1 778 F.2d 225 (5th Cir. 1985). The suit was brought December 2, 1981, against the state of Louisiana (and others) to declare the Louisiana Balanced Treatment Act (La. Rev. Stat. Ann. § 17:286.1 to 286.7 (West 1981)) unconstitutional under the Louisiana and U.S. Constitutions. See generally Caudill, Law and Worldview: Problems in the Creation-Science Controversy, 3 J.L. & Religion 1, 19–22 (1985).Google Scholar

2 The term “creation science” refers not to the biblical account of creation, clearly a religious text, but to scientific evidence in support of the theory of creation, and inferences therefrom, such as(i) the sudden appearance in prehistory of various complex life-forms, or (ii) geological evidence pointing to a young earth. See La. Rev. Stat. Ann. § 17.286.3 (2). Nevertheless, District Judge Duplantier concluded that the act was unconstitutional because he could find no legitimate secular purpose for the act, and because the act would have the effect of promoting religion. See Aguillard v. Edwards, 765 F.2d 1251, 1254 (5th Cir. 1985). The theory of creation was perceived to be a religious belief even when fully supported by scientific evidence.Google Scholar

3 Aguillard v. Edwards, 765 F,2d 1251. The appellants argued that their affidavits, discussing facts showing that creation science is nonreligious and scientific, were uncontroverted and therefore should have been taken as established in summary review. See Fed. R. Civ. P. 56 (c). However, the Fifth Circuit Panel did not acknowledge or address the factual allegations, and did not even respond to the charge that summary judgment was reversible error. Interestingly, the seven dissenting judges against denial of rehearing en banc identified that very procedural error and found the act constitutional. 778 F.2d at 226.Google Scholar

4 See supra note 1 and accompanying text.Google Scholar

5 On December 16, 1985, Louisiana Attorney General William J. Guste, Jr., announced that the state would appeal the en banc denial. Press Release, Dec. 16, 1985, Creation Science Legal Defense Fund (1200 N. Market St., Suite J, Shreveport, La. 71107).Google Scholar

6 See id. (“‘This close split in the Court of Appeals, and the strong opinion of the seven judges, sets the case up with maximum chances for full review by the U.S. Supreme Court,' observed one constitutional scholar’) (emphasis in original).Google Scholar

7 See McLean v. Arkansas Bd. of Educ, 529 F. Supp. 1255 (E.D. Ark. 1982). See generally Caudill, supra note 1, at 7–19.Google Scholar

8 See Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927).Google Scholar

9 Papers presented at the conference, including Larson's Behind the Creation-Evolution Debate, are available in Conference Proceedings: Freedom and Faith ‘84 (April 5–8, 1984) from the Christian Legal Society, Falls Church, Virginia.Google Scholar

10 Id. at 156–63.Google Scholar

11 Larson at 24, citing Raber, “Evolution” in the High School, 14 Sch. Sci. & Mathematics 324 (1914); see J. Moore, How to Teach Creation (Without ACLU Interference) (1984).Google Scholar

12 I arson at 28–48 (discussing, among others, William Bell Riley and John Roach Straton, two progressive and influential Baptist ministers).Google Scholar

13 “The traditional picture painted by H. L. Mencken and Richard Hofstadter of Bryan as a broken, seedy, and even reactionary figure during his anti-evolution years wilts under recent scholarship.” Larson at 32.Google Scholar

14 Riley and Straton were pastors in large, northern cities, and each advocated antievolution education in their home states (Minnesota and New York, respectively). Larson at 32–33, 48. Compare Lewon-tin, Introduction, in Godfrey, ed., Scientists Confront Creationism (1983), at xxv (“Creationism is an American Institution, and it is not only American but specifically southern and southwestern”).Google Scholar

15 Larson at 39. Concern with youth in general implied concern with their education. Larson's argument that antievolutionism was part of a broader progressive social movement has been challenged by two reviewers. See Kevles, The Battle of Beliefs, New Republic, Oct. 28, 1985, at 54 (“such an interpretation is undercut by much of the evidence [Larson] provides. The predominant concern of the crusaders seemed to be religious rather than the social implications of Darwinism”), and James, The Cur-ricular Arena, Science, Dec. 13, 1985, at 1266 (“In an argument that may claim too much for the anti-evolutionists, |Larson] contends that the campaign against science was a product not only of fundamentalism … but of wider currents of progressive reform that were sweeping the county”).Google Scholar

16 See Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927) (the high school teacher's conviction for teaching evolution was overturned or, a technicality in the Tennessee Supreme Court).Google Scholar

17 Larson at 74. “The trial proved that an anti-evolution law could be passed and upheld,”id., citing F. Szasz, The Divided Mind of Protestant America, 1880–1930 (1982), at 123, and was thereby perceived as clearing the way for creationist legal activity that endures to the present.Google Scholar

18 Larson at 91. Larson traces the growth in the decades following Scopes of scientific activity through mounting governmental and public support of science education.Google Scholar

19 “The Establishment Clause has undergone a complete reinterpretation by the Supreme Court in the past forty years.” Larson at 93.Google Scholar

20 Larson at 96 (“creationists pursued neutrality through presenting creationism along with evolution”). Larson distinguishes the earlier “neutrality” argument of Bryan and others, which assumed that evolutionary teaching was antireligious, and thus that only silence regarding origins was truly neutral. Id. at 95.Google Scholar

21 Epperson v. Arkansas, 393 U.S. 97 (1968).Google Scholar

22 Larson at 116, citing McGowan, 336 U.S. 420 (1961).Google Scholar

23 Supra note 7.Google Scholar

24 Supra note 1.Google Scholar

25 “Clearly, the United States Supreme Court of 1968 believed in human evolution and assumed most modern Americans did too.” Larson at 113.Google Scholar

26 A “decisive” amicus brief filed in Epperson by the National Science Teachers Association quoted from a statement signed by 179 leading biologists “affirming that organic evolution is accepted into man's general body of knowledge by scientists and other reasonable persons who have familiarized themselves with the evidence.” Larson at 110.Google Scholar

27 “During the heyday of the anti-evolution crusade in the twenties, no court would have seriously considered a legal argument that state anti-evolution statutes violated the Establishment Clause.” Larson at 93.Google Scholar

28 “If the Legislature thinks that by reason of popular prejudice, the cause of education and the study of science generaly will be promoted by forbidding the teaching of evolution in the schools of this state, we can conceive of no grounds to justify the court's interference.” Scopes, 154 Tenn. at 117–18, 289 S.W. at 366.Google Scholar

29 Such beliefs might originate in the influences of Thomas Kuhn's so-called “paradigm theory,” see generally Kuhn, The Structure of Scientific Revolutions (1970). Also, the Critical Legal Studies movement is generally associated with such beliefs. See, e.g., Kairys's Introduction, in The Politics of Law: A Progressive Critique (ed. Kairys 1982), at 3 (“Decisions are predicated upon a complex mixture of social, political, institutional, experiential, and personal factors; however, they are expressed and justified, and largely perceived by the judges themselves, in terms of ‘facts’ that have been objectively determined and ‘law’ that has been objectively and rationally ‘found’ and ‘applied’”).Google Scholar

30 Supra note 28.Google Scholar

31 See Bazelon, Coping with Technology Through the Legal Process, 62 Cornell L. Rev. 817, 822 (1977) (“almost [no judges] have the knowledge and training to assess the merits of competing scientific arguments”).Google Scholar

32 “I should have thought that requiring the truth to be taught on any subject displayed its own secular warrant, one at the heart of the scientific method itself.” Aguillard v. Edward, 778 F.2d at 228 (Gee, J., dissenting).Google Scholar