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Chapter One

The Legal Setting

In 1981 the state legislature of Louisiana passed a law requiring that if "evolution-science" is taught in the public schools, the schools must also provide balanced treatment for something called "creation-science." The statute was a direct challenge to the scientific orthodoxy of today, which is that all living things evolved by a gradual, natural process--from nonliving matter to simple microorganisms, leading eventually to man. Evolution is taught in the public schools (and presented in the media) not as a theory but as a fact, the "fact of evolution." There are nonetheless many dissidents, some with advanced scientific degrees, who deny that evolution is a fact and who insist that an intelligent Creator caused all living things to come into being in furtherance of a purpose.

    The conflict requires careful explanation, because the terms are confusing. The concept of creation in itself does not imply opposition to evolution, if evolution means only a gradual process by which one kind of living creature changes into something different. A Creator might well have employed such a gradual process as a means of creation. "Evolution" contradicts "creation" only when it is explicitly or tacitly defined as fully naturalistic evolution --meaning evolution that is not directed by any purposeful intelligence.

    Similarly, "creation" contradicts evolution only when it means sudden creation , rather than creation by progressive development. For example, the term "creation-science," as used in the Louisiana law, is commonly understood to refer to a movement of Christian fundamentalists based upon an extremely literal interpretation of the Bible. Creation-scientists do not merely insist that life was created ; they insist that the job was completed in six days no more than ten thousand years ago, and that all evolution since that time has involved trivial modifications rather than basic changes. Because creation-science has been the subject of so much controversy and media attention, many people assume that anyone who advocates "creation" endorses the "young earth" position and attributes the existence of fossils to Noah's flood. Clearing up that confusion is one of the purposes of this book.

    The Louisiana statute and comparable laws in other states grew out of the long-standing efforts of Christian fundamentalists to reassert the scientific vitality of the Biblical narrative of creation against its Darwinist rival. The great landmark in this Bible-science conflict was the famous Scopes case, the "monkey trial" of the 1920s, which most Americans know in the legendary version portrayed in the play and movie Inherit the Wind . The legend tells of religious fanatics who invade a school classroom to persecute an inoffensive science teacher, and of a heroic defense lawyer who symbolizes reason itself in its endless battle against superstition.

    As with many legendary incidents the historical record is more complex. The Tennessee legislature had passed as a symbolic measure a statute prohibiting the teaching of evolution, which the governor signed only with the explicit understanding that the ban would not be enforced. Opponents of the law (and some people who just wanted to put Dayton, Tennessee, on the map) engineered a test case. A former substitute teacher named Scopes, who wasn't sure whether he had ever actually taught evolution, volunteered to be the defendant.

    The case became a media circus because of the colorful attorneys involved. William Jennings Bryan, three-time Democratic presidential candidate and secretary of state under President Woodrow Wilson, led the prosecution. Bryan was a Bible believer but not an uncompromising literalist, in that he thought that the "days" of Genesis referred not to 24-hour periods but to historical ages of indefinite duration. He opposed Darwinism largely because he thought that its acceptance had encouraged the ethic of ruthless competition that underlay such evils as German militarism and robber baron capitalism.

    The Scopes defense team was led by the famous criminal lawyer and agnostic lecturer Clarence Darrow. Darrow maneuvered Bryan into taking the stand as an expert witness on the Bible and humiliated him in a devastating cross-examination. Having achieved his main purpose, Darrow admitted that his client had violated the statute and invited the jury to convict. The trial thus ended in a conviction and a nominal fine of $100. On appeal, the Tennessee supreme court threw out the fine on a technicality but held the statute constitutional. From a legal standpoint the outcome was inconclusive, but as presented to the world by the sarcastic journalist H. L. Mencken, and later by Broadway and Hollywood, the "monkey trial" was a public relations triumph for Darwinism.

