Tale of the Monkey Trials: Chapter Three

• Author: Todd D. Keator
• Pages: 673-707

Page 673

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . . ¹

For years, the Establishment Clause² has been the center of controversy between competing theories of natural evolution³ and divine creation.⁴ These two antagonistic theories have clashed on a constitutional battlefield over the appropriate means of educating public school children about the origins of mankind. Supporters of the Biblical version of creation have attempted to introduce their views into public schools while those adopting the scientific view of evolution have urged courts to maintain a strict separation between church and state. Considering past United States Supreme Court decisions, it appears that creationism is losing the battle.⁵ Recently, the United States Supreme Court sustained this trend when it chose not to hear the case of Tangipahoa Parish Board of Education v. Freiler,⁶ and let stand the decision of the United States Fifth Circuit Court of Appeals.⁷ When it comes to squaring the competing theories of mankind's origin with the Constitution, the theory of evolution has survived as the fittest.⁸

Page 674

I Brief History Of The Freiler Case

On April 19, 1994, the Tangipahoa Parish Board of Education adopted a disclaimer to be read in every elementary and high school class prior to the teaching of any lesson regarding the theory of evolution.⁹ The apparent purpose of the disclaimer was to inform the school children that the lesson they were about to receive would be on the scientific theory of evolution and was not meant to "influence or dissuade" them from adopting the "Biblical version of creation" or any other concept that they may have learned at home.¹⁰ The disclaimer also recognized the "basic right and privilege" of each student to adopt his or her own beliefs regarding man's origin and encouraged critical thinking by the students.¹¹

The parents of three public school students in Tangipahoa Parish challenged the disclaimer seven months after its adoption.¹² The parents claimed that it violated the Establishment Clause of the United States Constitution.¹³ The United States District Court for the Eastern District of Louisiana ruled against the Tangipahoa Parish Board of Education and found the disclaimer to be in violation of the Establishment Clause.¹⁴ The District Court opined that the disclaimer lacked a secular purpose.¹⁵ The Fifth Circuit affirmed, but offered different reasons.¹⁶ Contrary to the district court, the Fifth Circuit Page 675 found that the disclaimer did have a secular purpose.¹⁷ However, the court ruled against the disclaimer because "the primary effect of the disclaimer [was] to protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation."¹⁸

The United States Supreme Court denied certiorari in Freiler; however, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented.¹⁹ The dissenting justices stated their reasons as to why the Court should have heard the case and why it should have reversed the Fifth Circuit.²⁰

A Troubles With The Freiler Decision

For over two hundred years, the Supreme Court has played an essential and remarkable role in government. The Court is charged with the greatest duty of resolving the personal and governmental conflicts that inevitably arise in this nation. As noted by Erwin N. Griswold, "[t]hese conflicts are sometimes of extraordinary difficulty, both intellectual and practical, and it should hardly be surprising that their resolution is not always prompt or clear."²¹ For undertaking the task of resolving these difficult issues, the Court has earned the respect and understanding of our nation. Therefore, it is in the spirit of contributing to that respect and understanding that the criticisms in this comment are directed.

The Fifth Circuit and the United States Supreme Court each erred in the Freiler case. By ignoring the purposes and limits of the prohibition contained in the Establishment Clause, the Supreme Court allowed a decision that will not even permit schools to acknowledge the existence of a religious theory of creation.²² An examination of the historical setting surrounding the enactment of the Establishment Clause, as well as the intent of the men who drafted it, reveals that these courts have strained too hard to maintain a rigid wall of separation between church and state. Thus, they have deviated far from the scope of the protections enshrined within the Establishment Clause by allowing it to be used for a purpose not contemplated by the Framers.

Page 676

By denying certiorari in Freiler, the United States Supreme Court allowed an "absolutist" interpretation of the Establishment Clause.²³An absolutist viewpoint is problematic for two reasons. First, the approach involves "a failure to exercise the responsibilities-and indeed the pains-of judging. By ignoring factors relevant to sound decision, it inevitably leads to wrong results."²⁴ When the Supreme Court allowed such a decision to stand, it violated its duty to protect our constitutional freedoms²⁵ through sound interpretation of the Constitution.²⁶ Through the formulation of its own absolutist viewpoint, the Fifth Circuit decided Freiler in a manner that does not accord with the Constitution. The United States Supreme Court should not have tolerated the decision and should not have denied certiorari. Our courts should interpret the Constitution in a manner consistent with the intent of the Framers, and when a lower court fails to do so, the Supreme Court should correct the decision.²⁷ Otherwise, the credibility of judicial decision-making erodes.²⁸

Second, this decision creates potential problems for public school curricula in the future. As a result of the Freiler decision, a public Page 677 school, when discussing the origins of mankind, cannot even acknowledge that alternative religious theories of mankind's origin exist, and it certainly cannot tell a student that he may pursue such theories on his own. This decision stifles freedom of thought. If children are not allowed to know that religions have theories of mankind's origin, then it appears that no subject that is remotely related to religion may be discussed in public schools. This decision paves the way for the courts to tell schools that they may no longer discuss religion's impact and influence on history, art, philosophy, and so forth.²⁹ The Freiler decision is indeed a slippery slope.

The Supreme Court should have granted certiorari in Freiler, reversed the Fifth Circuit, and affirmatively squared the Establishment Clause with its original purposes by asking one simple question: Is the disclaimer "a law respecting an establishment of religion?"³⁰ In answering this question, the Court should have begun by correcting the Fifth Circuit's erroneous application of the Lemon test.³¹ Then, it should have discussed the outcome of the case under both the endorsement³² and coercion tests.³³ Finally, in order to quiet some of the confusion surrounding Establishment Clause jurisprudence, the Court should have consolidated the three Establishment Clause tests to create one workable standard for courts to use in the future.

This comment begins with an exposition of the history surrounding the Establishment Clause and describes the intent of the men who drafted it. Next, it briefly summarizes Establishment Clause jurisprudence in the context of the "Monkey Trial"³⁴ cases and follows up with a discussion of the Fifth Circuit's erroneous decision Page 678 in Freiler. This comment ends with a criticism of the Fifth Circuit's application of the Lemon test. Then, resorting to the intent of the Framers who molded the Establishment Clause, it proposes a solution to the confusion surrounding Establishment Clause jurisprudence by offering a new, simpler test for courts to use when confronted with alleged Establishment Clause violations. Finally, applying this new standard, the Freiler disclaimer³⁵ is put to the test.

B Historical Origins Of The Establishment Clause

Speaking for the Court, Justice Holmes once wrote that "a page of history is worth a volume of logic."³⁶ And, as the United States Supreme Court has noted, "interpretation of the Establishment Clause should 'compor[t] with what history reveals [is] the contemporaneous understanding of its guarantees.'"³⁷ Therefore, before further exploration of the Freiler decision or the jurisprudence surrounding it, a brief history of the Establishment Clause is in order.

From the seventeenth century until the mid-eighteenth century, state establishment of religion was viewed much differently than it is viewed today. At that time, nearly every colony had an "established" religion,³⁸ meaning that each colonial government "established" the Page 679 majority religion and gave it tax funds and privileges.³⁹ The chosen church was to be the only church in the colony, and the clergy were given public support in the form of cash, land, and often goods such as tobacco.⁴⁰ Dissenters of the established church were either fined, persecuted, or killed.⁴¹

The most significant exception to the colonial establishment of religion was the Rhode Island experience led by Roger Williams.⁴²A vigorous advocate for pure religious freedom, Williams believed that the church was to be kept separate and distinct from the corruptive influences of the state.⁴³ Williams was motivated by the belief that any support of religious...