the latest challenge to equal time laws, in Louisiana, see infra note 30.

5. “Paul Ellwanger, the architect of the [improved] draft bill, hopes the new version will avoid the problems now facing the Arkansas law.” Lewin, , New Creation Bill Already Drafted, Science, 12 11, 1982, at 1224Google ScholarPubMed. Thus, James Skillen's remark that “There is little likelihood that new arguments will enter the debate” is probably incorrect. Skillen, , Creation, Evolution, and the Courts, 5 Association of Public Justice Report, No. 5, 02 1982, at 1Google Scholar.

6. Judge Overturns Arkansas ‘Creationism’ Law, Church & State, 02 1982, at 7Google Scholar (“Richard B. Bliss of the Institute for Creation Research … charged that the Attorney General did not do his homework and was not competent to handle this kind of trial.”).

7. Id. (“Bliss … charged that the judge was biased.”).

8. 529 F. Supp. 1255 (E.D. Ark. 1982). See infra note 30. The lawsuit in Louisiana keeps the creation-science controversy in the news, and scholars continue to write about the scientific theories at issue. See, e.g., Scientists Confront Creationism (Godfrey, L. ed. 1983)Google Scholar (fifteen essays attacking creationism).

9. 529 F. Supp. 1255 (E.D. Ark. 1982). Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975), an earlier judicial examination of an “equal time” statute, did not address whether “creation-science” was a constitutionally appropriate subject for public school science classes. “McLean also represents the first case in which a court developed a legal definition of science.” Note, 77 Nw. U.L. Rev. 374, 389 (1982); see also Levit, , Creationism, Evolution and the First Amendment: The Limits of Constitutionally Permissable Scientific Inquiry, 14 J.L. & Educ. 211, 220 (1985)Google Scholar.

10. Aguillard v. Edwards, 765 F.2d 1251 (5th Cir. 1985).

11. See generally Shuchman, P., Problems of Knowledge in Legal Scholarship (1979)Google Scholar. The primary thrust of Shuchman's critique is that legal scholarship “too often assumes that the reported cases describe with reasonable accuracy another reality external to the opinions and, often enough for concern, assumes also that that reality is an instance of widespread and therefore significant practice. …” Id. at 3. Legal scholars generally “do not deal in, are not concerned with, facts as defined in those manners acceptable to any truth-seeking discipline, i.e., any more or less scientific enterprise. But they are concerned with what will pass and be accepted on the basis of standards and tests that bear little or no relation to truth-seeking and truth-finding.” Id. at 6. The “determination of what is the correct proposition to be induced from a reported case is, as many have pointed out, made not by better investigation but by reference to a later or more authoritative reported case from which legal scholars induce a different proposition.” Id. at 14. “Thus most of what is published in the law journals as legal scholarship is internal analysis.” Id. at 97.

12. Id. at 42-51. The “general rules of evidence … may very well be so restrictive and so distorting in effect as to make the goal or a reasonably good history nearly impossible to achieve, even were that the aim of litigation.” Id. at 43.

13. See, e.g., Jasanoff, & Melkin, , Science, Technology, and Limits of Judicial Competence, 6 A.B.A.J. 1094 (1982)Google Scholar; Bazelon, , Coping with Technology Through the Legal Process, 62 Cornell L. Rev. 817, 822 (1977)Google Scholar (“… almost [no judges] have the knowledge and training to assess the merits of competing scientific arguments.”); see generally P. Shuchman, supra, note 11.

The recent opinion in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983), illustrates well the theoretical struggles and difficulties experienced by the en banc U.S. Fifth Circuit Court of Appeals in a case involving calculation of damages with respect to inflation. Economic theories of inflation are notoriously problematic and complex, and economics scholars, much less appellate judges, cannot agree on a proper method of accounting for the effect of future inflation in personal injury damage rewards.

14. That is, because legal scholars are not always competent in one or several nonlegal disciplines, they should not hesitate to accept insights from outside the legal establishment.

Of course, this is neither a startling nor original proposition. The law and society movement, the law and economics school originally associated with the University of Chicago, the anthropology of law scholars, and the Conference on Critical Legal Studies have in recent years focused their efforts on interdisciplinary legal scholarship and criticism.

15. Infra note 118-81 and accompanying text.

16. The discussion in Section III of this article is obviously extra-legal, drawn mainly from the disciplines of history and philosophy of science. Although this emphasis may appear to limit the immediate utility of this article, I hope this study will nevertheless remain (i) quite practical for those involved in future creation/evolution or similar legal controversies (for example, other religion in education controversies), and (ii) yet another example, albeit modest, of introducing extra-legal analyses into legal scholarship.

The McLean and Aguillard opinions, and much of the literature about the legal creation/evolution controversy, seem somewhat circular in their reasoning. That is, if the premises concerning the nature of science and religion are accepted, then the result follows easily. However, as this article should illustrate, if religion is viewed broadly as pretheoretical or ideological commitment, and if science necessarily involves such commitment, the constitutional analysis is more difficult and the result less certain.

17. Blinderman, , Unnatural Selection: Creationism and Evolutionism, 24 J. Church & State 73, 73 (1982)CrossRefGoogle ScholarPubMed.

18. Id. at 73-75. An excellent history of the ensuing debate is now available in Larson, E., Trial and Error: The American Legal Controversy Over Creation and Evolution (1985)Google Scholar.

19. The conviction of John Thomas Scopes, a teacher in Dayton, Tennessee, for teaching evolution was overturned in the Tennessee Supreme Court on a technicality. See Scopes v. State, 289 S.W. 363 (Tenn. 1927).

20. Note, 77 Nw. U.L. Rev. 374, 378 n.22 (1982) (“The statute under which Scopes was convicted was finally repealed in 1967”); Ark. Stat. Ann. § 80-1627 et seq. (1929), struck down in Epperson v. Arkansas, 393 U.S. 97 (1968). See Wright v. Houston Indep. School Dist., 366 F. Supp. 1208 (S.D. Tex. 1972), aff'd per curiam, 486 F.2d 137 (5th Cir. 1973), cert. denied 417 U.S. 969 (1974) (injunction against teaching evolution denied and case dismissed); see also Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975) and Steele v. Waters, 527 S.W.2d 72 (Tenn. 1975) (Tennessee “equal emphasis” law found to violate establishment clause).

21. 636 F.2d 738 (D.C. Cir. 1980).

22. 636 F.2d at 740.

23. Sacramento Superior Court Case No. 278978 (ruling on June 12, 1981, Judge Irving H. Perluss). See generally, Colvin, T., Creationist Threatens Textbook Suit, San Diego Union, 11 16, 1982, page B-l, Col. 3Google Scholar.

24. 636 F.2d 738. The “judge ruled that educators must distribute a policy statement to schools and textbook publishers explaining that the theory of evolution should not be seen as ‘the ultimate cause of origins.’” Asimov, , The ‘Threat’ of Creationism, in Science and Creationism 183 (Montague, A. ed. 1984)Google Scholar, reprinted from The New York Times Magazine, June 14, 1981.

