Chapter I

Applying such principles to the creationism venue has suffered from the limited scientific understanding of the dissenting Justices. Gould (1991a, 450-460) noted that Scalia’s dissent was founded “in large part, upon a misunderstanding of science”—notably the persistent conflation of “evolution” with “how life began,” rather than as the study of what has happened to life once it had appeared (by natural or supernatural means)—more on this Origins or Bust issue in section 1.7). As we’ll see, there’s a lot more wrong with Scalia’s perception than only that, a suite of methodological misapprehension that runs through antievolutionary thought at every level, from how you are supposed to work out what constitutes sufficient evidence for coming to reasonable scientific conclusions, to the many cultural presumptions circling around their religious campfire when it comes to the origins of matter, life and man.

More salient is how neither Scalia (nor Rehnquist tagging after) discerned anything even remotely scientifically spurious about the “creation model” evidence under consideration in the Balanced Treatment Act, giving one pause to wonder to what degree a firm grounding in basic scientific principles had penetrated American legal education. Scalia (1987) averred (with his own italic emphasis) that:

the parties are sharply divided over what creation science consists of. Appellants insist that it is a collection of educationally valuable scientific data that has been censored from classrooms by an embarrassed scientific establishment. Appellees insist it is not science at all, but thinly veiled religious doctrine. Both interpretations of the intended meaning of that phrase find considerable support in the legislative history.

At least at this stage in the litigation, it is plain to me that we must accept appellants’ view of what the statute means. To begin with, the statute itself defines “creation science” as “the scientific evidences for creation and inferences from those scientific evidences.”

Although Scalia’s argument was longer than Powell’s majority opinion it was dissenting from, the justice declined to evaluate the accuracy of any of the Creation Science evidence, which he neither endorsed nor repudiated, though he did remind that the bill’s supporters held Creation Science to be “a strictly scientific concept that can be presented without religious reference.” Later in the dissent, Scalia adjusted his fence straddling by directing his gaze more in the creationist direction (once more, Scalia’s italics):

Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that “creation science” is a body of scientific knowledge, rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation’s stated purpose must be a lie.

Left on the sideline was the fundamental methodological question: do people who believe things that aren’t true ever offer “evidence” for their position? And if so, are there any standards at all whereby such assertions are to be evaluated and, where appropriate, rejected?

But as far Scalia was concerned, he had only “to ascertain what the members of the Louisiana Legislature believed”—if they thought they were serving a secular purpose (or even just professed that intention), then that settled it for him. The idea that the legislators may have been mindful that they had to keep the religious underpinnings of their views under wraps given the way the courts had been ruling appears not to have occurred to Scalia, gymnastically willing to give them all the benefit of the doubt no matter what the outcome was—an open invitation for legislators to conceal motives and intentions in order to poke holes in the Wall of Separation interpretation of the Establishment Clause, Gey (2000).

Overall, though, the “secular purpose” prong has been upheld in the courts. A Kentucky effort to have the Ten Commandments posted on the wall of every public school classroom (Stone v. Graham) thought to slide through the courts by including a declaration affirming its purely secular purpose (as though they could conceal the partisan connection to the God of Abraham with a smiley face sticker) but it was still declared unconstitutional in 1980, Schimmelpfennig (1987, 244-245).

The Lemon Test’s legislative intention prong has bothered some legal critics, such as Maryland lawyer Kendrick Whitmore (2007, 441-441, 446-449), who objected to the “bias” of the Stone v. Graham ruling and pressed on to recommend Scalia’s Edwards v. Aguillard dissent as persuasive, Similarly for the cursory coverage of Edwards v. Aguillard by House (2008b, 200-202) noting how Scalia and Rehnquist “reprimanded” the majority on this point. Neither stopped to examine what specific details had played a role in Scalia arriving at his opinion.

There were two presentations made to the Louisiana legislators.

