Archive for September, 2011

Short Legal History:

Separation of Church and State

…the separation of church and state means separation–absolute and
eternal–or it means nothing.

Agnes E. Meyer, U.S. journalist (1887-1970)


In 2004 certain members of the Dover Board of Education expressed concern about the teaching of evolution.
They were given legal advice by the Discovery Institute and on October 18, 2004, the school board voted 6-3 to add a statement to their biology curriculum. This statement read:

Students will be made aware of the gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of life is not taught.[1]

On November 19, 2004, the Dover Area School District issued a press release stating that, commencing in January 2005, teachers would
be required to read the following statement to students in the ninth-grade biology class at Dover High School:

The Pennsylvania Academic Standards require students to learn about Darwin’s theory of evolution and eventually to take a standardized test of which evolution is a part.Because Darwin’s theory is a theory, it is still being tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of

Intelligent design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People is available for students to see if they would like to explore this view in an effort to gain an understanding of what intelligent design actually involves.

As is true with any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments.[2]


In the November 2005 elections, none of the members of the Dover School Board who voted for the intelligent design policy were re-elected and a new school board, which rejected the policy, took office. This effectively precluded the possibility of an appeal to a higher court.[3]

In early 2005 eight families in Harrisburg, Pennsylvania sued a school district that was requiring students to learn about alternatives to the theory of evolution, claiming the curriculum violates separation of church and state. The case of Tammy Kitzmiller , et al. v. Dover Area School District was a first direct challenge brought in the United States federal courts against a public school district that required the presentation of “Intelligent Design” as an alternative to evolution as an “explanation for the origin of life.” The plaintiffs argued that intelligent design is a form of creationism, and that the school board policy thus violated the Establishment Clause of the First Amendment to the United States Constitution.[4]
The ACLU became involved in the dispute in Pennsylvania claiming that intelligent design is a bible-based view that credits the origin
of species to God, and may be a violation of the U.S. Constitution’s prohibition regarding separation of church and state.The case was argued in the United States District Court for the Middle District of Pennsylvania from September 26, 2005 to November 4, 2005. No jury trial was
required so it was by a bench trial before Judge John E. Jones III. On December 20, 2005 Judge Jones issued 139-page findings of fact and decision, ruling that the Dover mandate was unconstitutional, and barred intelligent design from being taught in public school science classrooms.[5]

Accordingly, the judge held “Teaching intelligent design in public school biology classes violates the Establishment Clause of the First Amendment to the Constitution of the United States (and Article 1, Section 3 of the Pennsylvania State Constitution) because intelligent design is not science and ‘cannot uncouple itself from its creationist, and thus religious antecedents.’”[6]  


The Discovery Institute responded after the judge’s ruling accused the judge of being an “activist” federal judge. Ironically, not only did the Judge Jones say he was not an activist judge, but was appointed in 2002 to the District Court by President Bush, is a Republican and a churchgoer.


As will be seen in later sections of this chapter legal cases involving creationism have been going on for a long time. The beginning might be said to have occurred at the Scopes “Monkey Trial” in 1925; however, the real flow and impetus of these cases started two years after World War II in 1947 (See Significant Court Cases).


While the first legal battles and confrontation between creationism and evolution dates back to 1925, the actual first confrontation on the issue of evolution versus creationism dates back to Charles Darwin’s publication in 1859. Charles Darwin first published his famous theory, “On the Origin of Species by Means of Natural Selection,” in a 502 page manuscript on November 24, 1859. The following year the confrontation between Evolutionists and Creationists took place at the annual meeting of the British Association for the Advancement of Science, held in Oxford.[7]
The atmosphere at the meeting was intense. The protagonists in the famous debate were Bishop Samuel Wilberforce and Thomas Huxley. A verbal battle ensued between the two. The lecture hall was crowded with seven hundred students as the lecturers represented the beginnings of the age of Creationism versus the age of Evolutionism.[8]

“Wilberforce, an outstanding orator, rose and begun an eloquent attack on Darwin’s Theory. But in the end, his eagerness to score a point was his undoing. Turning to Huxley, he asked with barbed sarcasm, ‘and you, sir, are you related to the ape on your grandfather’s or your grandmother’s side? At this Huxley murmured to himself, ‘The Lord has delivered him into mine hands.’ He then rose, brilliantly expounded the scientific questions at issue, and only then returned to Wilberforce’s clever gibe. ‘A man has no reason, he said, ‘to be ashamed of having an ape for a grandfather or a grandmother. If I had a choice of an ancestor, whether it should be an ape, or one who having scholastic education should use his logic to mislead an un-tutored public, and should treat not with argument but with ridicule the facts and reasoning adduced in support of a grave and serious philosophical question, I would not hesitate for a moment to prefer the ape.’ Gales of laughter greeted Huxley’s response, and the humiliated Wilberforce had to concede defeat.”[9]