25. Phone interview with Kelly Segraves' office (Creation Science Research Center), January 10, 1983. See also, Colvin, supra note 23.

26. Courts Focus on New Evolution Debate, 66 A.B.A.J. 551-52 (1980).

27. Id. at 552.

28. S.2256(Miss. 1981). See Avent, K., State Taxpayers Would Pay Cost of Creationism in Schools, Court, Starkville Daily News, 01 30, 1982, at A-1, col. 1Google Scholar.

29. Hays, L., Orleans Board: Thumbs Down on Creationism, The Times-Picayune/States Item, 12 15, 1981, Sect. 1, at 15, col. 1Google Scholar.

30. A lawsuit against the State of Louisiana (and others) to declare the Louisiana balanced treatment act unconstitutional (under both the Louisiana and U.S. Constitutions) was filed December 2, 1981, in the U.S. District Court in Baton Rouge, Louisiana, by certain educators, parents, and religious leaders, joined by the Louisiana Board of Elementary and Secondary Education (by realignment as party plaintiff) and the Orleans Parish School Board. Aguillard v. Treen, No. 81-4787 (E.D. La. 1982). That action was stayed pending resolution of a separate action by the Act's sponsors and others for a judgment declaring the Act constitutional and an injunction to enforce the Act. Keith v. Louisiana Dept. of Educ, Civ. A. No. 81-989-b (M.D. La. 1982). Keith was dismissed on jurisdictional grounds on June 28, 1982. On November 22, 1982, in a summary judgement action in Aguillard v. Treen brought by the American Civil Liberties Union, the stay was lifted and judgment was awarded to the plaintiffs on the basis of the Act's unconstitutionality under Louisiana's Constitution. Aguillard v. Treen, No. 81-4787 (E.D. La. 1982), opin. by Judge Adrian Duplantier. The U.S. Fifth Circuit Court of Appeals, on appeal, certified that question to the Louisiana Supreme Court, vacating the District Court decision that only the Louisiana Board of Elementary and Secondary Education had authority to prescribe curriculum, and certification was accepted. 430 So. 2d 660 (La. 1983). On October 17, 1.983, the Louisiana Supreme Court ruled that the Act is constitutional under the Louisiana Constitution. Aguillard v. Treen, 440 So. 2d 704, 707 (La. 1983), rehearing denied Nov. 18, 1983 (the establishment of a particular curriculum is a question of the legislature's authority to establish and maintain education); see State Can Require Teaching of Evolution and Creationism, 70 A.B.A.J. 131 (1984). The Fifth Circuit then reversed and remanded to the district court (on November 10, 1983) with instructions to address the federal constitutional questions. Aguillard v. Treen, 720 F.2d 676 (5th Cir. 1983). Proponents of the Act hoped that the effect of the Louisiana Supreme Court ruling was that the case would move ahead to a full trial in the U.S. District Court, so long as the Act was not repealed. Lauter, D., Creation Science: What Next?, Nat'l L. J., 12 6, 1982, at 6Google Scholar, col. 2. On June 25, 1984, the Louisiana House of Representatives voted down an attempt at repeal of the Act (the Senate had voted in favor of repeal earlier that month.).

However, on January 11, 1985, the New Orleans federal district court in a 10-page opinion, entered a summary judgment ruling that the Act is unconstitutional. On appeal to the Fifth Circuit, the summary judgment was affirmed. Aguillard v. Edwards, 765 F.2d 1251 (5th Cir. 1985), see text accompanying notes 91-117 infra. That decision, also, was immediately appealed in a petititon for rehearing en banc which was denied by narrow (8-7) majority on Dec. 12, 1985. The proponents of the Act are confident of a reversal of that decision in their appeal to the U.S. Supreme Court, which should be heard within the next year.

31. Lewin, R., Weak Creationist Bill Filed in Maryland, Science, 11 13, 1981, at 773Google Scholar. “If enacted in its present form, the bill would not mandate creationist teaching but would merely allow it.” Id.

32. Contrary to creationists' usual tactics, the Maryland Bill does not carefully avoid religious overtones, and defines creationism to include the view that “matter and life were spontaneously created by a deity.” Id.

33. Ark. Stat. Ann. § 80-1663 et seq. (1981 Supp.).

34. Id. § 80-1663.

35. 529 F. Supp. at 1256-57. Plaintiffs included several denominational church groups and clergymen, a high school biology teacher, some parents of public school children, and various interested organizations. Id. at 1257.

36. 529 F. Supp. at 1273. While holding that individual teachers do not have “unlimited discretion” with regard to classroom subject matter, the court nevertheless suggested that such a “balanced” law would cause many teachers who do not consider creation-science sound to forego teaching evolution entirely, thereby depriving college-bound students of learning the “cornerstone of modern biology.” Id.

37. 529 F. Supp. at 1257, quoting Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).

38. 529 F. Supp. at 1264-72. Early in the opinion, the court stated that the case was to be judged under the three-part test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13, (1971):

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 government entanglement with religion.’

529 F. Supp. at 1258. “Failure on any of these grounds is fatal to the [Arkansas] enactment.”

Id.

39. 529 F. Supp. at 1259.

40. Id. See supra note 20.

41. 529 F. Supp. at 1259.

42. Id. The term “scientific creationism” refers not to the Genesis account of creation, which is a religious text, but rather to research resulting in scientific evidence in support of the theory of created matter and life, that is, evidence of the sudden appearance of various complex life-forms, or evidence of a young earth.

43. The court observed:

Perhaps the leading creationist organization is the Institute for Christian Research (ICR) … in San Diego … The ICR … is the leading publisher of creation science material. Other … organizations include the Creation Science Research Center (CSRC) of San Diego and the Bible Science Association of Minneapolis, Minnesota. In 1963, the Creation Research Society (CRS) was formed … ‘to reach all people with the vital message of the scientific and historic truth about creation.’

529 F. Supp. at 1259-60 (citations omitted). Such organizations not only view many evolutionary principles as unscientific, but also consider the general theory of evolution as a philosophically dangerous position wherein humanity loses its meaning and its traditional moral basis in relation to a creator God. 529 F. Supp. at 1260, citing Morris, & Clark, , The Bible Has the Answer (1976)Google Scholar.

44. 529 F. Supp. at 1260.

45. Id. at 1261.

46. Id. at 1264.

Section 4 of the Act provides:

Definitions. As used in this Act:

(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.

Id.

47. Gish, D., Evolution—The Fossils Say No! 40 (1981)Google Scholar.

48. 529 F. Supp. at 1264; Section 4(d) of the Act provides:

‘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) emergency 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.

Id.

49. 529 F. Supp. at 1261, quoting Paul Ellwanger in a letter to Robert Hays.

