Speaking of Science

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In Court : Science vs. Creationism

Posted by jns on 15 September 2010

Someplace in my reading recently I happened upon the “memorandum opinion” in McLean v. Arkansas Board of Education (1982). My attention was drawn to it because of a remark about how it “defined science”. Well, I wouldn’t go so far as “defined” although the characteristics of the scientific enterprise are outlined, and that may have been a first for American jurisprudence (but I haven’t made a study of that history yet).

Judge William R. Overton summarizes the case succinctly in his introduction:

On March 19, 1981, the Governor of Arkansas signed into law Act 590 of 1981, entitled “Balanced Treatment for Creation-Science and Evolution-Science Act.” The Act is codified as Ark. Stat. Ann. &80-1663, et seq., (1981 Supp.). Its essential mandate is stated in its first sentence: “Public schools within this State shall give balanced treatment to creation-science and to evolution-science.” On May 27, 1981, this suit was filed (1) challenging the constitutional validity of Act 590 on three distinct grounds.


The grounds were 1) that it violated the establishment clause of the First Amendment to the US Constitution; 2) that it violates a right to academic freedom guaranteed by the First Amendment; and 3) that it is impermissibly vague and thereby violates the Due Process Clause of the Fourteenth Amendment.

The judge ruled in favor of plaintiffs, enjoining the Arkansas school board “from implementing in any manner Act 590 of the Acts of Arkansas of 1981″. So, there is where so-called “scientific creationism” was pushed back out of the scientific classrooms, and the reason creationists began–yet again–with rebranding and remarketing creationism, this time as “intelligent-design” creationism, to try to wedge it back into the scientific curriculum.

The opinion is refreshingly brief and to the point. It’s difficult to avoid the impulse simply to quote the whole thing.

In his discussion of the strictures of the “Establishment of Religion” clause, Judge Overton quotes from opinions by Supreme-Court Justices Black and Frankfurter

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or what ever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause … was intended to erect “a wall of separation between church and State.”
[Justice Black, Everson v. Board of Education (1947)]

Designed to serves as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government from irreconcilable pressures by religious groups, or religion from censorship and coercion however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual’s church and home, indoctrination in the faith of his choice. [Justice Frankfurter, McCollum v. Board of Education (1948)]

The phrases that jump out at me are “means at least this” and ” the public school must keep scrupulously free from entanglement in the strife of sects”. He also quotes Justice Clark (Abbington School District v. Schempp (1963)) as saying “[s]urely the place of the Bible as an instrument of religion cannot be gainsaid.”

Put them together and it’s quite clear, as Judge Overton wrote, that “[t]here is no controversy over the legal standards under which the Establishment Clause portion of this case must be judged.” Of course, this doesn’t keep certain christianist sects from repeatedly trying to assert that their version of a holy book is somehow an American historical and cultural book and not an “instrument of religion”. To the objective observer, of course, those repeated attempts merely underscore the importance and continuing relevance of vigilance in keeping schools “scrupulously free from entanglement in the strife of sects”.

Judge Overton begins section II this way:

The religious movement known as Fundamentalism began in nineteenth century America as part of evangelical Protestantism’s response to social changes, new religious thought and Darwinism. Fundamentalists viewed these developments as attacks on the Bible and as responsible for a decline in traditional values.

He continues with more brief historical notes about “Fundamentalism” (NB. his remark that it traces its roots to the nineteenth century) and its renewed concerns with each passing generation that America is finally succumbing to secularism and its civilization is at last crumbling, paralleling the conviction of millennialists that their longed for second coming of Jesus is forever imminent. Perhaps needless to say, since I am a scientist, I’d like to see predictions about the second coming and the end of civilization given a time limit so that, when said events fail to materialize in the required time, we can consider the parent theories to be disproven.

In particular he notes that fundamentalist fever was pervasive enough that teaching evolution was uncommon in schools from the 1920s to the 1960s; sentiment and practice only changed as a response to Sputnik anxiety in the early 1960s, when curricula were revamped to emphasize science and mathematics. In response, the concepts of “creation science” and “scientific creationism” were invented as a way to repackage the usual anti-evolution ideas. As Judge Overton says

Creationists have adopted the view of Fundamentalists generally that there are only two positions with respect to the origins of the earth and life: belief in the inerrancy of the Genesis story of creation and of a worldwide flood as fact, or a belief in what they call evolution.