At the District Court stage, Scalia noted that Louisiana had “submitted the affidavits of two scientists, a philosopher, a theologian, and an educator, whose academic credentials are rather impressive.” The scientists turned out to be San Francisco State University biologist Dean Kenyon (coauthor of Of Pandas and People, whose vacuous coverage of Punctuated Equilibrium we have already encountered, including Kenyon’s 1984 Louisiana affidavit), and William Scot Morrow, a biochemist “known for his libertarian ideals” during his forty years at Wofford College in South Carolina, according to the biographical archive at Wofford College (2013). Morrow had earlier testified in favor of the Arkansas Balanced Treatment statute and later wrote the introduction to creationist Robert Gentry’s polonium halo book, suggesting a quixotic open mind more in the barn door manner. The flavor of Morrow’s testimony is hinted at by the assessment of his Arkansas involvement by Duane Gish (1982): “Dr. Morrow, although an evolutionist and an agnostic, maintained that creationists actually look at more data than do evolutionists and that an inquiry approach involving multiple working hypotheses was a superior teaching method.”

Arguing that “creation science is as nonreligious as evolution,” the Kenyon (1984) affidavit astonishingly tried to amputate the Creation from Creation Science: “Creation-science does not include as essential parts the concepts of catastrophism, a world-wide flood, a recent inception of the earth or life, from nothingness (ex nihilo), the concepts of kinds, or any concepts from Genesis or other religious texts.” Norman Geisler (1982, 22) had put a similar spin on the previous Arkansas creationism case, contending the Creation model to be presented in their schools wasn’t based on the Bible even a smidge, but solely on scientific evidence—pay no attention to the man behind the curtain!

But Kenyon undermined Geisler’s impression by proceeding in his own affidavit to graft some of the severed parts back on, contending that, “Either the universe evolved from the big bang or other initial state (cosmic evolution), or it was created (cosmic creation).” And how exactly was that distinct from ex nihilo? Or that “Microevolution is change within local populations at or below the species level. Creationist scientists do not dispute, but accept, microevolution.” No speciation at all? So how does that differ from fixed created kinds? One begins to wonder whether Kenyon even understood what his own position was.

But supposing Kenyon’s de-creationized Creation Science was the Real McCoy, what exactly was going on over at the Creation Research Society and comparable organizations? Everything being published by the self-identified Creation Scientists there would not actually be Creation Science. Now, just how plausible does that sound, and how ever could Kenyon have imagined otherwise? As it happens, we have some information to the contrary: just as the Louisiana trial was hitting the fan, Morris & Parker (1987, 52) were noting in their explanation of What Is Creation Science? how Kenyon had become a creationist convert in the 1970s after reading Whitcomb & Morris’ The Genesis Flood. Kenyon even supplied a cheery introduction to What Is Creation Science? in which he lauded the authors for their “superb ability to avoid undisciplined speculation and to keep their reasoning in close conformity with the actual facts of nature,” Morris & Parker (1987, iv).

So one may note Morris & Parker (1987, 223-252) devoted a whole chapter to “Catastrophism in Geology.” And while there was no mention of the Flood or any Bible quotes (the book was specifically tailored for the secular audience, much as Price had done with his The New Geology), Morris & Parker (1987, 14) had no reluctance to insist: “there is no real scientific proof, or any unequivocal evidence, that the earth is older than several thousand years,” and Morris & Parker (1987, 262) touched on the ex nihilo issue with: “The testimony of the true facts of science is thus in full support of the Creation Model. That is, at some point of time, say T₀, the Space/Mass/Time cosmos was simply created, brought into existence in fully developed and functioning form right at the beginning.” And Morris & Parker (1987, 120, 179) defined the fixity of species/types as a direct prediction of their Creation model. All of these being positions Kenyon’s 1984 affidavit had assured Louisiana’s legislators weren’t part of Creation Science doctrine. Cue the smoke and mirrors.

All this might be thought to put a cap on just how “scientific” his reasoning could have been, given the geological absurdities of Whitcomb & Morris (1961), and making it even less convincing that anyone in 1984 could have had no inkling at all that Creation Science was Flood Geology, up front and center—though the coverage of Kenyon’s development as a creationist in Dave Nutting (1998b) and Think & Believe (1998b) suggests he may not have been all that attentive to the broader context or implication of the ideas he waded into during this period.