50. Id. at 1261. Compare with Aguillard; see infra notes 94, 105-16 and accompanying text. Ironically, the anti-evolutionist prosecutors in Scopes argued, in response to the defense that evolution is not inconsistent with the Bible, that evolution was not on trial. Larson, supra note 18, at 68.

51. Id. at 1267.

52. Id. at 1260. This situation may change as the creation-evolution conflict continues if the scientific creationists gain the support of non-Christian anti-evolutionists.

53. See Lewin, , Where is the Science in Creation Science?, Science, 01 1982, at 142–46Google ScholarPubMed. Of course, other religions have creation accounts, but the creation-science movement in the West is inspired by Judeo-Christian texts.

54. 529 F. Supp. at 1260.

55. Id. at 1261.

56. Id. at 1261, quoting a letter from Paul Ellwanger to State Senator Carlucci of Florida.

57. Id.

58. Id. (emphasis added).

59. Id. at 1262.

60. Id.

61. Id. at 1262-63.

62. Id. at 1263.

63. Id. (citing Stone v. Graham, 449 U.S. 39 (1980)).

64. Id. at 1264.

65. Id.

66. Id.

67. Id. at 1264-65.

68. Id. at 1265. See also Comment, 10 Ohio N.U.L. Rev. 145, 155 (1983) (“Religious teachings and philosophies pervade creation science”).

69. 529 F. Supp. at 1266 & n.23 (“The idea that the belief in a creator and acceptance of the scientific theory of evolution are mutually exclusive is a false premise”). The bill's opponents included clergymen who pointed out that many evolutionary scientists are devout Christians.

70. Id. at 1267.

71. Id.

The court described the essential characteristics of science as follows:

(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.

According to the court, the idea of a sudden creation is not science because it depends upon a supernatural intervention which is not guided by natural law. It is not explanatory by reference to natural law, is not testable and is not falsifiable.

Continuing its assessment, the court rejected the creation-scientists' methods because they do not appear to take data, weigh it against the opposing scientific data, and thereafter reach the conclusions that they support. This, however, oversimplifies the questions involved. As to origins, the creationists, in their own literature, state that any position concerning the origin of life is necessarily religious. On the other hand, with respect to whether and how species evolve into one another, creation-scientists attempt to present evidence that such changes have not occurred. The fact that the creation-scientist holds a strong belief as to the outcome of his experiments is not necessarily fatal to his methodology.

Legions of commentators, many cited herein, have echoed McLean's definition of science and repeated the analysis that creation-science is not science. See, e.g., Levit, supra note 9, at 220-22. Yet, for some philosophers and historians of science, the very concept of “laws of nature” is “both a product and an expression of the absence of reflectivity.” Keller, E. Fox, Reflections on Gender and Science 131 (1985)Google Scholar; see id. at 129-38. Even the “empirical world” against which theories are tested is a product of interpretation within a context or paradigm. See infra Section III. The statement that science deals with the objectively verifiable, Note, 46 Alb. L. Rev. 897, 927-28 (1982), is commonplace but problematic. An alternative perception among many scholars is that science is ideological, objectivity or neutrality is a myth, and verification involves facts “above and beyond empirical evidence and theoretical necessity.” Keller, supra at 5.

72. 529 F. Supp. at 1268.

73. Id. The court here betrayed some unfamiliarity with the history and philosophy of science. Revolutionary ideas are rarely accepted by the scientific community without great hesitation. See infra notes 118-81 and accompanying text.

74. 529 F. Supp. at 1270.

75. Id. at 1272. The second prong of the three-prong test (secular purpose, nonreligious primary effect, no government entanglement) was thus fatal to the bill.

76. Id.

77. Id. at 1273.

78. Id. at 1273-74. “Yet it is clearly established in the case law, and perhaps also in common sense, that evolution is not religion. …” Id. at 1274.

79. Id. at 1274.

80. Geisler, , Creationism: A Case for Equal Time, Christianity Today, 03 19, 1982, at 27Google Scholar.

81. 529 F. Supp. at 1267.

82. Id.

83. Id.

84. “Our knowledge of the evolution of plants and animals is based on a factual set of observations. … However, we have no such set of observations concerning the development of the first living cells on the planet.” Miller, Scientific Creationism versus Evolution, in Science and Creationism, supra, note 24, at 57. “It may well be true that most scientists agree that a scientific solution to the problem of life's origin is nowhere in sight.” Fox, Creationism and Evolutionary Protobiogenesis, in Science and Creationism, supra, note 24, at 208. “I am sure that there are many more questions about ultimate origins than about evolution. Even if one had no idea whatsoever about how life originated, it could still be reasonable to believe in evolution.” Ruse, A Philosopher's Day in Court, in Science and Creationism, supra note 24, at 330.

It must be emphasized that the above quotations came from scholars who are not friends of creationists, and from works highly critical of creationism. By removing the question of the origin of life from the creation/evolution debate, the evolutionists are at their best as scientists, especially since evolution “within kinds” is already acknowledged by creationists. On the other hand, creationists are at their worst, because evolutionists appear unspeculative and the idea of creation of life (origins!) is not even an issue. In a sense, that captures McLean.

85. See Lewin, , Where is the Science in Creation Science?Science, 01 8, 1982, at 142–46Google ScholarPubMed. For example, Harold Coffin, of the Geoscience Research Institute, Loma Linda University, California, presented testimony concerning the fossil records in support of creation-science. The initial cross-examination focused on Coffin's scientific credibility:

‘Q. You have had only two articles in standard scientific journals since getting your Ph.D. in 1955, haven't you?

A. That's correct.’

Next, Coffin was asked:

‘Q. If you didn't have the Bible you could believe the age of the earth to be many millions of years, couldn't you?

A. Yes, without the Bible.’

Donald Chittick, a physical chemist from Oregon and an expert witness for the defense in the trial, testified at length concerning evidence for a young earth and a worldwide flood. Cross-examination proceeded:

‘Q. You have had no formal course in radiometric dating for 20 years, have you?

A. Not since then.

Q. You have never published an article on radiometric dating, have you?

A. Yes.

Q. You have had only one article in a refereed journal since 1960, isn't that correct?

A. Correct.'

Chandra Wickramasinghe, an Indian mathematician, had been flown in by the Arkansas Attorney General's office to be the star witness, because he did not believe in the spontaneous origin of life from nonlife (he believes that a Creator seeded the earth with microorganisms). Cross-examination closed with the following questions:

‘Q. Could any rational scientist believe that the earth's geology can be explained by a single catastrophe?

A. No.

Q. Could any rational scientist believe that the earth is less than one million years old?

A. No.'

Lewin, supra. Michael Ruse, another expert witness, has described the tremendous support given to the ACLU by Skadden, Arps' attorneys and staff, as well as the extensive preparation (“a combination of theatre and philosophical symposium”) of the witnesses. Ruse, infra note 87, at 319, 238.