It’s a false dichotomy, of course, but is an idea heavily promoted (usually implicitly) by modern creationists. Of course, it’s a double edged sword: when creationists work so hard to instill the idea that it can only be creationism or Darwinism, they are perceived as losing big when creationism is, yet again, crossed off as a viable “science” option by the courts.

In the remainder of this section Judge Overton examines in some detail the testimony and evidence of “Paul Ellwanger, a respiratory therapist who is trained in neither law nor science.” It’s revealing stuff, demonstrating that “Ellwanger’s correspondence on the subject shows an awareness that Act 590 is a religious crusade, coupled with a desire to conceal this fact.” It’s an arrogance on the part of creationists that we’ve seen over and over again, his recommending caution in avoiding any linkage between creationism and religion and yet continually using rhetoric about Darwinism as the work of Satan. There’s more that I won’t detail here. His conclusion for this section:

It was simply and purely an effort to introduce the Biblical version of creation into the public school curricula. The only inference which can be drawn from these circumstances is that the Act was passed with the specific purpose by the General Assembly of advancing religion.

In a nice rhetorical flourish, Judge Overton echoes this conclusion in the opening of section III:

If the defendants are correct and the Court is limited to an examination of the language of the Act, the evidence is overwhelming that both the purpose and effect of Act 590 is the advancement of religion in the public schools.

Section 4 of the Act provides:

Definitions, as used in this Act:

  • (a) “Creation-science” means the scientific evidences for creation and inferences from those scientific evidences. Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth’s geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds.
  • (b) “Evolution-science” means the scientific evidences for evolution and inferences from those scientific evidences. Evolution-science includes the scientific evidences and related inferences that indicate: (1) Emergence by naturalistic processes of the universe from disordered matter and emergence of life from nonlife; (2) The sufficiency of mutation and natural selection in bringing about development of present living kinds from simple earlier kinds; (3) Emergence by mutation and natural selection of present living kinds from simple earlier kinds; (4) Emergence of man from a common ancestor with apes; (5) Explanation of the earth’s geology and the evolutionary sequence by uniformitarianism; and (6) An inception several billion years ago of the earth and somewhat later of life.
  • (c) “Public schools” means public secondary and elementary schools.

The evidence establishes that the definition of “creation science” contained in 4(a) has as its unmentioned reference the first 11 chapters of the Book of Genesis. Among the many creation epics in human history, the account of sudden creation from nothing, or creatio ex nihilo, and subsequent destruction of the world by flood is unique to Genesis. The concepts of 4(a) are the literal Fundamentalists’ view of Genesis. Section 4(a) is unquestionably a statement of religion, with the exception of 4(a)(2) which is a negative thrust aimed at what the creationists understand to be the theory of evolution (17).
Both the concepts and wording of Section 4(a) convey an inescapable religiosity. Section 4(a)(1) describes “sudden creation of the universe, energy and life from nothing.” Every theologian who testified, including defense witnesses, expressed the opinion that the statement referred to a supernatural creation which was performed by God.

Defendants argue that : (1) the fact that 4(a) conveys idea similar to the literal interpretation of Genesis does not make it conclusively a statement of religion; (2) that reference to a creation from nothing is not necessarily a religious concept since the Act only suggests a creator who has power, intelligence and a sense of design and not necessarily the attributes of love, compassion and justice (18); and (3) that simply teaching about the concept of a creator is not a religious exercise unless the student is required to make a commitment to the concept of a creator.

The evidence fully answers these arguments. The idea of 4(a)(1) are not merely similar to the literal interpretation of Genesis; they are identical and parallel to no other story of creation (19).

Judge Overton continues to draw connections between the act’s definition of creation science, coupled with testimony, and it’s undeniable connections to religious doctrine and its lack of identifiable standing as anything that might conceivably be identified as “science”. He also examines, and denies, the creationists’ false dichotomy that I mentioned above that the origin of humankind must be described either by Darwinism or creationism.