Interestingly, as Kenyon almost testified at the Arkansas creationism trial but was apparently dissuaded by Wendell Bird, Edwords (1982a, 43), one can’t help wondering whether this was due to his curiously feeble grasp of what he had been reading for a decade. Kenyon would offer yet another enthusiastic preface a few years later to Wendell Bird (1989, Vol. 1, xv-xvi), where he described that wandering two-volume monstrosity (three times longer than it needed to be because it followed the lawyerly practice of declaring what he intended to say, then repeating all that in the part devoted to saying it, only to cover it all again in a summary section) as both “clearly organized” and “of great merit.” Morris & Morris (1996c, 178) later stated more obliquely that Kenyon “had become a creationist, partially through reading creationist books”—perhaps “partially” reading was the right term after all.

The remaining Louisiana affidavit figures were philosopher Terry L. Miethe (dean of the Oxford Study Centre), Iowa priest William G. Most (1914-1999), and educator Robert J. Clinkert. My search for this writing did not uncover any noteworthy contributions from them regarding antievolutionism in general or Creation Science in particular. Clinkert is perhaps the oddest of the lot: at the time of the Louisiana trial his professional work involved research on things like language disorders and dyslexia, such as Clinkert (1978), while on theology Clinkert (1987) opined for his creationist readers the seeming decline of liberal biblical hermeneutics. Move on a few decades, though, and Clinkert (2011) had evolved a long way, espousing a very atypical view of the Old Testament whereby gay rights were protected and it was homophobia that was a heretical doctrine! The world is full of surprises.

While the District Court material had been relegated to a note in Scalia’s dissent, more attention was paid to the presentation given to educate the Louisiana legislature on the merits of the law. Here is how Scalia represented what “scientific” information they had at their disposal:

Most of the testimony in support of Senator Keith’s bill came from the Senator himself, and from scientists and educators he presented, many of whom enjoyed academic credentials that may have been regarded as quite impressive by members of the Louisiana Legislature. To a substantial extent, their testimony was devoted to lengthy, and, to the layman, seemingly expert, scientific expositions on the origin [p622] of life.

In other words, the legislators were being spoon-fed only one side of the argument, the creationist one (Scalia did not venture an opinion as to whether there might be something dodgy about that process). Only a few had some scientific background: chemist Edward Boudreaux had become a creationist in 1975 but is only a minor player on the creationist scene, with the brief write-up at CreationWiki (2010j) mentioning his academic credentials but offering little relating to creationism. An interview of Boudreaux (2001) suggests that his expertise dissipated rapidly regarding topics outside his field, such as when he reprised the typical creationist talking point: “A number of evolutionists openly admit that the coveted fossil record is devastating to the entire scheme of organic evolution, be it neo-Darwinism, punctuated equilibrium or whatever.” Boudreaux became the head of the Rocky Mountain Creation Fellowship in 2009, which focuses on proving dinosaurs and people coexisted, CreationWiki (2009c), and a 2012 YouTube video lecture by Boudreaux on the Vapor Canopy theory for Noah’s Flood turned up at Creation Sensation (2013).

By contrast, geologist John Morris (son of Henry Morris) is a major player at the ICR, and has capably followed in his father’s footsteps when it comes to the evidential origami skill of folding a selective data set until they resemble the very restrictive YEC model sheet. As for the remainder of the Louisiana witnesses, prickly antievolutionary crusader (and non-scientist) Luther Sunderland (1929-1987) also testified for the Balanced Treatment Act, while the others have left no discernable presence as of this 2013 review (identified only as Kalivoda, Reiboldt, and Ward in Scalia’s dissent).

Just as he had with the District Court affidavit group above, Scalia did not delve into any of their backgrounds or expertise when he summarized the five claims offered by this august parade to the legislature, all of which turned out to be very dependent on being able to distinguish pseudoscientific wishful thinking from genuine scientific and scholarly methodology: The first was a lulu (the boldface this time is mine, to highlight the text specifically in Scalia’s summary):

1. “There are two and only two scientific explanations for the beginning of life—evolution and creation science,” so that “any evidence that tends to disprove the theory of evolution necessarily tends to prove the theory of creation science, and vice versa.”