    The scientific establishment was not exactly covering itself with glory at the time, however. Although he did not appear at the trial, the principal spokesman for evolution during the 1920s was Henry Fairfield Osborn, Director of the American Museum of Natural History. Osborn relied heavily upon the notorious Piltdown Man fossil, now known to be a fraud, and he was delighted to confirm the discovery of a supposedly pre-human fossil tooth by the paleontologist Harold Cooke in Bryan's home state of Nebraska. Thereafter Osborn prominently featured "Nebraska Man" (scientific designation: Hesperopithecus haroldcookii ) in his antifundamentalist newspaper articles and radio broadcasts, until the tooth was discovered to be from a peccary, a kind of pig. If Osborn had been cross-examined by a lawyer as clever as Clarence Darrow, and satirized by a columnist as ruthless as H. L. Mencken, he would have looked as silly as Bryan.

    The anti-evolution statutes of the 1920s were not enforced, but textbook publishers tended to say as little as possible about evolution to avoid controversy. The Supreme Court eventually held the statutes unconstitutional in 1968, but by then the fundamentalists had changed their objective. Creation research institutes were founded, and books began to appear which attacked the orthodox interpretation of the scientific evidence and argued that the geological and fossil record could be harmonized with the Biblical account. None of this literature was taken seriously by the scientific establishment or the mass media, but the creation-scientists themselves became increasingly confident that they had a scientific case to make.

    They also began to see that it was possible to turn the principles of liberal constitutional law to their advantage by claiming a right to debate evolutionists on equal terms in school science classes. Their goal was no longer to suppress the teaching of evolution, but to get a fair hearing for their own viewpoint. If there is a case to be made for both sides of a scientific controversy, why should public school students, for example, hear only one side? Creation-scientists emphasized that they wanted to present only the scientific arguments in the schools; the Bible itself was not to be taught.

    Of course mainstream science does not agree that there are two sides to the controversy, and regards creation-science as a fraud. Equal time for creation-science in biology classes, the Darwinists like to say, is like equal time for the theory that it is the stork that brings babies. But the consensus view of the scientific establishment is not enshrined in the Constitution. Lawmakers are entitled to act on different assumptions, at least to the extent that the courts will let them.

    Louisiana's statute never went into effect because a federal judge promptly held it unconstitutional as an "establishment of religion." In 1987 the Supreme Court of the United States affirmed this decision by a seven to two majority. The Louisiana law was unconstitutional, said the majority opinion by Justice William Brennan, because its purpose "was clearly to advance the religious viewpoint that a supernatural being created humankind." Not so, said the dissenting opinion by Justice Antonin Scalia, because "The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it."

    Both Justice Brennan and Justice Scalia were in a sense right. The Constitution excludes religious advocacy from public school classrooms, and to say that a supernatural being created mankind is certainly to advocate a religious position. On the other hand, the Louisiana legislature had acted on the premise that legitimate scientific objections to "evolution" were being suppressed. Some might doubt that such objections exist, but the Supreme Court could not overrule the legislature's judgment on a disputed scientific question, especially considering that the state had been given no opportunity to show what balanced treatment would mean in practice. In addition, the creation-scientists were arguing that the teaching of evolution itself had a religious objective, namely to discredit the idea that a supernatural being created mankind. Taking all this into account, Justice Scalia thought that the Constitution permitted the legislature to give people offended by the allegedly dogmatic teaching of evolution a fair opportunity to reply.

    As a legal scholar, one point that attracted my attention in the Supreme Court case was the way terms like "science" and "religion" are used to imply conclusions that judges and educators might be unwilling to state explicitly. If we say that naturalistic evolution is science , and supernatural creation is religion , the effect is not very different from saying that the former is true and the latter is fantasy. When the doctrines of science are taught as fact, then whatever those doctrines exclude cannot be true. By the use of labels, objections to naturalistic evolution can be dismissed without a fair hearing.

    My suspicions were confirmed by the "friend of the court" argument submitted by the influential National Academy of Sciences, representing the nation's most prestigious scientists. Creation-science is not science, said the Academy in its argument to the Supreme Court, because

it fails to display the most basic characteristic of science: reliance upon naturalistic explanations. Instead, proponents of "creation-science" hold that the creation of the universe, the earth, living things, and man was accomplished through supernatural means inaccessible to human understanding.

    Because creationists cannot perform scientific research to establish the reality of supernatural creation--that being by definition impossible--the Academy described their efforts as aimed primarily at discrediting evolutionary theory.