And then he makes these exceptionally straightforward assertions:

In addition to the fallacious pedagogy of the two model [false dichotomy] approach, Section 4(a) lacks legitimate educational value because “creation-science” as defined in that section is simply not science. Several witnesses suggested definitions of science. A descriptive definition was said to be that science is what is “accepted by the scientific community” and is “what scientists do.” The obvious implication of this description is that, in a free society, knowledge does not require the imprimatur of legislation in order to become science.

More precisely, the essential characteristics of science are:
(1) It is guided by natural law;
(2) It has to be explanatory by reference to natural law;
(3) It is testable against the empirical world;
(4) Its conclusions are tentative, i.e. are not necessarily the final word; and
(5) Its is falsifiable. (Ruse and other science witnesses).

Creation science as described in Section 4(a) fails to meet these essential characteristics. First, the section revolves around 4(a)(1) which asserts a sudden creation “from nothing.” Such a concept is not science because it depends upon a supernatural intervention which is not guided by natural law. It is not explanatory by reference to natural law, is not testable and is not falsifiable (25).

If the unifying idea of supernatural creation by God is removed from Section 4, the remaining parts of the section explain nothing and are meaningless assertions.

Section 4(a)(2), relating to the “insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism,” is an incomplete negative generalization directed at the theory of evolution.

Section 4(a)(3) which describes “changes only within fixed limits of originally created kinds of plants and animals” fails to conform to the essential characteristics of science for several reasons. First, there is no scientific definition of “kinds” and none of the witnesses was able to point to any scientific authority which recognized the term or knew how many “kinds” existed. One defense witness suggested there may may be 100 to 10,000 different “kinds.” Another believes there were “about 10,000, give or take a few thousand.” Second, the assertion appears to be an effort to establish outer limits of changes within species. There is no scientific explanation for these limits which is guided by natural law and the limitations, whatever they are, cannot be explained by natural law.

The statement in 4(a)(4) of “separate ancestry of man and apes” is a bald assertion. It explains nothing and refers to no scientific fact or theory (26).

Section 4(a)(5) refers to “explanation of the earth’s geology by catastrophism, including the occurrence of a worldwide flood.” This assertion completely fails as science. The Act is referring to the Noachian flood described in the Book of Genesis (27). The creationist writers concede that any kind of Genesis Flood depends upon supernatural intervention. A worldwide flood as an explanation of the world’s geology is not the product of natural law, nor can its occurrence be explained by natural law.

Section 4(a)(6) equally fails to meet the standards of science. “Relatively recent inception” has no scientific meaning. It can only be given in reference to creationist writings which place the age at between 6,000 and 20,000 years because of the genealogy of the Old Testament. See, e.g., Px 78, Gish (6,000 to 10,000); Px 87, Segraves(6,000 to 20,000). Such a reasoning process is not the product of natural law; not explainable by natural law; nor is it tentative.

“Creation science…is simply not science.” Now, there’s an unequivocal statement! This was a very clear death knell for creationism in its guise as “creation [so-called] science” and the beginnings of the ill-concealed attempt to rebrand religious creationism, this time as “intelligent design”.

Please note that the five “characteristics of science” given above by Judge Overton are in no way a “definition” of science, which only reinforces my own impression that Judge Overton was thinking very, very clearly on the subject. I am quite ready to agree with him that the five things he lists are indeed characteristic of science. It is not a comprehensive list, and it doesn’t claim to be a comprehensive list–another thoughtful and precise step on Judge Overton’s part–but they are correct, precise, and enough in this last section of his opinion to counter very thoroughly the claims of creationism to being a science.

This gets us about halfway through Judge Overton’s opinion and this listing of some “characteristics of science”, and I’ll stop here. Before I read the opinion I feared, based on the evidently casual and inaccurate comment that led me to it, that the Judge may indeed have tried to “define” science, a difficult task that I was convinced hardly belonged in court proceedings. I was delighted to discover that Judge Overton instead developed careful and precise “characteristics of science” that served the purpose of the court and are undeniably correct.

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