So there is no non-ICR theory of the origin of things to balance out that creation/evolution teeter-totter? Other Christians present no alternatives either, let alone Hindus or Native Americans? The Catholic Scalia thus did not notice at this point how the deck was being ostentatiously stacked in favor of only one game, the YEC one, thus repudiating at the get-go any idea that the legislation somehow wasn’t related to their very parochial religious dogma. While creationists were certainly dedicated to framing the issue in this either/or way, it said a lot about Scalia’s thinking that he was so open to letting them get away with it—and that “vice versa” caveat rings hollow, as I know of no instances (and Scalia certainly offered none) where creationists have ever allowed any evidence to be taken as disproving their position, let alone acknowledging that it in turn weighs for evolution.

1. “The body of scientific evidence supporting creation science is as strong as that supporting evolution. It may be stronger,” since “Evolution is merely a scientific theory or ’guess’.” Indeed, evolution “is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a ’myth.’”

Here the Creation Science assertions were running off the methodological rails big time, for the idea that scientific theories are merely guesses happens to be colossally wrong (think Gravitational Theory, Relativity Theory, Quantum Theory, or the Germ Theory of disease, for that matter). This is a common enough mistake for nonscientists to make, cropping up repeatedly in the creation/evolution debate, such as Steven Newton (2014c) taking note of creationists questions submitted over Buzzfeed, but that only underscores the populist magnitude of Scalia failing to perceive the mistake as a mistake.

Gregory (2008) has explained why evolution is simultaneously a “Fact, Theory, and Path,” and any thorough investigation of how particular hypotheses (such as how much hybridizing went on among archaic Homo sapiens and their Neanderthal cousins) are explored in the course of refining evolutionary relationships (where the more general theory would still hold H. sapiens and Neanderthals to be indisputable natural relatives) would see that the scientists involved are operating way above the “guess” level. So at this point one may further marvel at Scalia’s failure to consider whether the creationist witnesses might not be accurately representing anything about what they claimed comprised evolutionary evidence, or to what extent the Louisiana legislators were any better at detecting when they were being tendered a pseudoscientific bill of goods.

1. “Creation science is educationally valuable. Students exposed to it better understand the current state of scientific evidence about the origin of life,” while “Creation science can and should be presented to children without any religious content.”

Scalia did not inquire whether exposure to the ICR spin actually did enhance understanding of the “current state of scientific evidence”—a recent study of Australian science students by Buckberry & Burke da Silva (2012) and my own experience over the years with what creationists think they know about relevant technical literature suggest not.

Arguing a bit later that “The Act’s reference to ’creation’ is not convincing evidence of religious purpose,” Scalia sounded like Norman Geisler at the Arkansas trial: “to posit a past creator is not to posit the eternal and personal God who is the object of religious veneration,” evidently forgetting that the organizations purveying the “scientific evidence” in Arkansas and Louisiana (such as the ICR, from whence derived John Morris) required member belief in exactly (and only) that. Alabama attorney John Zingarelli (1997) offered a similar parsing of “creation” in a Regent University Law Review article.

The effort in the Louisiana case to sell Creation Science as 100% Bible Free didn’t set well with creationists who wanted the link to the biblical foundation to be plain and clear, however, such as John Robbins (1949-2008) who accused the CRS approach of being “hostile to Christianity,” Robbins (1987). But as with Kenyon’s spin control above, the fact remained that when not trying to sell the carefully trimmed product to legislators, Creation Scientists never deviated from a strict concordance between the Bible and the evidence of nature, and so could readily agree to just the “scientific evidence” being presented since they were sure there was only one destination once that was done. “The biblical model is always at least compatible with the general creation mode,” declared Henry Morris (1987, 19, 57) to Jerry Falwell’s Fundamentalist Journal readership, so that “the real facts in the created world of God bear precisely the same testimony.” Similarly, when YEC David Plaisted (2006) affirmed: “Why Teaching Creationism in the Public Schools is Not Teaching Religion.”

Scalia bought into all this, and acted as though Creation Science not only operated from a pristine Ivory Tower of careful reasoning and evidence, but had also been unjustly kicked out of that loft by the machinations of mainstream science:

1. “Although creation science is educationally valuable and strictly scientific, it is now being censored from or misrepresented in the public schools.” In fact, “Teachers have been brainwashed by an entrenched scientific establishment composed almost exclusively of scientists to whom evolution is like a ’religion.’ These scientists discriminate against creation scientists, so as to prevent evolution’s weaknesses from being exposed.”