86. See supra notes 4 and 5.

87. There is a religious aspect not only to evolutionary theory, but to any scientific theory. Philosophers of science have consistently recognized that natural science discloses an aspect of faith or belief in certain presuppositions in the scientific enterprise itself. Michael Polanyi, in his Science, Faith and Society (1946), has remarked:

The premises of science on which all scientific teaching and research rests are the beliefs held by scientists on the general nature of things.

The influence of these premises on the pursuit of discovery is great and indispensible. They indicate to scientists the kind of questions which seem reasonable and interesting to explore, the kind of conceptions and relations that should be upheld as possible, even when some evidence seems to contradict them, or that, on the contrary, should be rejected as unlikely, even though there was evidence which would favour them.

The premises of science are subject to continuous modifications. … Every established proposition of science enters into the current premises of science and affects the scientist's decision to accept an observation as a fact or to disregard it as probably unfounded. [The history of Physics] refutes the widely-held view that scientists necessarily abandon a scientific proposition if a new observation conflicts with it.

… Stephen Toulmin has shown systematically that the framework of scientific theory contains general suppositions which cannot be put directly to an experimental test of truth or falsity.

Id. at 11-12. Ashley Montagu's statement that science “cannot by any stretch of the imagination be referred to as a religion” oversimplifies the issue. “Introduction” in Science and Creationism, supra, note 24, at 9. Significantly, Michael Ruse, in his excellent summary of the plaintiff's presentation in McLean, A Philosopher's Day in Court, in Science and Creationism, supra, note 24, at 311-42, suggests that the issue of the creationist's claims about the religious nature of Darwinism was not covered by the defendants during cross-examination because of the fear of losing face (as the creationists did during most of the cross-examinations). Id. at 323, 334 (L. Harrison Matthews, an elderly British zoologist, wrote in an introduction to Origin of Species that belief in Darwinism is like a religious commitment; this statement would have been used by the defense, but on Ruse's request Matthews wrote a strong letter about the misuse creationists have made of the statement).

My understanding of the religious aspect of science, I think, is to be distinguished from the typical creation-scientist's understanding as set forth by Wendell Bird:

In fact, evolution may be presented either in scientific terms as a scientific explanation (evolution-science) or in religious terms as theological doctrine (evolutionist religions).

Creation-Science and Evolution-Science in Public Schools: A Constitutional Defense under the First Amendment, 9 N. Ky. L. Rev. 159, 194 (1982)Google Scholar. I would agree, but I would go further and identify a religious or ideological aspect even of “evolution-science.” See infra notes 182-88 and accompanying text.

88. See, e.g., Bitfurth, H., The Origins of Life: Evolution as Creation (1981)Google Scholar. This is not to say that the origin of evolutionary theory is found in biblical Christianity. The term “religious belief” should not be limited to established world religions, but rather should apply to any foundational belief system which provides a basis for morality, meaning, and knowing.

The United States Supreme Court's traditional definition of religion involved a belief in a “creator,” Davis v. Beason, 133 U.S. 333 (1890); or a relationship with God, U.S. v. McIntosh, 283 U.S. 605 (1931), overruled, Girouard v. U.S., 398 U.S. 61 (1946). However, beginning in the 1940's, the federal courts began to broaden and diversify the definition of religion, until by the end of the 1960's the judicial definiton of religion was altered from sustenance of belief—belief in an obligation owed to the “creator”—to the impact of the belief on the life of the person expressing and holding it. Whitehead, & Canlan, , The Establishment of the Religion of Secular Humanism, 10 Texas Tech. L. Rev. 1, 10 (1978)Google Scholar. Therefore, it is a legal misconception to define religion as a belief in the Christian God. The court has since 1961 included Buddhism, Taoism, ethical culture, and even secular humanism as religions. Slowly, the idea developed that it was not a supreme being, but an ultimate concern that gives meaning and orientation to a person's whole life, that is the indication of religious belief. Id. at 13.

89. 529 F. Supp. at 1268.

90. “Normal science, the activity in which most scientists inevitably spend most of their time, is predicated on the assumption that the scientific community knows what the world is like. Much of the success of the enterprise derives from the community's willingness to defend that assumption, if necessary at considerable cost. Normal science, for example, often suppresses fundamental novelties because they are necessarily subversive of its basic commitments.” Kuhn, T., The Structure of Scientific Revolutions 5 (2d Ed. 1970)Google Scholar. Compare Miller, supra, note 84, at 19-20: “We take great care that scientific meetings are open to all who wish to present their theories; we provide careful levels of appeal and review for those who object when a paper is not accepted or a grant request declined…. [The creationists] have not availed themselves of the open platforms….”

91. La. Rev. Stat. Ann. § 17:286.1 to .7 (1981).

92. Aguillard v. Edwards, 765 F.2d 1251 (5th Cir. 1985). The Louisiana Act requires that creation-science be taught whenever evolution is taught in Louisiana public schools, and prohibits discrimination against creation-science teachers.

93. Id. 1254. The plaintiffs argued that the Louisiana Act is an effort to incorporate biblical creation theory into public school curriculum; the state contended that the purpose and effect of the statute is to promote academic freedom, a legitimate secular interest. Id.

94. Id. at 1253. The court also acknowledged the importance of the history of the evolution/creation controversy, although the date of the Scopes trial is not “1927,” the date cited by the court (and the date of the Tennessee Supreme Court Opinion) but 1925.

95. Section 17.286.3(2) of the Louisiana Act (definition of “creation-science”).

96. That is, what is creation-science?; is it nonreligious?; is it scientific and teachable? The Appellants' brief suggesting rehearing en banc states that the Fifth Circuit affirmed “while never describing the district courts' decision as a summary judgment, never acknowledging the uncontroverted status or content of the State's affidavits [which discussed facts showing that creation-science is nonreligious and scientific], never addressing the other factual allegations, and never responding to the State's authorities that summary judgment was reversible error.” Appellant's Brief on Suggestion for Rehearing En Banc, at 2. See Fed. R. Civ. P. 56(c).

97. 765 F.2d at 1254. Thus, the purpose of the Louisiana Act was to promote religion, and implementation would establish religion.

98. Id.

99. Id. at 1255. Of course, this “right is limited to the extent that [the State] may not compel … the teaching of a theory of doctrine for religious purposes.” Id., citing Epperson v. Arkansas, 313 U.S. 97, 107 (1968).

100. 765 F.2d at 1254.

101. Id. at 1255 (citing McCollum v. Board of Education, 337 U.S. 203, 235-36 (1948)).

102. 765 F.2d at 1255.

103. See supra note 38.

104. 765 F.2d at 1256.

105. Id. at 1256. See accompanying text supra note 94-95.

106. The court referred not only to the problems that fundamentalists have had with evolution, but also noted that creation theory is embraced by many religions. Id.

