Chapter I

A parallel effort in Louisiana resulted in the 1981 Balanced Treatment for Creation-Science and Evolution-Science Act. Similar to the Arkansas act except even more deliberately worded to avoid triggering court disapproval, local school officials weren’t hot to press the issue, though: “When the Louisiana Department of Education failed to implement the Balanced Treatment Act, Senator Keith filed suit seeking to have the Act declared constitutional and to force its implementation,” Schimmelpfennig (1987, 239). Wendell Bird was again involved in the legal defense, along with John Whitehead, and Louisiana attorney general William Guste kept the issue burning all the way to the Supreme Court, Edwards v. Aguillard (1987), which bluntly declared it unconstitutional (though unenforced it remains on the books, surviving a 2013 repeal effort!) and signaled that mere packaging was not going to solve the problem of how to reflect creationist teachings in public school science curricula, Ecker (1990, 72-76), R. Moore (1999c-d) and DelFattore (2007, 55-60). Larson (1985, 147-163) wrote prior to the 1987 Supreme Court ruling, but described the concurrent Arkansas and Louisiana legislative campaigns in some detail, including Wendell Bird’s more active involvement in the latter case. Toumey (1992, 33-34) and Ruth Brown (2002, 226-233) covered the less successful attempts to try Arkansas-style legislation in North Caroline and Tennessee.

All of which may be compared to the dervish spin of Mawyer (1987a-b) in the Fundamentalist Journal, relying all too readily on the pronouncements of Bird and company on how valid the Creation Science evidence supposedly was—without actually mentioning any of the grubby details on display in Chapter 3 of Downard (2004). Or David Barton (2003, 432) similarly accepting the Balanced Treatment Act’s demurs that it only wanted the “examination of ’scientific data’ and the ’scientific evidence’ for either position.

Mawyer (and Barton more distantly) kept their conclusions sealed off from a primary problem with the YEC court case: that to pass legal muster by the 1980s legislation had to clear the three hurdles of the Lemon test (named for a prior Establishment Clause court case decided in 1971). Any proposed law must have (1) a genuine secular purpose but (2) not favoring or limiting religion, and in pursuit of that (3) not cause “an excessive government entanglement” with religion. Legislation that snagged on any one of the prongs could be held unconstitutional—and failing on all three was a slam-dunk. Schimmelpfennig (1987) questioned whether the first prong was too hard to pin down to be truly useful, but in any case the Lemon Test was never held to mean that a proposed law could have no religious implications at all, a point Edwards v. Aguillard (1987) explicitly assured: “A religious purpose alone is not enough to invalidate an act of a state legislature. The religious purpose must predominate.“

But that is exactly what the legislative history of the Balanced Treatment Act showed, starting with the intent declared by Senator Bill Keith, to “assure academic freedom by requiring the teaching of the theory of creation ex nihilo in all public schools where the theory of evolution is taught,” which notion was specifically identified as “scientific creationism” and which was in turn defined as “the belief that the origin of the elements, the galaxy, the solar system, of life, of all the species of plants and animals, the origin of man, and the origin of all things and their processes and relationships were created ex nihilo and fixed by God.” Such concepts not only bore an “inescapable religiosity” about them (unless Mawyer wanted to take a stab at arguing that Senator Keith was engaged in a clandestine effort to slip Vishnu or Marduk through the door here, and not the God of Abraham as incarnated as Jesus Christ), but represented exclusively the narrow Christian biblical doctrines of the Young Earth Creationism whose advocates (overtly channeling the positions of the Institute for Creation Research and the Creation Research Society) were the only ones testifying for it.

Consequently, the Supreme Court in Edwards v. Aguillard wasn’t going out on any long limb when it concluded that both the earlier Arkansas and later Louisiana “legislatures acted with the unconstitutional purpose of structuring the public school curriculum to make it compatible with a particular religious belief.” As for the “scientific evidence” that creationists offered in support of their position, “Whatever the academic merit of particular subjects or theories, the Establishment Clause limits the discretion of state officials to pick and choose among them for the purpose of promoting a particular religious belief.“

Mawyer (1987b, 56) ignored all of the Lemon Test argument in the ruling and simply repeated the mantra that “the primary purpose of the Act was not to advance religion, but to promote academic freedom.” Though Kulturkampf activists like William Graves (2001, 561-562) continued to see things differently, grumping that the ruling marginalized belief in a Creator, while “It is permissible, however, to teach an unscientific theory, evolution, which undermines those religious beliefs.“

Though the ICR thought to keep the Balanced Treatment legislative flame alight with subsequent “clarifications,” Matsumura (1998b), a fallback creationist position landed on teacher activism. Kelly Segraves and Duane Gish told Mawyer (1987b, 57) they thought the ruling didn’t preclude teaching Creation Science provided it was done voluntarily, as have Nutting & Nutting (1987) and Robert Simonds (1989). More recently CreationWiki (2009a) opined: “none of these cases prohibited teachers from teaching creationism or intelligent design in school.” Intelligent Design would pick up this thread themselves, as we’ll see.