At no point did Scalia question whether this populist rant even slightly correlated to the actual situation in modern science—which would naturally have been harder to evaluate given the narrow slice of witnesses presented by Keith. In Edwards v. Aguillard, “Justice Brennan cited the testimony of the president of the Louisiana Science Teachers Association, who said that no new legislation was necessary to allow the teaching of any scientific concept based on established fact,” Schimmelpfennig (1987, 253), which related to the idea that the Balanced Treatment Act was aimed at allowing the introduction of evidence that couldn’t pass muster without that leg up.

The giant issue in the case was therefore whether a motivated minority could be granted the exclusive right to impose their filter on establishing things to be facts for the general population, with the imprimatur of law about it, a thoroughfare more than broad enough to permit the YEC caravan Richard Bliss (1983) had in mind when he complained about “Evolutionary Indoctrination and Decision-Making in Schools” over at the Institute for Creation Research.

A bit later Scalia bent over backwards to justify another mandate of the law, further cementing the hold doctrinal creationists were being gifted:

the Act requires the Governor to designate seven creation scientists who shall, upon request, assist local school boards in developing the curriculum guides. § 17:286.7B. But none of these provisions casts doubt upon the sincerity of the legislators’ articulated purpose of “academic freedom”—unless, of course, one gives that term the obviously erroneous meanings preferred by the Court. The Louisiana legislators had been told repeatedly that creation scientists were scorned by most educators and scientists, who themselves had an almost religious faith in evolution. It is hardly surprising, then, that, in seeking to achieve a balanced, “nonindoctrinating” curriculum, the legislators protected from discrimination only those teachers whom they thought were suffering from discrimination.

Louisiana science teachers who thought the “scientific evidence” being put forward by the ICR and company was arrant twaddle would not be accorded any “academic freedom” of their own to demure—they would have no choice but to present the creationist-approved conception of a “balanced” curriculum. And so did Scalia offer a blank check to the nation’s legislators when it comes to public education: you may decree just about anything you like, provided you sincerely believe it to be so. Flat Earth anyone?

1. “The censorship of creation science has at least two harmful effects. First, it deprives students of knowledge of one of the two scientific explanations for the origin of life, and leads them to believe that evolution is proven fact; thus, their education suffers, and they are wrongly taught that science has proved their religious beliefs false. Second, it violates the Establishment Clause. The United States Supreme Court has held that secular humanism is a religion.”

There are two large and misleading bombs being thrown in this final claim. First that it would apparently be impermissible for secular education to ever say anything that conflicts with someone’s religious belief. The Louisiana case got started in the first place after Keith’s son came home saying his religious beliefs were ridiculed by a teacher at school—according to Schimmelpfennig (1987, 238), asked on the origin of man, the reply Keith’s son had given (“God created the world, and God created Man.”) was considered unsatisfactory. Concern over human evolution has been the primary hot button issue along with the origin of life, but those are not the only issues where theological toes can be stepped on.

Anyone embracing the claims of Young Earth Creationism is going to be repeating “evidence” that will make regular science teachers blanch, no getting around it, with endless opportunities for mixed signals. A Kentucky high school student “Jacob” complained to Answers in Genesis (2000e) how “evolutionist doctrines have been crammed down my throat, and my belief in the Lord Jesus Christ has been ridiculed without respite,” though he offered no examples of that abuse apart from a teacher who overheard a conversation he had with another student over “the science of special creation” and told him that he was “ignorant” and expressed sympathy for “science teachers who have to cope with students like me.”

So was the Kentucky teacher even a nonbeliever, or just someone who considered Flood Geology pseudoscience? The Young Earth Creation Club (2002a) didn’t stop to consider such possibilities when Jacob’s case was added to their list of “Religious/Scientific Bigotry in the Public Schools and Scientific careers.” The “shoved down our throats” metaphor continues to show up in antievolutionary culture as Intelligent Design becomes the package of choice for their beliefs, such as in a Montana “objective origins” school board battle recounted by Victoria Clark (2004) where no actual instances of persecution could be documented. Once a siege mentality takes hold, though, no Intelligent Design filter is fine enough to guarantee what manner of antievolution evidence will be excluded, so that Robert Gentry’s polonium halos are considered far more legitimate than the paleontology or geology evidence they will not accept, such as the views in Young Earth Creation Club (2002b)—all of which is still up and running for visitors to their website in 2014.