107. 765 F.2d at 1256. Interestingly, the court also said it would examine the Louisiana Act “to determine whether it, in reality, establishes a religious belief.” Id. Arguably, this question is outside the court's “secular purpose” analysis, but it is within the Lemon analysis generally. This appears to be a mistake, or at least a slip of the pen, in the opinion.

108. Id. Nor are the “self-serving statements made in the legislative hearings by the Act's sponsor and supporters” sufficient. Id.

109. Id. at 1257. “Academic freedom embodies the principle that individual instructors are at liberty to teach that which they deem to be appropriate in the exercise of their professional judgment.” Id. Therefore, the Louisiana Act's interference with such freedom, by compulsion to teach creation-science when evolution is taught, is contrary to its stated purpose. Significantly, the Court's rule is applicable at the university level and is generally not a public school principle. Zykan v. Warsaw Comm. School Corp., 631 F.2d 1300 (7th Cir. 1980); Palmer v. Board of Education, 603 F.2d 1271 (7th Cir. 1979), cert. denied, 444 U.S. 626 (1980); Keyishian v. Board of Regents, 385 U.S. 589 (1969).

The court also noted that creation-science is not promoted as an academic discipline by the Louisiana Act, because it only requires the teaching of “creation theory … if the theory of evolution is taught.” Given the popularity of evolution theory, this argument is disingenuous; obviously, balanced treatment is more than enough for creation-science.

110. 765 F.2dat 1257.

111. Id. This, too, is an interesting basis for the decision: since evolution is historically the “enemy” of religious fundamentalists, the Louisiana Act can be seen as a continuation of a religious crusade. See accompanying text supra note 58.

112. 765 F.2dat 1257.

113. Id.

114. Id. “Nothing in an opinion today should be taken to reflect adversely upon creation-science … as … scientific theory.”

115. Whether there was a secular purpose is, of course, a factual issue, and together with the other factual issues, see supra note 96, suggests that reversal may yet be obtained from the United States Supreme Court. Judge Gee, in his dissent (joined by six other judges) to the denial of suggestion for rehearing en banc, attacks the panel opinion for its implied ruling that if a teacher's motive is religious, she cannot teach what could be legally taught with secular motives. 778 F.2d 225, 227 (5th Cir. 1985).

116. 765 F.2dat 1257.

117. Id.

118. Capra, F., The Tao of Physics 15 (1977)Google Scholar.

119. Suppe, F., The Search for Philosophic Understanding of Scientific Theory, in The Structure of Scientific Theories 4 (1974)Google Scholar.

120. Id. at 3.

121. See infra notes 145-50.

122. Radnitzky, G., Popperian Philosophy of Science as an Antidote Against Relativism, Essays in Memory of Imre Lakatos (ed. Cohen, , 1976), at 505CrossRefGoogle Scholar.

123. Suppe, supra, note 119, at 125.

124. Id.

125. Id.

126. Id. at 126.

127. See generally Reichenbach, H., Experience and Prediction (1938)Google Scholar.

128. Scheffler, I., Science and Subjectivity 72 (1967)Google Scholar.

129. See generally Konigsveld, H., Het Verschijnsel Wetenschap 58–91 (1976)Google Scholar.

130. Lakatos, , History of Science and Its Rational Reconstructions, 8 Boston Studies in the Philosophy of Science 2–4 (1971)Google Scholar. Interestingly, George Marsden characterizes fundamentalists as inductivists in their view of science. Marsden, Understanding Fundamentalist Views of Science, in Science and Creationism, supra, note 24, at 97. At last, it appears, Judge Overton and the creationists have something in common.

131. Fricke, , The Rejection of Avogadro's Hypothesis, in Method and Appraisal in the Physical Sciences 299 (ed. Howson, 1976)Google Scholar. Examples of such myths include poor experimental techniques or unreliable instruments. Id. at 301-05.

132. Wellmer, A., Critical Theory of Society 13 (1971)Google Scholar. See supra notes 185-88 and accompanying text.

133. Adorno, , Introduction, in The Positivist Dispute in German Sociology, 6 (1976)Google Scholar.

134. Id. at 5-8.

135. Id. at 27-29.

136. Id. at 58.

137. That is, the knowledge that is useful for technology is seen as Truth, and technological progress legitimates present scientific activities.

In the Neo-Marxian perspective, the present industrial system is also legitimated with every step of “knowledge.” The scientific and technological principals which claim to be neutral “servants” actually comprise a social-theoretical position that hides its interest in one class and repression of another. In this perspective, technology produces the illusion of necessity and rationality, while in actuality it is supported by a radical mythology. Thus “the great discoveries of applied science are paid for with an increasing diminution of theoretical awareness.” Horkheimer, M. & Adorno, T., Dialectic of Enlightenment xi (1969)Google Scholar.

138. In the words of one historian,

Natural scientists are acutely aware of the rapid pace of change in their own subjects, and they know very well that research articles and text books become out-of-date very quickly. But they often express surprise when they are told that the history of science is a field which is changing equally rapidly. Most text books in the history of science have been left far behind the best recent thinking in the subject; and even research articles published a few years ago are often almost useless on the level of historical intepretation and understanding. In effect, the ways we study science historically have been changing as radically in the last 25 years as biological science has been changed by molecular biology ….

Rudwick, , The History of the Natural Sciences as Cultural History, Inaugural Address, Vrije Universiteit te Amsterdam, 05 23, 1975, at 5Google Scholar.

139. Kisiel, , Scientific Discovery: Logical, Psychological, or Hermeneutical?, in Explorations in Phenomenology (ed. Carr, & Casey, , 1973), at 266Google Scholar. One may question the radicality of this perspective, given that Kuhn's term “paradigm” has become popular as an explanatory concept in recent years in the natural and social sciences.

140. Id. at 265.

141. Rudwick, supra note 138 at 5.

142. Id. at 7.

143. Id. at 17, 19. Notably, some creationists have argued that belief in evolution is directly related to atheism and the loss of moral foundations in our culture. See supra note 43.

144. Radnitzky, supra note 122 at 505.

145. See, e.g., Kuhn, T., The Structure of Scientific Revolutions (1970)Google Scholar.

146. Toulmin, S., The Philosophy of Science (1953)Google Scholar.

147. Hanson, N. R., Patterns of Discovery (1958)Google Scholar.

148. Popper, K., Conjectures and Refutations (1963)Google Scholar; Objective Knowledge: A N Evolutionary Approach (1972); The Logic of Scientific Discovery (1959).

149. Feyerabend, P., Against Method (1975)Google Scholar.

150. Suppe, supra note 119 at 126.

151. Id.

152. Popper, K., Reply to My Critics, The Philosophy of Karl Popper 1081–82 (Schilpp, ed. 1974)Google Scholar.

Wendell Bird has argued that although “both creation-science and evolution-science as overall paradigms are nonfalsifiable, specific elements and predictions of both … are falsifiable.” Creation-Science and Evolution-Science in Public Schools: A Constitutional Defense under the First Amendment, 9 N. Ky. L. Rev. 159, 175 (1982)Google Scholar, citing Popper, K., Unended Quest 151 (1976) (limited falsifiability of evolution-science)Google Scholar.