Now we’re into the 21st Century and the debate still rages on. In 1997 the United States Supreme Court ruled that Creationism is not science and cannot be taught in public schools as science. What the Creationists fail to understand is that by trying to push “pretend science” on local school boards, they may inadvertently be opening up Pandora’s Box. If school boards around the country were ever to start changing their curriculum to include a “pretend science that is a straw man for Christianity” for the not-so-hidden agenda of Creationism, then other
religious groups other than Christianity will have a legitimate right to demand school boards teach their beliefs.

There is no doubt that once Pandora’s Box is opened, then school boards around the country will be inviting no end of lawsuits from other religious organizations and groups. In a democratic society that has a Constitution and a Bill of Rights the courts will likely continue to
rule against school districts that want to subvert real science education. It is the belief of many conservative fundamentalists that our Founding Fathers favored a religious direction for the new nation of 1776. According to Karen Armstrong, a religious historian and scholar, “the Founding Fathers and the clergy in mainline churches had cooperated in the creation of a modern, secular republic” when the United States broke away from King George in England.”[10]

According to Armstrong, “After the Revolution, however, when newly independent states drew up their constitutions, God was mentioned in them only in the most perfunctory manner. In 1776, Thomas Jefferson disestablished the Anglican church in Virginia; his bill declared
that coercion in matters of faith was ‘sinful and tyrannical,’ and that there should be a ‘wall of separation’ between religion and politics…In 1787, when the federal Constitution was drafted at the Philadelphia Convention, God was not mentioned at all, and in the Bill of Rights (1789), the First Amendment of the Constitution formally separated religion from the state: ‘Congress shall make no laws respecting the establishment of religion, or prohibiting the free exercise thereof.’ Henceforth faith would be a private and voluntary affair in the United States.”[11]

Many in the religious community today are doing wonderful things feeding the poor, helping the less privileged, fighting injustice, and doing missionary work in some rather hostile places on earth. That takes real courage, commitment and passion–the same kind of courage, commitment and passion that Christ may have had. Unfortunately, rather than really following Jesus, some evangelicals, fundamentalists, and Pentecostals, on television or from the pulpit, would rather expend their energies fighting real science, vilifying other major religions, and even other denominations within the Christian faith, and demonizing secular society altogether.It’s time many of these petty demagogues get
off their self-serving theological and ideological high-horse, and return to being humble, caring for all people of this world, and being a good Shepard. Otherwise, organized religion is headed for the trash heap as only ideological nonsense.The social and intellectual decline of Christianity is very real. The fear and loathing they promote can only backfire in the long run, and further erode their already declining membership in the Christian faith. The fact that they also line their pockets with the hard earned money of churchgoers only infuriates an already questioning society.

of Church and State


Historically, as well as today, separation of church and state is the pivotal issue dealing with the proper role of religion in a diverse democratically based society. This issue played a significant role at the time of the creation of this country. Ironically, mainline religions played an important role in supporting a secular democracy where everyone would be free to have their own religion without the hindrance
of the state.[12]
Separation of church and state is, in many ways, one of the oldest issues between Christianity and the countries it resided in. In the 4th Century C.E. there was no separation between church and state. Constantine united east and west, between Rome andConstantinople, under one church. However, when the United States was democratically established, the country determined that all religions would be permitted as well as no religion. The First Amendment to the Constitution established the principal of separation of church and state. Government would not be tied to any one religion, and all religions would be safe to practice their rituals and practices. However the arbiter of who describes what that separation will entail–has been the courts.

Significant Court


In modern times many court battles have occurred regarding issues of state-church separation. The most significant of these occurred after World War II. In Everson v. Board of Education (330 U.S., 1947) the United States Supreme Court stated in its majority opinion, “The
establishment of Religion’s Clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church.”[13] A year later in a 1948 case the U.S. Supreme Court ruled in (Illinois ex-rel. McCollom v. Board of Education) that religious instruction cannot be conducted in public school buildings.[14]

In 1961, in (Torcaso v. Watkins), the court held that the state of Maryland cannot require applicants for public office to swear that they believed in the existence of God. The court unanimously held that a religious test violates the Establishment Clause (See Article VI, Clause 3, of the U.S. Constitution).[15]

