as justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.
A victory by the presumptive Democratic nominee, Barack Obama, would probably mean preserving the uneasy but roughly balanced status quo, since the justices who are considered most likely to retire are liberal. A win for his Republican counterpart, John McCain, could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.
Among those issues is surely evolution education. Twenty-one years ago, the Supreme Court struck down a Louisiana law requiring equal time for evolution and creationism. Last week, Louisiana passed another creationist bill ? the leading edge of the next generation of creationist assaults on evolution, one designed to dodge existing legal precedents.
Should that law, or one like it, reach the Supreme Court, what would happen?
In 1987, the Court voted 7-2 to strike down the law. Scalia and Rehnquist voted to uphold the law. Since then, Rehnquist was replaced by Roberts (a wash), and the court gained conservative Justices Alito and Thomas (who is more conservative even than Scalia). Justice Kennedy, who voted against the Louisiana Bill, is now the crucial swing vote on the Court, and shows a disturbing tendency to waffle on key issues. Assuming he remains firm in his anti-creationism, though, we now have a 5-4 court if the same law were presented. A single McCain judge could overturn Edwards v. Aguillard.
Such a ruling would doubtless follow the template of Scalia’s dissent in Edwards. In that dissent, Scalia and Rehnquist accepted at face value affidavits by creationists Dean Kenyon and others, who insisted (in the words of Scalia and Rehnquist) “creation science is a strictly scientific concept that can be presented without religious reference,” and that therefore, “we must assume that the Balanced Treatment Act does not require the presentation of religious doctrine.” The majority, by contrast, held that “The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind.”
The majority also held that “The Act does not further its stated secular purpose of ‘protecting academic freedom.’ ? the contention that the Act furthers a ‘basic concept of fairness’ by requiring the teaching of all of the evidence on the subject is without merit.” The dissenters, by contrast, treated “academic freedom” as “students’ freedom from indoctrination,” a decidedly idiosyncratic definition which has no similarity to that used by AAUP. They felt that “[i]t surpasses understanding how the Court can see in this [requirement that creationism be taught if evolution is presented] a purpose ‘to restructure the science curriculum to conform with a particular religious viewpoint,’ ‘to provide a persuasive advantage to a particular religious doctrine,’ ‘to promote the theory of creation science which embodies a particular religious tenet,’ and ‘to endorse a particular religious doctrine.”
To those who see the Act’s references to “creation,” and it’s insistence on a 6,000 year old earth on which life was specially created, as straightforward evidence of religious influence, the dissenters argued that “The Act defines creation science as ‘scientific evidence,’ and Senator Keith and his witnesses repeatedly stressed that the subject can and should be presented without religious content.” And that was good enough for them.
The majority (which might become a minority under a President McCain) found that not only was there enough evidence from religious statements by bill supporters to show a clear religious purpose in the law, they also ruled that “the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint,” because “[o]ut of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects.”
Now is the time to act against this possibility. Aside from generous donations to NCSE, ACLU and Americans United, you should do what you can to see that we have a President who will nominate good justices, and elect a Senate that will not confirm bad ones. My advice is to give generously to Barack Obama and to Jim Slattery or any of the candidates in the Road to 60.