153. Popper, K., Objective Knowledge 177 (1972)Google Scholar. Here Popper allows a historical problem situation to stand on its own. He introduces the term “situational logic” to describe “tentative or conjectural explanation of some human action which appeals to the situation in which the agent finds himself.” Id. at 179. As he explains:

We can try … to give an idealized reconstruction of the problem situation in which the agent finds himself, and to that extent make the action understandable, that is to say, adequate to his situation as he saw it. Id.

154. Id. at 171.

155. Id. at 174.

156. Id.

157. Kuhn, , Logic of Discovery or Psychology of Research and Reflections on My Critics, in Criticism and the Growth of Knowledge (Lakatos, I. & Musgrave, A. eds. 1972) at 1-24, 231–78Google Scholar. “Kuhn's argument, originally so provocative, has come to seem commonplace—even, to many, too cautious.” Keller, E. Fox, Reflections on Gender and Science 5 (1985)Google Scholar.

158. Worrall, , Imre Lakatos (1922-1974): Philosopher of Mathematics and Philosopher of Science, in Essays in Memory of Imre Lakatos (1976), at 26Google Scholar.

159. Id.

160. Id. This mild form of paradigm theory is commonplace. For example, assume creation-scientists convincingly identify an anomaly in evolutionary biology:

But proven anomalies do not lead one to cease believing in an entire scientific field. Instead, anomalies suggest that there exists a larger, more inclusive paradigm, capable of explaining not only the anomalies, but also all of the older inclusive data seemingly at odds with the anomalies, within a new, broader theoretical framework.

Davidson, & Wilson, , Wendell Bird's “Creation-Science”—“Newspeak” in the Assault on the Secular Society, 9 N. Ky. L. Rev. 207, 224 (1982)Google Scholar, compare note 193 infra. A more radical paradigm theory would acknowledge that a “proven” anomaly casts doubt on all of science, that the “larger, more inclusive paradigm” is historically relative, and that the older data is “ideational.” See infra note 161 and text accompanying.

161. P. Feyerabend, supra note 149, at 19. As a result of such scholarship, “discourse about science continues for the most part on two noncommunicating levels: one an increasing radical critique that fails to account for the effectiveness of science, and the other a justification that draws confidence from that effectiveness to maintain a traditional, and essentially unchanged philosophy of science.” Keller, supra note 157, at 6.

162. Feyerabend, supra note 149.

163. Id. “Given science, reason cannot be universal and unreason cannot be excluded.” Id.

164. Hermeneutics, as a discipline, refers traditionally to the interpretation of theological or other literary texts. The term “hermeneutics of natural science” simply refers to the interpretation of science in accordance with its historical context, much as a text is understood. Refer to notes 173-81 infra and accompanying text.

165. Kisiel, Hermeneutic Models for Natural Science, at 2 (a paper prepared for a conference in Berlin, April 23-26, 1974).

166. Id. at 1.

167. Id. at 3. Consequently, the argument that evolutionists are devoted to “rigorous empirical analysis” and “are prepared to switch their allegiance [to the theory of evolution] as soon as the evidence suggests a different and improved explanation,” Comment, 15 J.L. Ref. 421, 436 (1982), is somewhat beside the point if the “evidence” is assessed by tacit standards that rule out, in advance, certain types of evidence as unacceptable or useless.

168. Peter Krausser equates “explanation” in the natural sciences with interpretation of “understanding” in the hermeneutic tradition. Instead of conceiving the unity of the sciences in their common acceptance of the positive, natural scientific method, one may now posit the possibility that all science is interpretive. Thus,

… it seems now that if we can have relative unification or unity of the sciences at all in respect to ‘verstehen’ and ‘explanation’ then it is much more likely that explanations may be shown to be special forms or cases of verstehen.

Krausser, , A Cybernetic Systems Theoretical Approach to Rational Understanding and Explanation …Ratio, 12, 1973, at 22Google Scholar.

169. See note 145, supra.

170. See note 130, supra.

171. See note 146, supra.

172. Radnitzky, G., Contemporary Schools of Metascience (1973)Google Scholar.

173. Fish, S., Is There a Text in This Class? 1 (1980)Google Scholar. Compare Professor John Wheeler's remark regarding science: “The past only exists insofar as it is present in the records of today. And what those records are is determined by what questions we ask.” Gliedman, , Turning Einstein Upside Down, Science Digest, 10 1984, at 64 (quoting Wheeler)Google Scholar.

174. Id. at 2.

175. Id. at 3. Compare George Marsden, supra note 130, at 110:

[Modern, post-Kantian] thought … gradually [came] to view the human mind as imposing its categories on reality. Perception itself in this view is an interpretive process. Truth, moreover, is relative to the observer and to the community or culture of the inquirer. Speculative theorizing is essential, since human thought in any case involves such imposing of one's constructs on reality.

176. Fish, supra note 173, at 4-5.

177. Id. at 11.

178. Id. at 13.

179. Id. at 14.

180. Habermas, J., Toward a Rational Society 94–95 (1970)Google Scholar.

181. Id.

182. Kuhn, T., The Structure of Scientific Revolutions 157–59 (1970)Google Scholar.

183. U.S. v. Seeger, 380 U.S. 163, 176 (1965). The “religious dimension is not an extraordinary, additional, dispensible, committed way of looking at things for those who are so disposed (in contrast to ordinary, inherent, indispensible, neutral ways of being in the world). The religious way of being in the world is one of the ordinary, necessary … ways of experience which everyone realizes, … consciously or unconsciously, articulately or inarticulately.” Olthuis, “Visions of Life and Ways of Life: The Nature of Religion,” at 3 (ICS booklet, undated, Toronto).

184. 380 U.S. at 187.

185. Longino, , Books in Review, Texas Humanist, 07-Aug 1985, at 37Google Scholar.

186. See generally Keller, E. Fox, Reflections on Gender and Science (1985)Google Scholar.

Keller begins with a Kuhnian approach to ideology and science:

Ideology makes itself felt principally in the process by which particular styles, methodologies, and theories come to be legitimated as ‘good science.’ Certain theories and methods are selected as ‘best’ by a process in which scientists collectively choose among competing methodological and theoretical candidates. The criteria for such choices are complex. Inevitably, the question is not simply which theory offers the fullest explanation, the best prediction, but also which theory best satisfies a host of unspecified ‘aesthetic’ criteria …—including which theory is most consonent with one's implicit ideological and emotional expectations.

Id. at 126. Her feminism led her to “see the network of gender associations” in science as “not just ornamental images on the surface of scientific rhetoric,” but rather as “deeply imbedded in the structure of scientific ideology, with recognizable implications for practice.” Id. at 12.

