Edwards v. Aguillard eText - Primary Source

Primary Source

Supreme Court decision

By: William J. Brennan and Antonin Scalia

Date: June 19, 1987

Source: Brennan, William J. and Antonin Scalia. Edwards v. Aguillard, 482 U.S. 578. Available online at http://laws.findlaw.com/us/482/578.html; website home page: http://laws.findlaw.com (accessed April 20, 2003).

About the Authors: William Brennan (1906–1997) received his law degree from Harvard. After serving as a trial court judge, then an appellate court judge, he was appointed to the U.S. Supreme Court in 1957. He retired from the Court for health reasons in 1990.

Antonin Scalia (1936–) graduated from Harvard Law School in 1961. After teaching at the University of Virginia and Georgetown University, he was appointed to the U.S. Supreme Court in 1986. He is noted as a consistent advocate of "textualism," or holding the Constitution to its literal meaning.


When the nineteenth-century naturalist Charles Darwin published his theory of evolution—that plants and animals had evolved over a long period of time from earlier and simpler forms of life and that man was a "co-descendant" with other mammals from a common ancestor—he challenged the fundamental religious beliefs of millions of people. In particular, Protestant fundamentalists, especially in the rural American South, condemned Darwin's theories and wanted them banned from public schools. In 1925, Tennessee passed the Butler Act, which made it illegal to teach evolution. Several people in Dayton, Tennessee, wanted to generate tourist income for the town, so they recruited John T. Scopes, a math teacher at the high school, to challenge the law. The case attracted national attention, and people flocked to Dayton. William Jennings Bryan joined the prosecution team, while Clarence Darrow, the period's most famous criminal defense lawyer, volunteered for the defense. Scopes was convicted and ordered to pay a $100 fine, but the conviction was overturned on appeal. Those favoring laws like the Butler Act were restrained by the negative press and experience of the Scopes trial.

The issue did not fade away, though. Even though the teaching of evolution was legal in all states, many biology teachers, either because they were fundamentalists themselves or they did not wish to run afoul of the school board, simply skipped the topic. Textbooks selected by committees often slighted the topic of evolution. Other states passed—or tried to pass—laws similar to the Butler Act. In the early 1980s, Louisiana passed a law requiring that "creation science"—the belief in the existence of a supernatural creator—and the theory of evolution be given equal treatment in the schools. This law was challenged, and the U.S. Supreme Court in Edwards affirmed the judgment of the district court and the court of appeals that the law was unconstitutional.


The Supreme Court, by a vote of 7 to 2, struck down the Louisiana law, holding that the law violated the establishment clause of the First Amendment to the Constitution and that it "impermissibly endorses religion." In their dissent, Justices Scalia and Rehnquist accept the state's contention that creation science is valid science and does not advance any particular religion.

Edwards has become a landmark case in this history of American jurisprudence concerning the meaning of the First Amendment, particularly the tension between the establishment clause (the state cannot "establish," or favor, a particular religion) and the free exercise clause (the state cannot interfere with the expression of religious beliefs). Dissension over the meaning of that amendment continues to this day. On the one hand are those who oppose any encroachment of religion into secular affairs, such as government and education, arguing that the First Amendment creates a "wall of separation" between church and state. Proponents of this view oppose not only the teaching of creationism in public schools but also, for example, religious displays on government grounds during traditional Christian holidays such as Christmas. On the other hand are those who argue that the purpose of the First Amendment was not to exclude religion from government but to prevent the state from favoring one religion over another (the establishment clause); the historical basis of their view in large part was the religious persecution found in England, with its state-sponsored Anglican Church. Proponents of this view argue that the nation's founders recognized the existence of God and never intended to exclude reference to the diety in public affairs; rather, they wanted American society to reflect a tolerance for all religious views (free exercise clause) without the state lending its support to one over the others.

Primary Source: Edwards v. Aguillard [excerpt]

SYNOPSIS: Justice Brennan, writing for the majority, first summarizes the Creationism Act and notes the three-part test (the Lemon test) for state involvement in religion. He concludes that the act violates the test's first part because it lacked a secular purpose and violates the second part because it advances religion. Scalia dissents, holding that the act's stated secular purpose was to advance academic freedom. He also argues that statutes should not be constitutionally required to have a secular purpose.

Justice Brennan delivered the opinion of the Court.…

The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in "creation science." …No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. Ibid. The theories of evolution and creation science are statutorily defined as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences.". . .

The Establishment Clause forbids the enactment of any law "respecting an establishment of religion." The Court has applied a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion.…

Lemon's first prong focuses on the purpose that animated adoption of the Act.… In this case, ap pellants have identified no clear secular purpose for the Louisiana Act. True, the Act's stated purpose is to protect academic freedom.… Even if "academic freedom" is read to mean "teaching all of the evidence" with respect to the origin of human beings, the Act does not further this purpose. The goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science.

While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.… It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum.… Such a ban on teaching does not promote–indeed, it undermines—the provision of a comprehensive scientific education. It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom.…

Thus we agree with the Court of Appeals' conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting "evolution by counterbalancing its teaching at every turn with the teaching of creationism."

.… we need not be blind in this case to the legislature's preeminent religious purpose in enacting this statute.…

The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.… The legislative history therefore reveals that the term "creation science," as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind.

…Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.…

The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose. The judgment of the Court of Appeals therefore is


Justice O'Connor joins all but Part II of this opinion.…

Justice Scalia, with whom The Chief Justice joins, dissenting.