Segraves pursued this “camel’s nose under the tent” approach in another way. In 1981 he sued the state of California on behalf of his children, claiming the state’s science education policy on teaching evolution violated their religious freedom by saying things that conflicted with their beliefs. While Segraves’ suit pointedly did not call for teaching Creation Science in the schools, by demanding secular science content be trimmed to never conflict with those views it amounted to the same thing. The court opinion by Irving Purless (1981) did not buy this argument (recommending only that the state do better at communicating their policy of avoiding theological issues in presenting scientific information), to the satisfaction of NCSE (2009) but not CreationWiki (2014b). It was interesting that in offering instances where evolutionary content might be provocative, the CreationWiki account noted only the origin of life and human relation to apes, not the full blown Flood Geology dogma Segraves (1975; 1977) and CreationWiki embrace.

Meanwhile, Robert Simonds vigorously promoted his side of the Kulturkampf argument through two of his organizations: Citizens for Excellence in Education and the National Association of Christian Educators. Interviewed in 1993 following the Vista, California school board’s voting 3-2 to require “discussions of divine creation” in their history-social sciences and arts courses, Simonds enthused that the so-far limited move (as religious history was already included under the state’s humanities study guidelines) was to “make schools better” in part by having “a policy that would not portray the teaching of evolution as a scientific fact, which it is not,” de Lama (1993). Covering the Vista affair for the Los Angeles Times, Granberry (1993; 1994a-b) noted the conservative Christian board members’ parallel concerns of favoring creationism and objecting to the state’s gay-tolerant sex education program while running up district debt by building two new unneeded schools, leading eventually to a recall effort. Ken Ham (1993) reflected the twin Kulturkampf concerns of YEC in his commentary on Vista for the ICR, complaining that the insistence on teaching “atheistic evolutionary philosophy” that tolerates such things as homosexuality constituted “nothing less than absolute mind control.“

Although the Vista board mandate was dividing the community, encouraging parents who looked forward to creationism being taught properly in their schools at last, while appalling others like local marine biologist John Ljubenkov (1946-2013), Simonds reminded how this new enlightened stance reflected a groundswell of 3611 conservative Christians elected to school boards the previous year, including 38 in the San Diego area that included the Vista board’s Deidre Holliday (who just happened to be a member of Simonds’ Citizens for Excellence in Education). Another of the boards’ pro-mandate trio was John Tyndall, an accountant at the Institute for Creation Research (based locally there in the San Diego area) who had unsuccessfully lobbied to get Of Pandas and People used as a supplemental science text in Vista, Gillis (1994, 650). The mandate itself was drafted by Sacramento lawyer David Llewellyn, who’s Western Center for Law and Religious Freedom was playing its part in that conservative Christian political activism Simonds found so encouraging. Liberal Goldin (1993) offered a considerably less sanguine assessment of the Vista campaign, where the rigid ideological commitments were not always openly made known to voters, as “Christian right candidates disguise themselves as middle class populists.“

The upshot is that individual creationists have continued to slip their views into school on their own (unless they garner enough attention to trip up on the law), while organized efforts have tended to focus on either revising the curriculum at the grass roots school board level, or bypassing the public school process altogether by disseminating their information directly through home schooling or Christian academies, as they had done for many years. With that, the situation fell into a reprise of the 1920s cease fire, again abetted by some textbook publishers who turned circumspect about offending potential markets with inadequately veiled references to evolutionary thinking in their high school science texts, Hughes (1983), Eve & Harrold (1991, 9-10) and Bennetta (1999), a situation which more recent activism by the National Center for Science Education has sought to redress, Scott (1999a).

And there things might have remained, were it not for a new wrinkle in the antievolutionism tale, the emergence of a veneered academic Intelligent Design movement to give the ramshackle engine a new head of steam. Aimed at revamping the college academic environment from the top rather than trying to stuff antievolutionary positions in from the grassroots level, this side of the Intelligent Design movement paid less attention to the fiddly-bit content of science education than to assailing its underlying secular philosophy in a string of law review articles not likely to be coffee table fodder for the traditional creationist: Phillip Johnson (1992a; 2001a), John Zingarelli (1997), David De Wolf et al. (2000), Drew DeMott (2001), DeWolf (2001), William Graves (2001), Nancy Pearcey (2001). Francis Beckwith (2002), T. Mark Moseley (2003), Arianne Ellerbe (2004), Johnny Buckles (2006), De Wolf et al. (2007), Stephen Trask (2007), Thomas Folsom (2008) and Casey Luskin (2009l,am).

The trend of things could be seen in some of the fallout from Justice Antonin Scalia’s dissent from the 1987 ruling striking down the 1981 Louisiana “balanced treatment” law, joined in this opinion by Chief Justice William Rehnquist (1924-2005). Various commentators spotted this new legalistic wrinkle, such as Strahler (1987, 528), McKown (1993, 153-155) and Randy Moore (1999d, 179) on Scalia, and Ecker (1990, 74) regarding Rehnquist.

The Rehnquist court inherited some rather flexible precedents when it came to separating church and state, Redlich (2002), and Rehnquist’s majority religion friendly “nonpreferentialism” opposition to Establishment Clause neutrality found an ally in Scalia, as well as Justices Anthony Kennedy and Clarence Thomas, Terry (2008) and Koppelman (2009). See also “separationist” Epps (2006) and “originalist" Claeys (2006) for contrasting assessments of Rehnquist’s judicial influence. For an example of firebrand original intent judicial conservatism, complete with interlaced secondary arguments gleaned from creationists on how belief in evolution has been destroying the American judiciary, Oklahoma attorney William Graves (2001) at the Regent University Law Review will do.