The fact is that gender ideology does not operate as an explicit force in the construction of scientific theories. Its impact (like that of ideology in general) is always indirect: in the formation and selection of preferred goals, values, methodologies, and explanations.

Id. at 137.

187. Id. “The task of explaining the associations between masculine and scientific thus becomes … the task of understanding the emotional substructure that links our experience of gender with our cognitive experience.” Id. at 80. Keller, does, however, argue for a modified account of objectivity freed from the masculine “domination” associations. Id. at 115-26.

188. Longino, supra note 185, at 37.

189. 529 F. Supp. at 1267.

190. Id. at 1274.

191. In addition to the Creation Research Society, The Institute for Creation Research in San Diego is a research center and educational institution whose faculty and students have adopted the creation-science perspective.

192. See, e.g., Morris, H. & Parker, G., What Is Creation Science? (1982)Google Scholar.

193. Interview with Professor John N. Moore, March 22, 1983. One reason that revolutionary scientists can't publish during a “paradigm conflict” is that they differ with the establishment as to what counts as “facts.” Marsden, supra, note 130, at 109. Moreover, “the two sides, because of their differing presuppositions, models, or paradigms, have differing languages. Communication is nearly impossible and each party thinks that members of the other are virtually crazy or irremediably perverse. Neither thinks the other is doing ‘science’ at all.”

Id.

194. See H. Morris & G. Parker, supra note 192, at 74-76 (1982). The term “kinds” is problematic in the creation/evolution controversy. What is Creation Science? “Unless ‘kind’ can be defined in an operationally testable manner … no research can be conducted either to verify or falsify the creationist claim.” Root-Bernstein, infra note 195, at 76. “In nearly two weeks of testimony, no scientist, whether ‘creation’ or otherwise, could enlighten the court as to the exact meaning of ‘kind.’” Lyons, Repealing the Englightenment, in Science and Creationism, supra note 24, at 354.

195. See generally Kuhn, supra note 116.

Robert Root-Bernstein has stated that “creationism cannot and does not provide scientists with a problem-solving model or ‘paradigm’ by which to understand nature,” because of the creationist's position that the Creator's powers are unknown and can't be “modeled, duplicated, or explained.” On Defining a Scientific Theory: Creationism Considered, in Science and Creationism, supra note 24, at 75.

Some critics of creation-science, however, use the term “creationist paradigm” to refer to the creation-science model. Raup, D., The Geological and Paleontological Arguments of Creationism, in Scientists Confront Creationism 154 (Godfrey, L. ed. 1983)Google Scholar.

196. Id. at 37.

197. Id. at 66-76.

198. See generally Morris & Parker, supra note 192.

199. Shenke, , After 340 Years, Galileo May Beat the Inquisition, The Smithsonian, 08 1981, at 90–96Google Scholar.

But see Koestler, , The Greatests Scandal in Christendom, The Observer Weekend Review, London, 02 2, 1964, at 21, 29Google Scholar, where Arthur Koestler argues that Galileo was not simply the innocent victim of rigid orthodoxies, but was compulsively self-destructive, vindictive, and antagonizing toward the theological authorities of his day.

200. Shenke, supra note 199, at 96.

201. Harding, , No Fair Hearing, Liberty, 07/August 1981, at 11Google Scholar.

202. Id.

203. Carl Sagan, television series “Cosmos.” This statement is vague and difficult to understand. If Sagan means evolution has occurred, he is correct and few would disagree. If he means that any speculation based upon factual instances of micro-evolution is not theory, few would agree.

Evolutionist literature typically distinguishes between evolution (genetic transformations in population resulting in varieties in animal and plant forms wherein descendants differ from their predecessors) as a fact and theories concerning the mechanisms of evolution (natural selection, etc.). Montagu, Introduction, in Science and Creationism, supra note 24, at 4, 13; Fox, supra note 84, at 209; Stent, Scientific Creationism: Nemesis of Sociobiology, in Science and Creationism, supra note 24, at 139. However, evolution is also referred to as a valid or genuine scientific theory. Root-Bernstein, supra note 195, at 71-71; Ruse, supra note 85, at 322. Stephen J. Gould states that evolution is a theory (that explains and interprets) and a fact (“Facts are the world's data”). Evolution as Fact and Theory, in Science and Creationism, supra note 24, at 118 (“… humans evolved from ape-like ancestors whether they did so by Darwin's proposed mechanism or by some other yet to be discovered”). However, fact “doesn't mean ‘absolute certainty’…. Evolutionists make no claim for perpetual truth…. In science, ‘fact’ can only mean ‘confirmed to such degree that it would be perverse to withhold provisional consent.’” Id. at 118-19.

204. See generally Barbour, I., Myths, Models and Paradigms (1976)Google Scholar. Even Carl Sagan agrees that the “suppression of uncomfortable ideas may be common in religion and politics, but it is not the path to knowledge, it has no place in the endeavor of science. We do not know in advance who will discover fundamental new insights.” COSMOS 91 (1980).

“Scientists do not believe in fundamental and absolute certainties.” Montagu, supra note 203, at 7. “The details of evolutionary theory are in dispute precisely because scientists are not devotees of blind faith and dogmatism…. Even after accepting an idea, they stand ready to overrule it, if appropriate new evidence arrives.” Asimov, supra, note 24, at 186. “The very process of science thrives on disagreement. Without it any science loses its vigors and dies.” Niles Eldridge, quoted in Gallant, To Hell with Evolution, in Science and Creationism, supra, note 24, at 294. “Always we must emphasize the tentative nature of much of the knowledge of science, and its susceptibility to change.” Gallant, supra, at 303.

205. Harding, supra note 201, at 11.

206. That is, there is no attempt to see the world in a radical new manner, but rather an attempt to return to what is perceived to be true science including a harmonious acceptance of both the Bible and the “Book of Nature.”

207. The majority of the scientific establishment is probably not sympathetic to the Bible as a source of scientific ideas. Nevertheless, it is interesting to note that in a recent Associated Press—NBC New Poll (1981), 86 percent of those questioned believed that both evolution and creation should be taught in public schools.

208. Some of the literature associated with the Conference on Critical Legal Studies (or the Critical Legal Studies “movement”) emphasizes the courts' role in legitimizing cultural myths. See, e.g., Gabel, , The Mass Psychology of the New Federalism: How the Burger Court's Political Imagery Legitimizes the Privatization of Everyday Life, 52 G. Wash. L. Rev. 263, 265 (1984)Google Scholar:

The objective of the Supreme Court is to pacify conflict through the mediation of a false social-meaning system, a set of ideas and images about the world which serve today as the secular equivalent of religious ideology in previous historical periods… [The] objective is to maintain a relatively coherent, though false, sense of social-meaning and connection.

209. See generally Harding, supra note 201.

210. 529 F. Supp. at 1268.