The second grenade in Scalia’s fifth topic was the arbitrary conflation of the physical argument for natural evolution with the purely philosophical position of Secular Humanism, which has been an active cottage industry among creationists for some time. When Dale Crowley of the National Bible Knowledge Association unsuccessfully sued the Smithsonian Institution in 1978 over its evolution exhibits, it was on the grounds that taxpayer money was being spent to promote the “religion” of evolution (atheism in its trendy new garb of “secular humanism”).

In the “equal time” taffy pull, while one camp insisted how nonreligious Creation Science could be, their compatriots were simultaneously trying to haul evolution over the metaphysical wall to declare it just as religious as creation, Toumey (1994, 49). Such arguments persist today, from YEC Randall Hedtke (2002) to the busy ID apologetics of John Calvert (2009), Cornelius Hunter (2009a-b) and Casey Luskin (2009l; 2014aq) detecting atheistic underpinnings to evolution at every turn before answering yea to “is atheism a religion?” Calvert’s 2009 piece will come up again in section 1.7 regarding the Dover caseÂ

Courts can deem secular humanism as a “religion” insofar as equal protection and access are concerned regarding people’s deeply held beliefs, though not without qualms from the secular camp, such as Jerry Coyne (2014y), but underlying such legal opinion there is an ongoing Kulturkampf context that cannot be overlooked.

Readers of Jerry Falwell’s Fundamentalist Journal were warned by Beck (1982, 16) that, “secular humanism is dangerous and must be opposed because it makes the gospel unintelligible”—though one might argue that the Bible is quite capable of doing that on its own, without any outside assistance—and this theological perspective provides a panoramic worldview in which creationism offers a compact rallying cry. When Norman Geisler (1983b) decried “What Is Happening to Our Freedom?” in a piece for the Fundamentalist Journal, he brought up the Arkansas trial as a cautionary example—but never mentioned the YEC beliefs that were at the root of it, but spent pages complaining about the inroads of Secular Humanism. By the time Arizona State University legal scholar Marianne Jennings (2000) contributed a guest column for the conservative watchdog group Accuracy in Media about enforcement of the Establishment Clause, creationism only appeared as a peripheral caboose in a long train of Kulturkampf grievances:

Instruction in science and social issues absent religious perspective is state imposition of secularism. Imagine a faith Catholic child required to sit sullen but mute through discussions on birth control. Think of the awkward moments a Mormon child feels as she sits through discussions of safe sex, AIDS and condoms. Think of the permissible discussions of Kwanza as a Christian child remains silent about her family’s celebration. Without a discussion of abstinence, the school has advocated a faith of promiscuity and egoism. Absence of creationism is a state position against religion.

There is a modest kernel of truth to the Secular Humanism trope that fuels such concern, since in its capitalized version it has been offered as a secular religion for people less impressed with the godly ones, as I noted of John Dewey’s ambivalence on religion when discussing Joe Renick in section 1.4 above. But granting all that, how exactly is one to pirouette from so narrow a pedestal to perform a proxy tarring of the broad population of working evolutionary scientists, as the Louisiana Creation Scientists tried to do, involving many tens of thousands of people? The presumption that the scientific community operates as some invidious cabal (never mind the religious convictions of many of them) was a caricature that Scalia seemed in no hurry to discard.

Such philosophy aside, there is a deeper methodological snag that Scalia showed no awareness of. In what possible way would any Secular Humanist “religion” of particular scientists bear on the methodological cogency of the work they do in their field? Say, a paper on the evolution of vertebrae in sauropod dinosaurs, or any other natural history subject—either the work has marshaled sufficient evidence to make its case or it has not. Which means, of course, that there should exist standards of evidence to be compared to.