"Creation-science" is thus manifestly a device designed to dilute the persuasiveness of the theory of evolution. The dualistic mode of analysis and the negative argumentation employed to accomplish this dilution is, moreover, antithetical to the scientific method.

    The Academy thus defined "science" in such a way that advocates of supernatural creation may neither argue for their own position nor dispute the claims of the scientific establishment. That may be one way to win an argument, but it is not satisfying to anyone who thinks it possible that God really did have something to do with creating mankind, or that some of the claims that scientists make under the heading of "evolution" may be false.

    I approach the creation-evolution dispute not as a scientist but as a professor of law, which means among other things that I know something about the ways that words are used in arguments. What first drew my attention to the question was the way the rules of argument seemed to be structured to make it impossible to question whether what we are being told about evolution is really true. For example, the Academy's rule against negative argument automatically eliminates the possibility that science has not discovered how complex organisms could have developed. However wrong the current answer may be, it stands until a better answer arrives. It is as if a criminal defendant were not allowed to present an alibi unless he could also show who did commit the crime.

    A second point that caught my attention was that the very persons who insist upon keeping religion and science separate are eager to use their science as a basis for pronouncements about religion. The literature of Darwinism is full of anti-theistic conclusions, such as that the universe was not designed and has no purpose, and that we humans are the product of blind natural processes that care nothing about us. What is more, these statements are not presented as personal opinions but as the logical implications of evolutionary science.

    Another factor that makes evolutionary science seem a lot like religion is the evident zeal of Darwinists to evangelize the world, by insisting than even non-scientists accept the truth of their theory as a matter of moral obligation. Richard Dawkins, an Oxford Zoologist who is one of the most influential figures in evolutionary science, is unabashedly explicit about the religious side of Darwinism. His 1986 book The Blind Watchmaker is at one level about biology, but at a more fundamental level it is a sustained argument for atheism. According to Dawkins, "Darwin made it possible to be an intellectually fulfilled atheist."

    When he contemplates the perfidy of those who refuse to believe, Dawkins can scarcely restrain his fury. "It is absolutely safe to say that, if you meet somebody who claims not to believe in evolution, that person is ignorant, stupid or insane (or wicked, but I'd rather not consider that)." Dawkins went on to explain, by the way, that what he dislikes particularly about creationists is that they are intolerant.

    We must therefore believe in evolution or go to the madhouse, but what precisely is it that we are required to believe? "Evolution" can mean anything from the uncontroversial statement that bacteria "evolve" resistance to antibiotics to the grand metaphysical claim that the universe and mankind "evolved" entirely by purposeless, mechanical forces. A word that elastic is likely to mislead, by implying that we know as much about the grand claim as we do about the small one.

    That very point was the theme of a remarkable lecture given by Colin Patterson at the American Museum of Natural History in 1981. Patterson is a senior paleontologist at the British Natural History Museum and the author of that museum's general text on evolution. His lecture compared creationism (not creation-science) with evolution, and characterized both as scientifically vacuous concepts which are held primarily on the basis of faith. Many of the specific points in the lecture are technical, but two are of particular importance for this introductory chapter. First, Patterson asked his audience of experts a question which reflected his own doubts about much of what has been thought to be secure knowledge about evolution:

Can you tell me anything you know about evolution, any one thing ... that is true? I tried that question on the geology staff at the Field Museum of Natural History and the only answer I got was silence. I tried it on the members of the Evolutionary Morphology seminar in the University of Chicago, a very prestigious body of evolutionists, and all I got there was silence for a long time and eventually one person said "I do know one thing--it ought not to be taught in high school."

    Patterson suggested that both evolution and creation are forms of pseudo-knowledge, concepts which seem to imply information but do not. One point of comparison was particularly striking. A common objection to creationism in pre-Darwinian times was that no one could say anything about the mechanism of creation. Creationists simply pointed to the "fact" of creation and conceded ignorance of the means. But now, according to Patterson, Darwin's theory of natural selection is under fire and scientists are no longer sure of its general validity. Evolutionists increasingly talk like creationists in that they point to a fact but cannot provide an explanation of the means.

(Continues...)

Excerpted from Darwin on Trial by Phillip E. Johnson. Copyright © 1993 by Phillip E. Johnson. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.