Even if I agreed with the questionable premise that legislation can be invalidated under the Establishment Clause on the basis of its motivation alone, without regard to its effects, I would still find no justification for today's decision. The Louisiana legislators who passed the …Balanced Treatment Act …each of whom had sworn to support the Constitution, were well aware of the potential Establishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, …they approved the Act overwhelmingly and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, essentially on the basis of "its visceral knowledge regarding what must have motivated the legislators," …that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent. Had requirements of the Balanced Treatment Act that are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the manner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gallop, by impugning the motives of its supporters.…

We have relatively little information upon which to judge the motives of those who supported the Act. About the only direct evidence is the statute itself and transcripts of the seven committee hearings at which it was considered.… Nevertheless, there is ample evidence that the majority is wrong in holding that the Balanced Treatment Act is without secular purpose.…

Before summarizing the testimony of Senator Keith and his supporters, I wish to make clear that I by no means intend to endorse its accuracy. But my views (and the views of this Court) about creation science and evolution are (or should be) beside the point. Our task is not to judge the debate about teaching the origins of life, but to ascertain what the members of the Louisiana Legislature believed. The vast majority of them voted to approve a bill which explicitly stated a secular purpose; what is crucial is not their wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be.…

The Act's reference to "creation" is not convincing evidence of religious purpose. The Act defines creation science as "scientific evidenc[e]," …and Senator Keith and his witnesses repeatedly stressed that the subject can and should be presented without religious content.… We have no basis on the record to conclude that creation science need be anything other than a collection of scientific data supporting the theory that life abruptly appeared on earth.… Creation science, its proponents insist, no more must explain whence life came than evolution must explain whence came the inanimate materials from which it says life evolved.…

The legislative history gives ample evidence of the sincerity of the Balanced Treatment Act's articulated purpose.…

In sum, even if one concedes, for the sake of argument, that a majority of the Louisiana Legislature voted for the Balanced Treatment Act partly in order to foster (rather than merely eliminate discrimination against) Christian fundamentalist beliefs, our cases establish that that alone would not suffice to invalidate the Act, so long as there was a genuine secular purpose as well. We have, moreover, no adequate basis for disbelieving the secular purpose set forth in the Act itself, or for concluding that it is a sham enacted to conceal the legislators' violation of their oaths of office. I am astonished by the Court's unprecedented readiness to reach such a conclusion, which I can only attribute to an intellectual predisposition created by the facts and the legend of Scopes …an instinctive reaction that any governmentally imposed requirements bearing upon the teaching of evolution must be a manifestation of Christian fundamentalist repression. In this case, however, it seems to me the Court's position is the repressive one. The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. 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.… Yet that illiberal judgment, that Scopes-in-reverse, is ultimately the basis on which the Court's facile rejection of the Louisiana Legislature's purpose must rest.…

Because I believe that the Balanced Treatment Act had a secular purpose, which is all the first component of the Lemon test requires, I would reverse the judgment of the Court of Appeals and remand for further consideration.

I have to this point assumed the validity of the Lemon "purpose" test. In fact, however, I think the pessimistic evaluation that The Chief Justice made of the totality of Lemon is particularly applicable to the "purpose" prong: it is "a constitutional theory [that] has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results.…"

Our cases interpreting and applying the purpose test have made such a maze of the Establishment Clause that even the most conscientious governmental officials can only guess what motives will be held unconstitutional.…

Given the many hazards involved in assessing the subjective intent of governmental decisionmakers, the first prong of Lemon is defensible, I think, only if the text of the Establishment Clause demands it. That is surely not the case. The Clause states that "Congress shall make no law respecting an establishment of religion." One could argue, I suppose, that any time Congress acts with the intent of advancing religion, it has enacted a "law respecting an establishment of religion"; but far from being an unavoidable reading, it is quite an unnatural one.… It is, in short, far from an inevitable reading of the Establishment Clause that it forbids all governmental action intended to advance religion; and if not inevitable, any reading with such untoward consequences must be wrong.

In the past we have attempted to justify our embarrassing Establishment Clause jurisprudence on the ground that it "sacrifices clarity and predictability for flexibility." One commentator has aptly characterized this as "a euphemism …for …the absence of any principled rationale." I think it time that we sacrifice some "flexibility" for "clarity and predictability." Abandoning Lemon's purpose test—a test which exacerbates the tension between the Free Exercise and Establishment Clauses, has no basis in the language or history of the Amendment, and, as today's decision shows, has wonderfully flexible consequences—would be a good place to start.

Further Resources


Brisbin, Richard A. Justice Antonin Scalia and the Conservative Revival. Baltimore, Md.: Johns Hopkins University Press, 1997.

Gould, Stephen Jay. Ever Since Darwin: Reflections in Natural History. New York: Norton, 1977.

Haught, John F. God After Darwin: A Theology of Evolution. Boulder, Col.: Westview, 2000.

Irons, Peter H., and Stephanie Guitton. May It Please the Court: The Most Significant Oral Arguments Made Before the Supreme Court Since 1955. New York: New Press, 1984.

Larson, Edward J. Summer. For the Gods: the Scopes Trial and America's Continuing Debate over Science and Religion. New York: BasicBooks, 1997.

Miller, Kenneth R. Finding Darwin's God: A Scientist's Search For Common Ground Between God and Evolution. New York: Cliff Street Books, 1999.

Numbers, Ronald L. The Creationists. New York: Knopf, 1992.


The Talk.origins Archive. Available online at http://www.talkorigins.org/ (accessed February 13, 2003).