In 1962, in (Engel v. Vitale) the U.S. Supreme Court forbade public schools to require the recitation of prayers. In 1963 in (Abington School
District v. Schemp) the Court prohibited any state law or school board to require that passages from the Bible be read, or that the Lord’s prayer be recited in the public schools, at the beginning of each school day even if individual students may be excused from attending or
participating in such exercises upon written request of their parents.[16]

Eight years later in 1971 in (Lemon v. Kurtzman) it established the three part test for determining if an action of government violates First Amendment’s separation of church and state:  1) the government action must have a secular purpose 2) its primary purpose must not be to inhibit or to advance religion and 3) there must be no excessive entanglement between government and religion [17]

The last 26 years has resulted in a number of very important cases on the separation of church and state. By 1980, in the case of (Stone v. Graham) the United States Supreme Court ruled that the Ten Commandments cannot be posted within the public schools. The ruling stated
that the Kentucky Statute requiring the posting of a copy of the Ten Commandments has no secular legislative purpose, and therefore is
unconstitutional as violating the Establishment Clause of the First Amendment.[18]

In 1985 the high court voted 6-3 to strike down an Alabama law requiring public schools to set aside a moment of silence for meditation or prayer. The court ruled in 1992 in (Lee v. Weisman) that public schools may not sponsor invocations at graduation ceremonies.[19]

The following are cases where court decisions pertained to issues of
evolution and creationism.

In 1968 (Epperson v. Arkansas) the United States Supreme Court invalidated an Arkansas Statute that prohibited the teaching of evolution. The decision of the court was based on grounds that the First Amendment to the U.S. Constitution does not permit a state to require
that teaching and learning be tailored to the principals or prohibitions of any particular sect or doctrine.[20]
It was determined by the court in 1981 (Segrance v. State of California) that found that the California Board of Education’s Science Framework as written by its anti-dogmatism policy, gave sufficient accommodation to the views of Segrance despite his contention that
class discussion of evolution prohibited his and his children’s free exercise of religion. The anti-dogmatism policy provided that class distinctions of origins should emphasize that scientific explanations focus on “how,” not “ultimate cause.” And that any speculative statements concerning origins, both in texts and in classes, should be presented conditionally, not dogmatically. The court’s ruling also directed the Board of Education to widely disseminate the policy, which in 1989 was expected to cover all areas of science, not just
those concerning issues of origins.[21]

A federal court in 1982 held in ( McLeon v. Arkansas Board of Education) that a “balanced treatment” statute violated the Establishment Clause of the U.S. Constitution. The Arkansas statute required public schools to give balanced treatment to “creation science” and “evolution science.” In a decision that was rendered the Court provided a detailed definition of the term science, they declared that “creation science” is not in fact a science. The court also found that the statute did not have a secular purpose, noting that the statute used language peculiar to creationist and literalness in emphasizing origins of life as an aspect of the theory of evolution.[22]

In 1987, in (Edwards v. Aguillard), the U.S. Supreme Court held, 7-2, that Louisiana’s “Creationist Act,” was unconstitutional. This statute prohibited the teaching of evolution in public schools, except when it was accompanied by advancing the religious belief that a supernatural being created humankind, which is embraced by the term creation science, the act impermissively endorses religion. In addition, the Court found that the provision of a comprehensive science education is undermined when it is forbidden to teach evolution except when creation science is taught.[23]

During the decade of the 1990s several cases were dealt with in the courts. In (Webster v. New Lennox School District) the Seventh Circuit Court of Appeals found that a school district may prohibit a teacher from teaching “creation science.” The court upheld a district court finding
that the school district had not violated Webster’s free speech rights when it prohibited him from teaching “creation science,” since it is a form of religious advocacy.[24] Four years later the North Circuit Court of Appeals upheld a district court finding in (Peloza v. Capistrano Unified School District) that a teacher’s First Amendment right to free exercise of religion is not violated by a school district’s requirement that evolution be taught in biology classes. They rejected plaintiff Peloza’s definition of a “religion” of “evolutionism.” The Court found that the district had simply and appropriately required a science teacher to teach a scientific theory in biology class.[25]

In 1997 the United States District Court for the Eastern District of Louisiana in(Freiler v. Tangipahoa Parish Board of Education) rejected a policy requiring teachers read aloud a disclaimer whenever they taught about evolution, ostensibly to promote “critical thinking.” Besides addressing disclaimer policies, the decision recognized that curriculum proposals for “intelligent design” are equivalent to proposals for teaching “creation science.” On August 13, 1999 the 5th Circuit Court of Appeals affirmed the ruling. On June 19, 2000 the United States Supreme Court declined to hear the appeal and let stand the lower court’s decision.[26]

Just when you think the courts have rendered enough decisions since 1947 separating church and state diehard fundamentalists never seem to learn from those decisions, or their mistakes. Any group that intends on forcing its brand of religion (no matter what it is) on secular society is always going to lose in the courts. No where is this more obvious than with respect to “Intelligent Design.” The new euphemism for
“creationism” is “intelligent design.” Two cases involved school boards, one in Dover, P.A., and the other–the Kansas State Board of Education.

