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Darwin’s Poisoned Tree

Atheistic Advocacy and the Constitutionality of Teaching Evolution in Public Schools Published in Trinity Law Review, Vol. 21 (1), pp. 130-233

This article appears in the Fall, 2015 issue of the legal journal Trinity Law Review, Vol. 21 (1), pp. 130-233, published by Trinity Law School.

Click here for a PDF of the full article.


 Darwin’s Poisoned Tree: Atheistic Advocacy and the Constitutionality of Teaching Evolution in Public Schools

The teaching of biological origins in public schools is a contentious and highly debated area of the law. If there is any fixed star of this evolving legal field, it is the U.S. Supreme Court’s 1968 holding in Epperson v. Arkansas that “[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”1

Following this mandate for state neutrality in evolution education, various courts and legal scholars have opposed the teaching of alternatives to evolution by citing an historical connection between opposition to evolution and the advocacy of “fundamentalist” religion.2 One author contends that attempts to teach non-evolutionary viewpoints of biological origins are unconstitutional because such viewpoints are associated with religion, making them “[f]ruit of the poison tree.”3 Another scholar similarly suggests that some educational policies that sanction critique of evolution entail “government measures that arise from a constitutionally problematic history” and are therefore “tainted . . . fruit of the poisonous tree.”4 Kristi L. Bowman warns that under current law, the “religious motivation of many involved in the intelligent design movement” might taint any analysis into the government purpose behind policies supporting the teaching of intelligent design, rendering them unconstitutional.5 Multiple cases have considered the historical connection between religion and opposition to evolution when striking down educational policies that challenged evolution. (These cases are discussed in Part 1A of this article.) As this article will show, such reasoning, if applied fairly and consistently, could also threaten the constitutionality of teaching evolution itself — an outcome that is neither pedagogically desirable nor legally necessary.

The effect prong of the Lemon test requires that the primary effect of a government policy neither “advance[]”norinhibit[]” religion.6 Various courts have found that policies which encourage teaching alternatives to evolution have the primary effect of advancing religion because these alternatives have historical ties to religion. But what if there are parallel historical associations between anti-religious activism and the advocacy of evolution? This could lead to objective perceptions that teaching evolution endorses such anti-religious advocacy, thereby inhibiting religion, or endorsing and advancing non-theistic or atheistic religious viewpoints.

If the public is aware of the close historical association between the advocacy of evolution and anti-religious activism, then the teaching of evolution may make many religious Americans feel like political outsiders.7 Despite the fact that many scientific organizations and some influential religious organizations officially support compatibility between evolution and religion, widely known anti-religious activism associated with evolution could also “poison the tree” from which evolution-education falls. The past ten years have seen the rise of a vocal group of “new atheists” who vehemently maintain that evolution refutes religious belief. But the arguments of “new atheists” are hardly new — such arguments have been widespread and widely known throughout society since the time of Darwin. Given such an historical association between evolution and anti-religious activism, current tests for assessing the constitutionality of teaching theories of biological origins, when applied fairly, could conceivably render the teaching of evolution unconstitutional.

There are good reasons to expect that such an unwanted outcome can be avoided. Science stands or falls on the evidence. Evolution is a legitimate scientific theory that public schools should be able to teach. The personal religious (or anti-religious) beliefs, motives, affiliations, and even activism of evolutionary scientists do not determine whether their views about evolution are scientific, or scientifically correct. In keeping with this principle, some legal tests for interpreting the Establishment Clause avoid committing the genetic fallacy, and appreciate that historical connections between a particular viewpoint and religious (or anti-religious) advocacy are secondary to determining whether that viewpoint actually is scientific.

Legitimate scientific theories like evolution should not be disbarred from science classrooms simply because of the religious (or anti-religious) views and activism of their proponents. Therefore, in order to preserve the teaching of evolution, it may be necessary to revise legal tests that are applied to assess the constitutionality of teaching biological origins. To put it bluntly, if evolution is to be continued to be taught in public schools, courts must abandon inquiries which look at the historical associations between a viewpoint on origins and religion (or non-religion).

Preemptive Clarification

Many have tried to equate the teaching of evolution with advocating atheism or secular humanism in attempts to bar evolution from the classroom (see Part 3A of this article). Having evolution declared unconstitutional to teach in public schools is neither my desire nor the necessary result of my argument. Though I am a scientific skeptic of neo-Darwinian evolution, I firmly believe that it can be formulated as a scientific theory and that teaching evolution in public school science classrooms should remain constitutional. Unlike some critics of evolution, I do not believe evolution is a religion.

Additionally, from the outset I must recognize that many religious persons, indeed many devout Christians who are scientists, claim to find no conflict between evolution and their religious views. Though a huge proportion of Darwinians are atheists or secular humanists, many are not.