Although the Big Picture philosophies of scientists certainly play roles in driving what interests or annoys them, they are methodologically irrelevant when playing the science game itself. There is no such thing as Buddhist chemistry or Secular Humanist astronomy or Christian geology or Hindu paleontology—there is only chemistry, astronomy, geology and paleontology, grounded on observation and openly displayed reasoned argument. As the pretentiously named International Center for Scientific Integrity (2013a) put it: “In science, motives don’t matter—only the evidence matters.” Unfortunately, the external resources for “the evidence” offered at International Center for Scientific Integrity (2013c) consisted of only Cornelius Hunter, Casey Luskin and John West, along with Kuhn (1970) dangled as though ID represented an impending “paradigm shift” on a par with the examples covered by Thomas Kuhn (1922-1996) in The Structure of Scientific Revolutions (most recently in modern physics from quantum theory to Einstein).

Certainly a creationist scientist could do science just as easily as an atheist—unless their ideologies were getting in the way of what data they were presenting, precluding their acceptance of theologically unacceptable results, at which point the background philosophy would definitely matter. Or should have, unless the upshot of Edwards v. Aguillard was ignored. While Steve Fuller (2008, 42) skipped over the issue in his cursory mention of Edwards v. Aguillard before marching off to the Dover case, Rachel Ramer (1994) offering antievolutionary debating tips for Hank Hanegraaff’s Christian Research Institute objected to the Edwards v. Aguillard inquiry into the religious predilection of the Creation Science witnesses as “beside the point.” A check of CRI’s website in March 2014 found Ramer’s piece reposted with a 2009 date but without revision (or improvement).

These methodological underpinnings of science are surveyed in Chapter 1 of Downard (2004), but for now it will suffice to note that here lies a deep root of why creationism crashes and burns so thoroughly (though never in their own reflection)—a major analytical fallacy that Scalia might have spotted more easily had he not acted as though Senator Keith’s miniscule creationist road show could somehow substitute for the working scientific community and the range of their actual beliefs.

Having condensed the pith of the creationist complaints, Scalia repeated the mantra that Mawyer did above: “Senator Keith repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine.” And here we stumble onto another mighty technicality Scalia persisted in not seeing. Provided one didn’t specifically favor Baptist or Catholic or any other sectarian vantage, one might spin yourself into thinking you were staying clear of endorsing any particular religious view in the Louisiana case. But the law was playing favorites nonetheless, as even Scalia ought to have known, given that he summarized it in the first point above: only Creation Science (as conceived and packaged exclusively by doctrinal Christian Young Earth Creationists) was deemed by law to be the sole alternative to the (purportedly godless) evolution.

Now imagine if you passed a law mandating that everyone who didn’t feel up for walking or using public transportation had to get a car. You further insisted you are not favoring any particular manufacturers in this endeavor, but the law declares that the only cars to merit licensing shall be those bearing the constellation Pleiades on their grill. In such an event you might feel that the lawmakers were protesting a bit too much, and check to see whether any of their relatives might be working at a Subaru dealership (no offense to the car company, by the way, they just happen to have a product logo well suited to my analogy).

But Scalia was already flying too high over the data to tumble over such fine distinctions. Earlier in his dissent he had shown far grander ambitions for the Balanced Treatment Act:

Our cases in no way imply that the Establishment Clause forbids legislators merely to act upon their religious convictions. We surely would not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved.

Scalia did not want to “deprive religious men and women of their right to participate in the political process. Today’s religious activism may give us the Balanced Treatment Act, but yesterday’s resulted in the abolition of slavery, and tomorrow’s may bring relief for famine victims.” As explored in Chapter 6 of Downard (2004), the supporters of Bible-based human slavery were just as active as religiously motivated abolitionists (which is why America ended up fighting a Civil War to resolve the “controversy” there), and so represents a dicey moral episode that Scalia might well have done not to have brought up—but the famine relief example was a plain category mistake. Government funding of famine relief would involve only the delivery of food and services to the afflicted parties; it would say nothing about matters of fact (such as whether certain people might have been descended from a particular son of Noah after he Flood) or conceptual ideas about whether droughts were divinely directed (independently of whether some of the religious participants in the relief efforts or their backers might have believed such things).