In Dover, Pa. the school board voted 6-3 in October 2004 to require ninth-grade students be told about intelligent design when they
learn about evolution in biology class. “Intelligent design” holds that the universe is so complex it must have been created by some kind of guiding force. This case was challenged in the federal courts and went to trial in September, 2005. As mentioned earlier, this was the first testing of the concept of “intelligent design” in the courts. In December 2005 the intelligent design advocates lost their case.

Since all scientific knowledge is provisional, it is unclear why or if science teachers aren’t already teaching the complete nature of the scientific method of investigation and procedure, (including the conservative approach in science of always questioning methods
and findings). There is really nothing new that bogus creationists or intelligent design advocates can teach real scientists anyway.

In another case that got national attention, the Kansas Board of Education scheduled six days of courtroom style hearings in Topeka, Kansas.
The alleged purpose of the hearings was to determine (or re-determine) what school children should be taught about how life on earth began.[27]

More than two dozen witnesses gave testimony and were subject to cross-examination, with the majority expected to argue against teaching evolution.  Most prominent U.S. scientific groups denounced the debate as founded on fallacy, and boycotted the hearings saying it is all part of a larger nationwide effort by religious interests to gain control over government.[28]

“One of the school board members, Sue Grable, who described herself as a moderate, said she would not attend the hearings, which she described as a “farce.”[29] She said the argument over evolution is part of a larger agenda by Christian conservatives to gradually alter the legal and social landscapes in the United States.”[30]

Even if the Kansas Board of Education had given into the circus mentality of a Scopes Trial and votes to push ID within the states’ science curriculum, lawsuits would have result in the final ultimate decision. Creationists lost again as they had in every case since 1947. The U.S. Constitution is quite clear. There will be, as long as there is a democracy (not a theocracy), a definitive separation of church and state.

Our Founding fathers realized the dangers in promoting only one religious viewpoint in a fledging country trying
to establish democracy in the new world. The country today owes our Founding Fathers a debt of gratitude for having the wisdom and vision to know the importance of separating church and state.

What these types of advocates for religion fail to understand over-and-over again is that The Theory of Evolution isn’t just any theory. It is the most eminent theory in all of science that cuts across at least twenty scientific disciplines and has received data supporting the theory for more than one hundred and fifty years. It is absolutely true that “nothing makes sense at all in biological science were it not for evolutionary theory.”

Recent Cases and
Court Actions


In late August 2005 the Associated Press reported that a group representing 800 California religious schools filed a lawsuit accusing the University of California system of discriminating against high schools that teach creationism and other conservative’s Christian viewpoints. The group, known as the Association of Christian Schools International, filed a lawsuit in federal court claiming U.C. admission officials have refused to certify school science courses that use textbooks challenging Darwin’s theory of evolution. Other rejected courses included one called “Christianity’s Influence in American History.”[31]

The lawsuit cited the Calvary Chapel Christian School in Murrieta was told its courses were rejected because they used textbooks by two Christian publishers, Bob Jones University and A. Beka Books.[32] The University has responded by saying that the university has a right to set course requirements. According to U.C. spokeswoman Ravi Poorsina, “these requirements were established after careful study by faculty and staff to ensure that students who come here are fully prepared with broad knowledge and the critical thinking skills to succeed.”[33]

In another case in September 2005 the Associated Press reported that a federal judge declared the reciting of the Pledge of Allegiance
in public schools unconstitutional in a case brought by the same atheist whose previous battle against the words “under God” was rejected by the U.S. Supreme Court on procedural grounds.[34] The U.S. District judge in the case said the pledge’s reference to one nation “under God” violates school children’s right to be free from a coercive requirement to affirm God.” In 2002, the 9th Circuit Court of Appeals ruled in
favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools.[35]

In 2004 however, the United States Supreme Court ruled against Michael Newdow on a technicality that he lacked standing because he did
not have custody of his elementary school daughter he sued on behalf of. The technicality is soon to be overcome since Newdow who is an attorney has filed an identical suit on behalf of three unnamed parents and their children who have a legal right to sue.