Therefore, I am not arguing that all evolutionary scientists are atheists who preach an anti-religious message, nor am I arguing that acceptance of neo-Darwinian theory mandates belief in atheism or abandonment of traditional theism. My purpose in this present article is not to enter the debate about the correct relationship between neo-Darwinian evolution and religion. Rather, this article aims to review how leading advocates of evolution have promoted their views alongside anti-religious activism in a way which, under current legal tests, could be perceived as inhibiting, denigrating, or actively opposing religion, and endorsing antireligious viewpoints. Any fair analysis must conclude that under current law, the anti-religious activities and rhetoric associated with the advocacy of evolution threatens the teaching of evolution in public schools.

The problem, however, is not with the scientific theory of evolution or the activities and activism of its advocates, but rather with the current legal tests that are used to assess whether a concept is constitutional to teach in public schools. My aim is to expose a deficiency in some current legal tests that could disbar the teaching of evolution and propose new tests whereby the teaching of evolution in public schools can be safely justified.

Many might wish to dismiss the anti-religious activism associated with the advocacy of evolution as constitutionally irrelevant. However, pro-religious activism associated with opposition to evolution has long been cited to prevent public schools from teaching non-evolutionary views. If evolution is associated with anti-religious activism, this must factor into constitutional analyses. Jurists who appreciate that justice is blind and that the law must be applied fairly will agree that current legal tests striking down such non-evolutionary views could similarly jeopardize the teaching of evolution.

Indeed, leading pro-evolution activists seem well-aware of this threat to teaching evolution in public schools. A spokesman for the nation’s leading pro-Darwin lobbyist organization, the National Center for Science Education (NCSE), counseled his fellow Darwin-advocates that “We don’t need the anti-creationists going and mixing their views on religion into their science. In fact, this is probably the surest path to disaster politically and in the courts.”8 Renowned University of Wisconsin-Madison historian of the evolution debate, Ronald Numbers, likewise observes that evolution’s ties to atheism could potentially threaten its place in public schools:

In the United States, our public schools are supposed to be religiously neutral. If evolution is in fact inherently atheistic, we probably shouldn’t be teaching it in the schools. And that makes it very difficult when you have some prominent people like Dawkins, who’s a well-credentialed biologist, saying, ‘It really is atheistic.’ He could undercut — not because he wants to — but he could undercut the ability of American schools to teach evolution.9

Michael Ruse, a leading Darwinian philosopher of science at Florida State University whose testimony in the 1982 McLean v. Arkansas case underpinned Judge Overton’s ruling that creationism isn’t science, agrees that those who enlist Darwin to attack religion might unwittingly cause teachers who present evolution to “violate the separation of church and state”:

A major part of the atheist attack is that science has shown that the God hypothesis is silly. Suppose this is true — that if you are a Darwinian, then you cannot be a Christian. How then does one answer the creationist who objects to the teaching of Darwinism in schools? Sauce for the goose is sauce for the gander. If theism cannot be taught in schools (in America) because it violates the separation of church and state, why then should Darwinism be permitted? If Darwinism leads to atheism, does this not also violate the separation of church and state?10

If Darwinian evolution has anti-religious associations, then under current law, these could be a constitutional barrier to teaching it in public schools. But does there exist such a close historical tie between evolution and antireligious activism? If such historical associations exist, those who support fairness and neutrality in the law are now left with two choices: either teaching evolution must be deemed unconstitutional, or courts must abandon legal tests that consider the historical relationship between religious (or anti-religious) activism and the advocacy of theories of biological origins. The former option not only has disastrous consequences for science education, but it contradicts longstanding legal precedent that supports the constitutionality of teaching evolution. This article therefore suggests that historical analyses of associations between scientific advocacy and religious (or anti-religious) viewpoints should be abandoned, and that courts should consider new legal doctrines in order to justify teaching evolution.

Jurists who understand that the law must be applied fairly will also see immediate implications for the constitutionality of teaching nonevolutionary theories of origin, such as intelligent design (ID). If antireligious activism associated with the advocacy of evolution is not fatal to teaching evolution, then in a symmetrical manner, any religious (or antireligious) advocacy associated with ID cannot be constitutionally fatal to teaching that concept as well.

Summary of Argument

Part I will recount the various courts that have scrutinized the historical association between views on biological origins and religious activism, and expound upon the constitutional implications of societal perceptions of those historical associations. After discussing how the endorsement test assesses the objective perceptions of government actions, I will argue that a publicly-known historical association between the advocacy of evolution and anti-religious activism could render the teaching of evolution unconstitutional under current law.

For those unconvinced that evolution bears close historical ties to anti-religious activism, Part II provides extensive documentation summarizing the close historical relationship between advocacy for evolution and anti-religious activism. Space limitations prevent expanding Part II beyond about a few hundred footnotes, but this author has already collected numerous additional sources that reveal a close historical association between the advocacy of evolution and anti-religious activism. To continue the analogy, this section will review the “poison in the tree” of evolution. This history of evolution advocacy includes:

  • A long-standing public perception of “warfare” between evolution and religion;
  • Associations between anti-religious ideas and evolution drawn by Darwin and other 19th century intellectuals;
  • A long history of public promotion of evolution by leading scientists and academics alongside anti-religious activism (including a recent escalation in such activities);
  • Promotion of evolution in mainstream biology textbooks in manners that many would consider hostile towards theistic religion;
  • Strong advocacy for evolution by atheist organizations;
  • Extensive promotion of evolution in the liberal arts, social sciences, popular press, and media, found alongside antireligious rhetoric;
  • The common use of “dysteleology” in evolution advocacy, a theological argument where evolution is purportedly demonstrated by arguing against the action of God;
  • Widespread efforts to explain the origin of human religion and morality in evolutionary terms that would be perceived to conflict with common religious teachings.