The Balanced Treatment Act operated in an entirely different realm. Matters of physical fact (such as the age of the Earth, the fixity of species, or even how stars form and heavy elements are generated within them) were being dictated by legislative fiat, based exclusively on the claims fielded by groups deriving all their conclusions about what sort of evidence would be deemed permissible to be true being based on a rigidly nonnegotiable theological mandate. Schoolteachers in turn would be forbidden not to follow this playbook, required to bring up all this “scientific evidence” whenever the conventional scientific framework was presented.

It is thus very revealing that the majority opinion in Edwards v. Aguillard directly addressed what it was the act advocated (as quoted above) while Scalia effortlessly glided past its specific content or potential application as he dashed off to defend the Louisiana legislature, deciding that the law couldn’t have flown “on the wings of fundamentalist religious fervor” because “only a small minority of the State’s citizens belong to fundamentalist religious denominations” (as though religious conservatives in heavily Catholic Louisiana couldn’t have been just as sympathetic to creationist views without camping in an overtly “fundamentalist” church). Since the act did resoundingly pass in the end, Scalia might have thought through this step in his logic a bit more thoroughly.

And so a legal case which involved Young Earth Creationists being given privileged license to define what constituted valid scientific argument was morphed by Scalia into nothing more than an occasion to recognize the right of people with strong religious convictions not to be barred from the public square (such as people feeling obliged to offer criticism of evolutionary thinking) or ever have their belief shins poked by whatever they might encounter in public education (no matter what that belief may be) provided it was based on a religious conviction. Here we have the ultimate Get Out of Jail Free card, though in Louisiana only one group was afforded the luxury of drawing one.

Scalia has neither revised nor retreated from this logic since. In 1994, the Tangipahoa Parish Board of Education in Louisiana wanted a disclaimer to be made whenever “the origin of life and matter” was mentioned, reminding students that such instruction was “not intended to influence or dissuade the Biblical version of Creation or any other concept,” and “urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.”

The Supreme Court struck down the Tangipahoa Parish disclaimer as yet another effort to slip scientifically spurious creationist arguments in through the cracks, though not ruling whether less explicitly religious disclaimers were prohibited, DelFattore (2007, 63-66). Scalia (2000) again dissented, joined once more by Rehnquist and the newer Justice Clarence Thomas, offering this revealing expression of what “innocuous” meant in their perception:

The only aspect of the disclaimer that could conceivably be regarded as going beyond what the rehearsing statement purports to approve is the explicit mention—as an example—of “the Biblical version of Creation.” To think that this reference to (and plainly not endorsement of) a reality of religious literature—and this use of an example that is not a contrived one, but to the contrary the example most likely to come into play—somehow converts the otherwise innocuous disclaimer into an establishment of religion is quite simply absurd.

In Regent University Law Review articles, Drew DeMott (2001) and David DeWolf (2001, 462-466) defended the parish’s stance. Like Scala, DeMott and DeWolf failed to consider what constituted relevant information, or how students were supposed to assess it in an environment flush with creationist “fact” resources, from What is Creation Science? to the burgeoning Intelligent Design literature that included Of Pandas and People. Though Francis Beckwith (2006, 110-114) recognized that the Bible focus capsized their case, he thought a purely anti-materialist slant would have been acceptable. All of which reflected a reluctance to address the sectarian motivations behind the disclaimer: that Biblical Creation was “the example most likely to come into play” because the people involved were obsessed with that aspect over all others, and operated a “design” train of their own with a long line of baggage behind their well stoked locomotive..

Who couldn’t get all warm and fuzzy over the American fair play tolerance of dissenting views in such an environment of exuberant academic freedom?

But were there no limits to this argument by legislative plebiscite? Were the players only the Young Earth Creationists seeking to erase six orders of magnitude from the age of the Earth, or the Intelligent Design advocates who by 1994 were waving copies of Denton’s Evolution: A Theory in Crisis? Couldn’t others get to bring their ball too, from historical revisionists skeptical of the Holocaust to people who think advanced ancient civilizations founded on alien intervention had existed—or even newer players, such as those who believe CIA demolition experts brought down the Twin Towers on 9/11? As we’ll be seeing in due course, there are lots of people who have their own “critical thinking” agendas to further, however little Antonin Scalia or Drew DeMott or David DeWolf stopped to think about it.