211. Polanyi, M., Science, Faith & Society 16 (1964)Google Scholar.

Enforcement of discipline, combined with inducement to defense, is also exercised by science in controlling the resources of scientific research and the organs of scientific publicity. A contribution to science is accepted only if, in the light of scientific beliefs about the nature of things, it appears sufficiently plausible. Only thus can contributions of cranks, frauds and bunglers be prevented from flooding scientific publications and corrupting scientific institutions.

Id.

212. Bronowski, J., Ascent of Man 353 (1974)Google Scholar.

It is true that scientists have often been dogmatic and elitist. Gould, supra note 203, at 124. Scientists “need to remember … that their language should exhibit a greater humility than it frequently does.” Boulding, Toward an Evolutionary Theory, in Science and Creationism, supra note 24, at 153.

Arthur C. Clarke has recently identified “Failure of Imagination” as a stumbling block to scientific progress. See generally Clarke, A., Profiles of the Future (1984)Google Scholar. Such a failure arises “when all of the available facts are appreciated and marshalled correctly—but when the really vital facts are still undiscovered, and the possibility of their existence is not admitted.” Id. at 27. Although failure to see the unforeseeable is properly without blame, failing to acknowledge the possibility of the unforeseeable is, according to Clarke, a far greater sin. See Reynolds, Maybe Tomorrow, TWA AMBASSADOR, May 1984, at 36 (review of Clarke's Profiles). This argument, admittedly, cuts both ways, since both evolutionist and creationist, to the degree that their facts are incomplete, can accuse each other of failure to imagine a set of facts that would verify each's theory. Nevertheless, the proper scientific attitude would appear to be pluralistic dialogue rather than outright rejection of either theory.

213. Bernstein, , The Sanity of the Mad Scientist, This World (San Francisco Chronicle), 08 1, 1982, at p. 23Google Scholar.

214. Id.

215. Id.

216. See. e.g., Hitching, F., Neck of the Giraffe (1982)Google Scholar; Taylor, G., Great Evolution Mystery (1983)Google Scholar; Rifkin, J., Algeny (1983)Google Scholar; Hoyle, E., The Intelligent Universe (1983)Google Scholar; and Ambrose, E., Nature and Origin of the Biological World (1982)Google Scholar.

Discussing the Arkansas trial, one professor of religion stated that:

I rooted fcr the ACLU during that trial, but my rejoicing over its victory was more subdued than that of most of my friends….

Between the creationists' claims concerning human origins and those of neo-Darwinists, truth is more evenly divided than our nation realizes. The creationists' notion that our planet is no more than 10,000 years old is so strained that I have difficulty taking it seriously; on this point I side solidly with the liberals. But what the liberals do not see is that the neo-Darwinists' account of how we got here is not much stronger.

Smith, Christian Century, July 7-14, 1982, at 775.

Although the New Encyclopedia Brittanica suggest that neo-Darwinian theory is as settled as Newtonian theory, many biologists have concluded that the theory is vague, insufficiently verfiable, and basically a dogma that can only be explained on sociological grounds. Id. at 757. In this perspective, even those who support evolution as a theoretical description recognize that the creation-scientists have performed a public service by identifying an over-whelming “scientism in our century.” Id.

217. Carl Sagan, television series “Cosmos”, cited in Baer, , They are Teaching Religion in the Public Schools, Christianity Today, 02 17, 1984, at 12Google Scholar. These are typical “Saganisms”; his popular article How Life Began, Parade Magazine (San Diego Union), December 2, 1984, speaks confidently of our knowledge of the origin of life, even though “there is still much to do” and “many mysteries remain.”

218. Sagan, supra note 217, at 13.

219. See id. “An idea will have a religious nature … if it offers a comprehensive ‘truth’ in response to ultimate issues.” Project, 50 Fordham L. Rev. 1113, 1142 (1982)

220. Williamson, R. de Visme, Independence and Involvement: A Christian Reorientation in Political Science 233 (1964)Google Scholar.

221. See generally Hooykaas, R., Religion and the Rise of Modern Science (1972)Google Scholar.

222. For a discussion of radical separationism, see Williamson, supra note 220, at 225-39, and see generally Horn, , Secularism and Pluralism in Public Education, 7 Harv. J.L. & Pub. Policy 177 (1984)Google Scholar (discussing “strict separationism”). The “radical separationist interpretation of the first amendment has only recently become semi-official, as a result of the progessive secularization of the United States in the twentieth century.” Williamson, supra note 220, at 224. Williamson convincingly argues that the “radical separationist position on church and state relations finds little support in either the thinking and handiwork of the framers of the Constitution and the first amendment or in the American Tradition until very recent times.”

Id. at 225.

Radical separationism, identified with the perspective of Madison and Jefferson, is distinguished by its negative view of religious liberty. Id. at 224.

Conceding that the states may not deny religious freedom to any person, one may still want to know whether the liberty thus protected has the dimensions of positive freedom—permitting state encouragement of accepted truth—or the limited dimensions of a simple immunity from state-imposed burdens. Though the Supreme Court has not dealt with the issue in these terms, it has, in effect, decided that the Fourteenth Amendment compels the states to abandon the concept of positive religious freedom and substitute the negative, Jeffersonian concept.

Howe, , Problems of Religious Liberty, in Nomos Iv: Liberty, 269Google Scholar, cited in Williamson, supra note 220, at 244.

223. Williamson supra note 220, at 236.

224. Letter to editor by Paul Feyerabend, New York Review of Books, January 19, 1984, at 51.

225. Interview with Daniel B. Boorstin, U.S. News and world Report, April 1984, at 73.

Those who have praised the McLean opinion as “magnificent” (Montagu, supra note 87, at 5) and “eloquent” (Gould, Creationism: Genesis vs. Geology, in Science and Creationism, supra note 24, at 128) are, I think, too generous in light of Judge Overton's failure to acknowledge the historical aspect of the scientific enterprise.

226. See Bazelon, supra note 13.

227. See Delgado, , Can Science be Inopportune?: Constitutional Validity of Governmental Restrictions on Race-IQ Research, 31 UCLA L. Rev. 128, 156–65 (1983)Google Scholar. See also Maudsley, & Permuth, , Free Speech and Public Education: An Overview of Legal, Social, and Political Issues, 16 St. Mary's L.J. 873, 891-93 and 901 (1985)Google Scholar.

228. Garret Harding has suggested that the arguments concerning the creation/evolution debate “could be included in public school and with considerable educational benefit. That such material is not included has many explanations…. It is always easier to teach facts than arguments…. A pluralistic society like ours makes it easier to run away from a controversy than to deal with it fairly.” Marketing Deception as Truth, in Science and Creationism, supra, note 24, at 166.

Moreover, if the controversy “makes the scientists a little more humble, particularly in their teaching, and induce[s] them to give more emphasis to the tentative character of any propositions about the past and to emphasize that science deals with evidence, not truth, something good will have been accomplished.” Boulding, supra, note 212, at 158. Boulding “thought the creationists rather improved the biology texts in California by making them a little more humble.” Id. at 153.