Finally, Part III will argue that the solution is not to declare evolution unconstitutional, as that would overturn decades of legal precedent holding that teaching evolution is legal and harm student learning. This section will recount various lawsuits that have tried and failed to ban evolution from the classroom. It will be argued that teaching evolution is good pedagogy because neo-Darwinism has been tremendously influential in modern biology. Excluding a scientific viewpoint from classrooms simply because of the religious (or anti-religious) advocacy of its proponents is not only bad law, it would harm science education.

My conclusion is that courts must jettison from their constitutional analysis any consideration of religious (or anti-religious) advocacy on the part of proponents of a view on biological origins. This solution allows courts to simultaneously recognize the historical fact of evolution advocacy’s close ties with anti-religious activism, and allow the teaching of scientific theories like evolution which have a primary effect that advances scientific knowledge.11 Any effects upon religion are incidental or secondary to that primary effect.12 This is the antidote to Darwin’s poisoned tree. It can save the teaching of evolution in public schools, but it will require a revision of current legal tests regarding the constitutionality of teaching viewpoints of origins. As a result of this revision, the cultural history of non-evolutionary views and their associations with religious (or anti-religious) advocacy can no longer be considered germane to a constitutional analysis under the Establishment Clause. If the law is to be applied fairly and symmetrically, this conclusion must be equally true for assessing the teaching of ID in public schools as it is for teaching evolution.

This page represents only a small portion of this article. To read the full article as a PDF, click here.

References Cited

  1. Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (citations omitted).
  2. See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 716 (M.D. Pa. 2005); Selman v. Cobb Cty. Sch. Dist., 390 F. Supp. 2d 1286, 1306 (N.D. Ga. 2005), vacated, 449 F.3d 1320, 1323 (11th Cir. 2006); Jon D. Miller, Eugenie C. Scott, & Shinji Okamoto, Public Acceptance of Evolution, 313 SCI. 765 (2006).
  3. Todd R. Olin, Note, Fruit of the Poison Tree: A First Amendment Analysis of the History and Character of Intelligent Design Education, 90 MINN. L. REV. 1107 (2006).
  4. Asma T. Uddin, Evolution Toward Neutrality: Evolution Disclaimers, Establishment Jurisprudence Confusions, and a Proposal of Untainted Fruits of a Poisonous Tree, 8 RUTGERS J. L. & RELIGION 12 (2007) (citations omitted).
  5. Kristi L. Bowman, Seeing Government Purpose Through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates, 29 HARV. J.L. & PUB. POL’Y 417, 468 (2006) (Bowman notes that this sort of analysis is precisely what rendered the policy unconstitutional in Selman v. Cobb County.); See also Philip Sparr, Note, Special “Effects”: Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005), and the Fate of Intelligent Design in our Public Schools, 86 NEB. L. REV. 708, 735 (2008) (“By exhaustively tracing ID’s heritage to creationism and creation science, the court effectively foreclosed the questions of ID’s scientific legitimacy under a purpose or effects prong analysis.”).
  6. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added).
  7. See Jana R. McCreary, This Is the Trap the Courts Built: Dealing with the Entanglement of Religion and the Origin of Life in American Public Schools, 37 SW. U. L. REV. 1, 67 (2008) (“The school districts that have such policies in place are not showing neutrality—those who agree with the religious dogma represented by evolution feel like favored members of the community while those who disagree feel like outsiders.”).
  8. Nick Matze, THE PANDA’S THUMB (June 24, 2006, 5:41 PM), http://www.pandasthumb.org/archives/2006/06/ron_numbers_int.html#comment-107918.
  9. Steve Paulson, Seeing the Light—of Science, SALON (Jan. 2, 2007), http://www.salon.com/2007/01/02/numbers_12/.
  10. Michael Ruse, Book Review, 98 ISIS 814–16 (2007) (reviewing RICHARD DAWKINS, THE GOD DELUSION (2006)).
  11. Theresa Wilson, Evolution, Creation, and Naturally Selecting Intelligent Design out of the Public Schools, 34 U. TOL. L. REV. 203, 232 (2003). (“[I]f a theory has scientific value and evidence to support it, its primary effect would be to advance knowledge of the natural world, not to advance religion. The ultimate goal of schools is to educate students. Where a theory has scientific value and supporting evidence, it provides a basis for knowledge. Whether it coincidentally advances [or inhibits] religion should not matter.”).
  12. David K. DeWolf, John G. West, & Casey Luskin, Intelligent Design Will Survive Kitzmiller v. Dover, 68 MONT. L. REV. 7, 46–48 (2007).

Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.