At a time when the U.S. Supreme Court is going through a shakeup following the death of Chief Justice William H. Renquist and the retirement of Associate Justice Sandra Day O’Connor, it will be interesting to see how a revised court will rule in the future on
issues related to separation of church and state. Since then Chief Justice John Roberts and Associate Justice Samuel Alito have been appointed to the high court.

In another development the Kansas state Board of Education, that last year altered science standards favoring Intelligent Design, have lost control of the state Board of Education again. The new 6-4 majority favor retaining evolution and the retaining of proper scientific standards for the education of Kansas’s students in K-12. According to the Associated Press, “Late-night comedians have been making cracks about Kansas, portraying it as backward and ignorant. Comedy Central’s ‘The Daily Show’ broadcast a four-part series titled, ‘Evolution Schmevolution.’”[36]  Reaction to the altered science standards favoring Intelligent Design has been swift in Kansas. According to the National Center for Science, on February 15, 2006, “The Manhattan-Ogden school district (USD 383) became the first local school
district in Kansas to reject state science standards adopted by the Kansas state board of education in November 2005. At its meeting on February 15, 2006, the USD 383 board of education voted 6-0 to adopt a resolution that endorses the original writing committee’s description of science as “a human activity of systematically seeking natural explanations for what we observe in the world around us.” [37]

From 1947 to 2006 the courts in the United States have kept the wall of separation between church and state standing. They have
done so with decisions that have strengthened our democracy without giving in to the taint of religious bias. Much has changed since the Founding Fathers wisely chose to separate church from state. One of the key factors that have altered the social landscape in this country is Education. Why has this factor been so important? According to Paul Harrison, “Education has taught people to think independently and critically. It’s difficult for educated people today to believe in dogma or miracles merely because a parent, a priest or an ancient book proclaims it. People seek sounder foundations, and ask for harder evidence of what religions claim. If that evidence does not satisfy reason, more and more people chose to reject religions of every kind.”[38] To the extent that Christian fundamentalists want to practice their religion they already have that right. The Establishment Clause of the U.S. Constitution is as much for their protection as any other groups. Jesus once said, “Render under Caesar what is Caesars, and render under god what is gods.” It seems Jesus understood the importance of separation of church and state, even in 30 C.E. Christian Fundamentalists would do well to follow his example, now wouldn’t they?

“Kitzmiller v. Dover Area School District,” Wikipedia, the free encyclopedia, [online]; accessed 3 Aug. 2006; available from http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School_District.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Richard Leakey and Roger Lewin, Origins, (New York: E.P. Dutton, 1977 ), 30

[8] Ibid, 31

[9] Ibid.

[10] Karen Armstrong, The Battle for God: A History of Fundamentalism , (New York: The Ballantine Publishing Group, 2000), 86

[11] Ibid, 85

[12] Ibid.

“Religious Court Rulings,” [online]; accessed 30 Dec. 2004; available from http://www.stephenjgould.org/ctril/courtrulings.html.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Summary of Seven Significant Court Decisions Regarding Evolution/Creation Issues, http://arnica.edu/bio/3020/courts/court-decisions.htm retrieved12/30/2004

[22] Ibid.

[23] Religious Court Rulings

[24]Summaries of Seven Significant Court Decisions

[25]Religious Court Rulings

[26] Ibid.

[27] “Evolution on Trial in Kansas,” CNN.com 3 May 2005 [online];accessed 13
May 2005; available from http://www.cnn.com/2005/EDUCATION/05/02/life.evolution.reut.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] “University of California Sued Over Creationism,”  Associated Press [online]; accessed 13 May 2005; available from http://www.network54.com/Forum/thread?forumid=106337&messageid=1125185777&1p=112.

[32] Ibid.

[33] Ibid.

[34]“Judge:School Pledge is Unconstitutional,” Netscape News with CNN [online]; accessed 14 Sept. 2005;
available from http://www.netscape.cnn.com/ns/news/story.jsp?idq=1ff/story/0001/20050914/1519611288.htm.

[35] Ibid.

“Evolution Opponents Lose Kansas Majority,” (AP) New York Times, 2 Aug. 2006 [online]; accessed 4 Aug. 2006; available from http://us.f812.mail.yahoo.com/ym/ShowLetter?Msgld=4571_4147389_57083_1760_6589_0_1127.

[37] “Local School District Rejects Kansas’s Antievolution Standards,” National Center for Science, [online]; accessed 9
Aug. 2006; available from http://us.f812.mail.yahoo.com/ym/ShowLetter?MsgId=4289-6889270-104983-1859-8190-0-113.

[38] Paul Harrison, Elements of Pantheism—Religious Reverence of Nature and theUniverse   (Second Edition), (Coral
Springs: Llumina Press, 2004), 5.

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